Endangered and Threatened Wildlife and Plants; Listing the Lesser Prairie-Chicken as a Threatened Species With a Special Rule, 26302-26308 [2013-10497]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 78, Number 87 (Monday, May 6, 2013)]
[Proposed Rules]
[Pages 26302-26308]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10497]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

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


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

AGENCY: Fish and Wildlife Service, Interior.

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

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to create 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). In addition, we announce 
the reopening of the public comment period on the December 11, 2012, 
proposed rule to list the lesser prairie-chicken as a threatened 
species under the Act. We also announce the availability of a draft 
rangewide conservation plan for the lesser prairie-chicken, which has 
been prepared by the Lesser Prairie-Chicken Interstate Working Group, 
and request comments on the plan as it relates to our determination of 
status under section 4(a)(1) of the Act.

DATES: We will accept comments received or postmarked on or before June 
20, 2013. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for 
public hearings, in writing, at the address shown in ADDRESSES by June 
20, 2013.

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

FOR FURTHER INFORMATION CONTACT: Dixie Porter, Field Supervisor, 
Oklahoma Ecological Services Field Office, 9014 East 21st Street, 
Tulsa, OK 74129; by telephone 918-581-7458 or by facsimile 918-581-
7467. Persons who use a telecommunications device for the deaf (TDD) 
may call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    This document consists of: (1) A proposed special rule under 
section 4(d) of the Endangered Species Act of 1973, as amended (Act; 16 
U.S.C. 1531 et seq.), that outlines the prohibitions, and exceptions to 
those prohibitions, necessary and advisable to provide for the 
conservation of the lesser prairie-chicken; and (2) a reopening of the 
comment period for the proposed rule to list the lesser prairie-chicken 
as a threatened species under the Act.
    Why We Need To Publish a Proposed Rule. On December 11, 2012, the 
Service published a proposed rule to list the lesser prairie-chicken as 
a threatened species under the Act (77 FR 73828). At that time, the 
Service indicated that we would consider whether to subsequently 
propose a section 4(d) special rule (hereafter referred to as 4(d) 
special rule). Section 4(d) of the Act specifies that, for threatened 
species, the Secretary shall issue such regulations as [s]he deems 
necessary and advisable to provide for the conservation of the species. 
This proposed 4(d) special rule provides measures that are tailored to 
the conservation needs of the lesser prairie-chicken.
    What Is the Effect of This Proposed Rule? At the time of the 2012 
proposed listing rule (77 FR 73828), we indicated that we would 
consider whether to subsequently propose a 4(d) special rule for the 
lesser prairie-chicken. We are now proposing a 4(d) special rule and 
intend to finalize it concurrent with the final listing rule, if the 
results of our final listing determination conclude that threatened 
species status is appropriate.
    The proposed 4(d) special rule allows for take of the lesser 
prairie-chicken incidental to activities conducted pursuant to a 
comprehensive conservation program that was developed by or in 
coordination with a State agency and that has been determined by the 
Service pursuant to the criteria outlined in this proposed rule to 
provide a net conservation benefit to the lesser prairie-chicken. 
Additionally, the proposed 4(d) special rule provides that any take of 
lesser prairie-chickens incidental to agricultural activities that are 
included within a conservation plan developed by the Natural Resources 
Conservation Service (NRCS) for private agricultural lands in 
connection with NRCS's Lesser Prairie-Chicken Initiative (LPCI), as 
specified in this proposed rule, is not a prohibited action under the 
Act. If an activity resulting in take of lesser prairie-chicken is not 
exempted under this 4(d) special rule, then the general prohibitions at 
50 CFR 17.31 would apply. We would require a permit for such an 
activity as specified in our regulations. Nothing in this proposed 4(d) 
special rule affects the consultation requirements under section 7 of 
the Act.

[[Page 26303]]

    The Basis for Our Action. Under section 4(d) of the Act, the 
Secretary of the Interior has discretion to issue such regulations as 
[s]he deems necessary and advisable to provide for the conservation of 
the species. The Secretary also has the discretion to prohibit by 
regulation with respect to a threatened species any act prohibited by 
section 9(a)(1) of the Act.

