Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for Gunnison Sage-Grouse and Proposed Designation of Critical Habitat for Gunnison Sage-Grouse, 57604-57611 [2013-22706]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 78, Number 182 (Thursday, September 19, 2013)]
[Proposed Rules]
[Pages 57604-57611]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-22706]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket Nos. FWS-R6-ES-2011-0111; FWS-R6-ES-2012-0108; 4500030114]
RIN 1018-AZ20; RIN 1018-AX71


Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for Gunnison Sage-Grouse and Proposed Designation of 
Critical Habitat for Gunnison Sage-Grouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period; announcement of 
public hearings; notice of availability of supplementary documents.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment periods on our January 11, 2013, 
proposed rules to list the Gunnison sage-grouse (Centrocercus minimus) 
as endangered and to designate critical habitat for the species under 
the Endangered Species Act of 1973, as amended (Act). For the proposed 
designation of critical habitat for the Gunnison sage-grouse, we also 
announce the availability of a draft economic analysis (DEA), a draft 
environmental assessment (EA), and an amended required determinations 
section. In addition, we announce two public informational sessions and 
public hearings for both the proposed listing and proposed critical 
habitat, and we provide information on several conservation efforts 
that may be considered in our final determinations. We are reopening 
the comment periods to allow all interested parties an additional 
opportunity to comment on the proposed listing and the proposed 
designation of critical habitat, and to comment on the proposed 
critical habitat's associated DEA, draft EA, and amended required 
determinations section. Comments previously submitted need not be 
resubmitted, as they will be fully considered in preparation of the 
final rules.

DATES: Comment submission: We will consider comments received or 
postmarked on or before October 19, 2013. Comments submitted 
electronically using the Federal eRulemaking Portal (see ADDRESSES 
section, below) must be received by 11:59 p.m. Eastern Time on the 
closing date.
    Public informational sessions and public hearings: We will hold two 
public informational sessions followed by public hearings on the 
following dates:
     October 7, 2013, from 4:00-9:00 p.m., including an 
information session from 4:00-5:00 p.m., a break, and a public hearing 
from 6:00-9:00 p.m.; and
     October 8, 2013, from 4:00-9:00 p.m., including an 
information session from 4:00-5:00 p.m., a break, and a public hearing 
from 6:00-9:00 p.m..
    See the ADDRESSES section, below, for information on where these 
public informational sessions and public hearings will be held.

ADDRESSES: 
    Document availability: You may obtain copies of the January 11, 
2013, proposed rules on the Internet at https://www.regulations.gov at 
Docket No. FWS-R6-ES-2012-0108 for the proposed listing and at Docket 
No. FWS-R6-ES-2011-0111 for the proposed designation of critical 
habitat. You may obtain a copy of the draft economic analysis and the 
draft environmental assessment at Docket No. FWS-R6-ES-2011-0111. 
Alternately, you may obtain a copy of either proposed rule, the draft 
economic analysis, or the draft environmental assessment by mail from 
the Western Colorado Field Office (see FOR FURTHER INFORMATION 
CONTACT).
    Comment submission: You may submit written comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. Submit comments on the listing proposal to Docket 
No. FWS-R6-ES-2012-0108, and submit comments on the critical habitat 
proposal and associated draft economic analysis and draft environmental 
assessment to Docket No. FWS-R6-ES-2011-0111.
    (2) By hard copy: Submit comments on the listing proposal by U.S. 
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R6-ES-
2012-0108; Division of Policy and Directives Management; U.S. Fish and 
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 
22203. Submit comments on the critical habitat proposal, draft economic 
analysis, and draft environmental assessment by U.S. mail or hand-
delivery to: Public Comments Processing, Attn: FWS-R6-ES-2011-0111; 
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 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).
    Public informational sessions and public hearings: The October 7, 
2013, public informational session and public hearing will be held at 
Western State Colorado University, University Center, 600 N. Adams 
Street in Gunnison, Colorado.
    The October 8, 2013, public informational session and public 
hearing will be held at Monticello High School Auditorium, 164 South 
200 West in Monticello, Utah.
    People needing reasonable accommodations in order to attend and 
participate in the public hearing should contact Patty Gelatt, Western 
Colorado Supervisor, Western Colorado Field Office, as soon as possible 
(see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Patty Gelatt, Western Colorado 
Supervisor, U.S. Fish and Wildlife Service, Western Colorado Field 
Office, 764 Horizon Drive, Building B, Grand Junction, CO 81506-3946; 
by telephone (970-243-2778); or by facsimile (970-245-6933). Persons 
who use a telecommunications device for the deaf (TDD) may call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We will accept written comments and information during this comment 
period on: (1) Our proposed listing determination for the Gunnison 
sage-grouse that published in the Federal Register on January 11, 2013 
(78 FR 2486); (2) our proposed designation of critical habitat for the 
Gunnison sage-grouse that published in the Federal Register on January 
11, 2013 (78 FR

[[Page 57605]]

2540); (3) our DEA of the proposed critical habitat designation; (4) 
our draft EA of the proposed critical habitat designation; (5) the 
amended required determinations provided in this document for the 
proposed critical habitat designation; and (6) the issues raised in our 
July 19, 2013, Federal Register publication (78 FR 43123) regarding 
scientific disagreement about the species. We will consider information 
and recommendations from all interested parties.
    We request that you provide comments specifically on our listing 
determination under Docket No. FWS-R6-ES-2012-0108.
    We request that you provide comments specifically on the critical 
habitat determination and related DEA and draft EA under Docket No. 
FWS-R6-ES-2011-0111.
    We are particularly interested in comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act (16 U.S.C. 
1531 et seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of its 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.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species.
    (4) Existing regulations that may be addressing threats to this 
species.
    (5) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (6) Any information on the biological or ecological requirements of 
the species and ongoing conservation measures for the species and its 
habitat.
    (7) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act