Public Comments

    To allow the public to comment simultaneously on this proposed 4(d) 
special rule, the proposed listing rule, and the draft rangewide 
conservation plan for the lesser prairie-chicken prepared by the Lesser 
Prairie-Chicken Interstate Working Group, we also announce the 
reopening of the comment period on the Service's December 11, 2012, 
proposed rule to list the lesser prairie-chicken as a threatened 
species under the Act. We intend to finalize the 4(d) special rule 
concurrent with the final listing rule, if the result of our final 
listing determination concludes that threatened species status is 
appropriate. Any final action resulting from the proposed rules will be 
based on the best scientific and commercial data available and be as 
accurate and as effective as possible. Therefore, we request comments 
or information from other concerned governmental agencies, Native 
American tribes, the scientific community, industry, general public, 
and other interested parties concerning the proposed listing rule and 
4(d) special rule. We particularly seek comments regarding:
    (1) The historical and current status and distribution of the 
lesser prairie-chicken, its biology and ecology, specific threats (or 
lack thereof) and regulations that may be addressing those threats and 
ongoing conservation measures for the species and its habitat.
    (2) Information relevant to the factors that are the basis for 
making a listing determination for a species under section 4(a) of the 
Act, which are:
    (a) The present or threatened destruction, modification, or 
curtailment of the species' habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence and threats to the species or its habitat.
    (3) Application of the Lesser Prairie-Chicken Interstate Working 
Group's draft rangewide conservation plan to our determination of 
status under section 4(a)(1) of the Act, particularly comments or 
information to help us assess the certainty that the rangewide 
conservation plan will be effective in conserving the lesser prairie-
chicken and will be implemented.
    (4) Which areas would be appropriate as critical habitat for the 
species and why areas should or should not be proposed for designation 
as critical habitat, including whether any threats to the species from 
human activity would be expected to increase due to the designation and 
whether that increase in threat would outweigh the benefit of 
designation such that the designation of critical habitat may not be 
prudent.
    (5) Specific information on:
    (a) The amount and distribution of habitat for the lesser prairie-
chicken;
    (b) What may constitute ``physical or biological features essential 
to the conservation of the species,'' within the geographical range 
currently occupied by the species;
    (c) Where these features are currently found;
    (d) Whether any of these features may require special management 
considerations or protection;
    (e) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
why; and
    (f) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (6) Information on the projected and reasonably likely impacts of 
climate change on the lesser prairie-chicken and its habitat.
    (7) Whether measures outlined in this proposed 4(d) special rule 
are necessary and advisable for the conservation and management of the 
lesser prairie-chicken.
    (8) Information concerning whether it would be appropriate to 
include in the 4(d) special rule a provision that would allow continued 
enrollment in existing Candidate Conservation Agreements with 
Assurances for the lesser prairie-chicken. These existing agreements 
would be recognized as Service-approved conservation plans and their 
take authorization and continued enrollment would be provided for under 
this 4(d) special rule.
    (9) Information concerning whether it would be appropriate to 
include in the 4(d) special rule a provision for take of lesser 
prairie-chickens in accordance with applicable State law for 
educational or scientific purposes, the enhancement of propagation or 
survival of the species, zoological exhibition, and other conservation 
purposes consistent with the Act.
    (10) Information concerning whether it would be appropriate to 
include in the 4(d) special rule a provision for take of lesser 
prairie-chickens in the course of State-managed hunting programs for 
the lesser prairie-chicken or incidental to hunting activities directed 
at greater prairie-chicken (Tympanuchus cupido), including any 
information about State management plans related to hunting regulations 
and any measures within those plans that may avoid or minimize the risk 
of lesser prairie-chicken mortality incidental to lawful hunting for 
the greater prairie-chicken.
    (11) Whether and how the Service should expand the scope of this 
4(d) special rule to encourage landowners removing their lands from the 
Conservation Reserve Program to continue managing those areas for the 
benefit of the lesser prairie-chicken.
    (12) Whether and how the Service should expand the scope of this 
4(d) special rule to encourage farmers and ranchers not participating 
in the Natural Resources Conservation Service's Lesser Prairie-Chicken 
Initiative to manage their lands for the benefit of the lesser prairie-
chicken.
    (13) Whether the Service should expand the scope of this 4(d) 
special rule to allow incidental take of lesser prairie-chickens if the 
take results from implementation of a comprehensive lesser prairie-
chicken conservation program that was developed by an entity other than 
a State agency or their agent(s).
    (14) Additional provisions the Service may wish to consider for a 
4(d) special rule in order to conserve, recover, and manage the lesser 
prairie-chicken.
    We will consider all comments and information received during our 
preparation of a final determination on the status of the species and 
the 4(d) special rule. Accordingly, the final decision may differ from 
this proposal.
    Please note that comments merely stating support for or opposition 
to the actions under consideration without providing supporting 
information, although noted, will not be considered in making a 
determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.

[[Page 26304]]

    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov. 
Please include sufficient information with your comments to allow us to 
verify any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Oklahoma Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    A settlement agreement in In re Endangered Species Act Section 4 
Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 
10, 2011) was reached with WildEarth Guardians in which we agreed to 
submit a proposed listing rule for the lesser prairie-chicken to the 
Federal Register for publication by September 30, 2012. On September 
27, 2012, the settlement agreement was modified to require that the 
proposed listing rule be submitted to the Federal Register on or before 
November 29, 2012. On December 11, 2012, we published in the Federal 
Register a proposed rule to list the lesser prairie-chicken as a 
threatened species under the Act (77 FR 73828). The proposed listing 
rule had a 90-day comment period, ending March 11, 2013. We held a 
public meeting and hearing in Woodward, Oklahoma, on February 5, 2013; 
in Garden City, Kansas, on February 7, 2013; in Lubbock, Texas, on 
February 11, 2013; and in Roswell, New Mexico, on February 12, 2013. 
Pursuant to the settlement agreement, a final listing determination is 
to be submitted to the Federal Register on or before September 30, 
2013, unless the Secretary finds that substantial disagreement exists 
regarding the sufficiency or accuracy of the available data relevant to 
the listing determination, in which case the final listing 
determination is to be submitted to the Federal Register on or before 
March 31, 2014.
    For information on previous Federal actions pertaining to the 
lesser prairie-chicken, please refer to the proposed listing rule, 
which we published in the Federal Register on December 11, 2012 (77 FR 
73828).

Background

    This document discusses only those topics directly relevant to the 
proposed 4(d) special rule for the lesser prairie-chicken. For more 
information on the lesser prairie-chicken and its habitat, please refer 
to the December 11, 2012, proposed listing rule (77 FR 73828), which is 
available online at https://www.regulations.gov (at Docket Number FWS-
R2-ES-2012-0071) or from the Oklahoma Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT).
    As discussed in the proposed listing rule, the primary factors 
supporting the proposed threatened species status for the lesser 
prairie-chicken are the impacts of cumulative habitat loss and 
fragmentation. These impacts are the result of conversion of grasslands 
to agricultural uses; encroachment by invasive woody plants; wind 
energy development; petroleum production; and presence of roads and 
manmade vertical structures including towers, utility lines, fences, 
turbines, wells, and buildings.
    The Act does not specify particular prohibitions, or exceptions to 
those prohibitions, for threatened species. Instead, under section 4(d) 
of the Act, the Secretary of the Interior has the discretion to issue 
such regulations as [s]he deems necessary and advisable to provide for 
the conservation of such species. The Secretary also has the discretion 
to prohibit by regulation with respect to any threatened species, any 
act prohibited under section 9(a)(1) of the Act. Exercising this 
discretion, the Service developed general prohibitions (50 CFR 17.31) 
and exceptions to those prohibitions (50 CFR 17.32) under the Act that 
apply to most threatened species. Alternately, for other threatened 
species, the Service may develop specific prohibitions and exceptions 
that are tailored to the specific conservation needs of the species. In 
such cases, some of the prohibitions and authorizations under 50 CFR 
17.31 and 17.32 may be appropriate for the species and incorporated 
into a special rule under section 4(d) of the Act, but the 4(d) special 
rule will also include provisions that are tailored to the specific 
conservation needs of the threatened species and may be more or less 
restrictive than the general provisions at 50 CFR 17.31.
    At the time of the proposed listing rule, we indicated that we 
would consider whether to subsequently propose a 4(d) special rule for 
the lesser prairie-chicken. In that proposed rule, we solicited public 
comments as to which prohibitions, and exceptions to those 
prohibitions, are necessary and advisable to provide for the 
conservation of the lesser prairie-chicken. In recognition of 
conservation efforts that provide for conservation and management of 
the lesser prairie-chicken and its habitat in a manner consistent with 
the purposes of the Act, we are now proposing a 4(d) special rule that 
outlines the prohibitions, and exceptions to those prohibitions, 
necessary and advisable for the conservation of the lesser prairie-
chicken.
    Since the time of the proposed listing rule, the Lesser Prairie-
Chicken Interstate Working Group, in association with the Western 
Association of Fish and Wildlife Agencies, has drafted a rangewide 
conservation plan for the lesser prairie-chicken. We would like to 
consider the conservation measures in this plan in our final listing 
determination for the lesser prairie-chicken. As such, we are reopening 
the comment period to allow the public an opportunity to provide 
comment on the draft plan as it applies to our determination of status 
under section 4(a)(1) of the Act, particularly comments or information 
to help us assess the certainty that the rangewide conservation plan 
will be effective in conserving the lesser prairie-chicken and will be 
implemented. The draft plan is available on the Internet in Docket No. 
FWS-R2-ES-2012-0071 at https://www.regulations.gov.

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

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

Conservation Programs

    The Service proposes that take incidental to activities conducted 
pursuant to a comprehensive conservation program that was developed by 
or in coordination with the State agency or agencies responsible

[[Page 26305]]

for the management and conservation of fish and wildlife within the 
affected State(s), or their agent(s), that has a clear mechanism for 
enrollment of participating landowners, and that has been determined by 
the Service to provide a net conservation benefit to the lesser 
prairie-chicken, will not be prohibited. In making its determination, 
the Service will consider:
    (i) Whether the program comprehensively addresses all the threats 
affecting the lesser prairie-chicken within the program area;
    (ii) Whether the program 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;
    (iii) Whether the program administrators demonstrate the capability 
and funding mechanisms for effectively implementing all elements of the 
conservation program, including enrollment of participating landowners, 
monitoring of program activities, and enforcement of program 
requirements;
    (iv) Whether the program employs an adaptive management strategy to 
ensure future program adaptation as necessary and appropriate; and
    (v) Whether the program includes appropriate monitoring of 
effectiveness and compliance.
    The Service proposes this 4(d) special rule in recognition of the 
significant conservation planning efforts occurring throughout the 
range of the lesser prairie-chicken for the purpose of reducing or 
eliminating threats affecting the species. Multiple Federal and State 
agencies have developed localized conservation programs throughout the 
range of the lesser prairie-chicken, and these programs have provided a 
conservation benefit to the species. However, existing programs do not 
address the suite of factors contributing to cumulative habitat loss 
and fragmentation, the species' primary threat, across the entire five-
state range of the lesser prairie-chicken.
    The criteria presented here are meant to encourage the development 
of a coordinated and comprehensive effort to improve habitat conditions 
and the status of the species across its entire range. For the Service 
to approve coverage of a comprehensive conservation program under this 
4(d) special rule, the program must provide a net conservation benefit 
to the lesser prairie-chicken population. Conservation, as defined in 
section 3(3) of the Act, means ``to use and the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary.'' The program must also be 
periodically reviewed by the Service and determined that it continues 
to provide a net conservation benefit to the lesser prairie-chicken. As 
a result of this provision, the Service expects that rangewide 
conservation actions will be implemented with a high level of certainty 
that the program will lead to the long-term conservation of the lesser 
prairie-chicken.

Agricultural Activities

    The Service proposes that take of the lesser prairie-chicken will 
not be prohibited provided the take is incidental to activities that 
are conducted in accordance with NRCS's Lesser Prairie-Chicken 
Initiative (LPCI).
    The LPCI provides 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 practice standards 
encompassed by the LPCI focus primarily on upland wildlife habitat 
management and include brush management, prescribed grazing, range 
planting, prescribed burning and restoration of rare and declining 
habitats. In all, 22 conservation practice standards are implemented 
under the LPCI.
    The Service issued a conference report to the NRCS in connection 
with the NRCS's LPCI on June 30, 2011 (https://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. 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.
    This provision of the proposed 4(d) special rule for agricultural 
activities 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.

Proposed Determination

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

[[Page 26306]]

any of these), import or export, 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 proposed 4(d) special rule 
proposes that all prohibitions in 50 CFR 17.31(a) and (b) will apply to 
the lesser prairie-chicken, except in two instances.
    First, we propose that none of the provisions in 50 CFR 17.31 would 
apply to actions that result from activities associated with a 
comprehensive conservation program developed by or in coordination with 
the State agency or agencies responsible for the management and 
conservation of fish and wildlife within the affected State(s), or 
their agent(s), and that the Service determines provides a net 
conservation benefit for the lesser prairie-chicken. The 4(d) special 
rule identifies a set of criteria the Service proposes to use to 
evaluate such programs. Among additional considerations, the approval 
criteria require that the program provides lesser prairie-chicken 
population and habitat targets necessary to ensure a net conservation 
benefit for the species across the plan area in addition to mechanisms 
for achieving those targets. In this way, actions in the comprehensive 
conservation program will ultimately contribute to the conservation of 
the species. Conservation is defined in section 3(3) of the Act as ``to 
use and the use of all methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to the Act are no longer 
necessary.'' As a result of this provision, the Service expects that 
rangewide conservation actions will be implemented with a high level of 
certainty that the program will lead to the long-term conservation of 
the lesser prairie-chicken.
    Second, we also propose that none of the provisions in 50 CFR 17.31 
would apply to actions resulting from activities that are included in 
or covered under NRCS's Lesser Prairie-Chicken Initiative (LPCI). 
According to the proposed rule, the primary factors supporting the 
proposed threatened status for the lesser prairie-chicken are the 
impacts of cumulative habitat loss and fragmentation. Allowing the 
continuation of agricultural operations consistent with these criteria 
encourages landowners to continue managing the remaining landscape in 
ways that meet the needs of their operation while simultaneously 
providing suitable habitat for the lesser prairie-chicken.
    Based on the rationale explained above, the provisions included in 
this proposed 4(d) special rule are necessary and advisable to provide 
for the conservation of the lesser prairie-chicken. Nothing in this 
proposed 4(d) special rule changes in any way the recovery planning 
provisions of section 4(f) and consultation requirements under section 
7 of the Act or the ability of the Service to enter into partnerships 
for the management and protection of the lesser prairie-chicken.

Additional Provisions Under Consideration

    The Service is considering several additional provisions and 
specifically seeks information and comment on the following issues at 
this time.
    First, several approved candidate conservation agreements (CCAs) 
and candidate conservation agreements with assurances (CCAAs) are in 
place for the lesser prairie-chicken. We are seeking comment on a 
provision that would allow continued enrollment in the existing CCAs 
and CCAAs beyond the effective date of a final listing determination, 
if the results of our final listing determination conclude that 
threatened species status is appropriate. The approved agreements for 
the lesser prairie-chicken include the CCA/CCAA for Lesser Prairie-
Chicken and Sand Dune Lizard in New Mexico, developed cooperatively by 
the Service, the Bureau of Land Management, and the Center for 
Excellence for Hazardous Materials Management (2008); the Agricultural 
CCAA for Lesser Prairie-Chickens between Oklahoma Department of 
Wildlife Conservation and the Service (2013); and the CCAA for Lesser 
Prairie-Chickens Between Texas Parks and Wildlife Department and the 
Service (2006).
    The Service is also considering whether it is appropriate to 
include a provision for take of lesser prairie-chicken when that take 
is in accordance with applicable State law for educational or 
scientific purposes, the enhancement of propagation or survival of the 
species, zoological exhibition, and other conservation purposes 
consistent with the Act. An example of an activity that could be 
covered under such a provision includes presence/absence and population 
monitoring surveys. Such surveys are typically conducted during the 
breeding season and may cause disturbance on the breeding grounds, 
particularly when flush counts are used to estimate the number of birds 
attending those leks. Occasionally recorded calls are used to aid in 
the detection of known or suspected leks, which may cause some 
disturbance of courting males. However, if surveys are conducted in 
accordance with scientifically accepted methodologies, minimal short-
term impact to lesser prairie-chickens, primarily in the form of 
harassment, should occur.
    The Service is also considering whether it is appropriate to 
include a provision for take of lesser prairie-chickens in the course 
of State-managed hunting programs for the lesser prairie-chicken or 
incidental to legal hunting activities directed at greater prairie-
chickens. These two species, which are similar in appearance, overlap 
in portions of approximately 12 counties in Kansas. Limited mortality 
of lesser prairie-chickens occurs as a result of hunting activities 
directed at greater prairie-chickens. We request information and 
comment on these issues, including State management plans related to 
hunting regulations and any measures within those plans that may avoid 
or minimize the risk of lesser prairie-chicken mortality from hunting 
for greater prairie-chickens.
    Finally, the Service is also considering whether it is appropriate 
to expand the scope of the 4(d) special rule to: (a) Encourage 
landowners removing their lands from the Conservation Reserve Program 
to continue managing those areas for the benefit of the lesser prairie-
chicken; (b) encourage farmers and ranchers not participating in the 
Natural Resources Conservation Service's Lesser Prairie-Chicken 
Initiative to manage their lands for the benefit of the lesser prairie-
chicken; and (c) allow incidental take of lesser prairie-chickens if 
the take results from implementation of a comprehensive lesser prairie-
chicken conservation program that was developed by an entity other than 
a State agency or their agent(s) or was developed without coordination 
with a State agency or their agent(s).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our determination of status for this species is based on 
scientifically sound data, assumptions, and analyses. We will send peer 
reviewers copies of this

[[Page 26307]]

proposed rule immediately following publication in the Federal 
Register. We will invite these peer reviewers to comment, during the 
reopening of the public comment period, on our use and interpretation 
of the science used in developing our proposed rule to list the lesser 
prairie-chicken and this proposed 4(d) special rule.
    We will consider all comments and information we receive during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Required Determinations

Clarity of the Rule

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

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

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act. This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    By letter dated April 19, 2011, we contacted known tribal 
governments throughout the historical range of the lesser prairie-
chicken. We sought their input on our development of a proposed rule to 
list the lesser prairie-chicken and encouraged them to contact the 
Oklahoma Ecological Services Field Office if any portion of our request 
was unclear or to request additional information. We did not receive 
any comments regarding this request.

References Cited

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

Authors

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 77 FR 73828 (December 11, 2012) as follows:

PART 17--[AMENDED]

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

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

0
2. Amend Sec.  17.11(h) by adding an entry for ``Prairie-chicken, 
lesser'' to the List of Endangered and Threatened Wildlife in 
alphabetical order under Birds to read as set forth below:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                                                    Vertebrate
----------------------------------------------------------                          population
                                                              Historic range          where          Status      When listed    Critical       Special
            Common name                Scientific name                            endangered or                                  habitat        rules
                                                                                    threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
               Birds
 

[[Page 26308]]

 
                                                                      * * * * * * *
Prairie-chicken, lesser...........  (Tympanuchus           U.S.A. (CO, KS, NM,   Entire                     T   ............           NA      17.41(a)
                                     pallidicinctus).       OK, TX).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
 3. Amend Sec.  17.41 by adding paragraph (a) to read as follows:


Sec.  17.41  Special rules--birds.

    (a) Lesser prairie-chicken (Tympanuchus pallidicinctus).
    (1) Prohibitions. Except as noted in paragraphs (a)(2)(i) and 
(a)(2)(ii) 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 results from any of the following:
    (i) 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 under paragraph 
(a)(2)(i)(B) of this section.
    (ii) Conservation practices on privately owned agricultural land 
which:
    (A) Are carried out in accordance with a conservation plan for such 
land developed by the Natural Resources Conservation Service (NRCS); 
and
    (B) Were evaluated in the June 30, 2011, conference report issued 
by the Service to the NRCS in connection with the NRCS's Lesser 
Prairie-Chicken Initiative.
* * * * *

    Dated: April 29, 2013.
Daniel M. Ashe,
Director, Fish and Wildlife Service.
[FR Doc. 2013-10497 Filed 5-3-13; 8:45 am]
BILLING CODE 4310-55-P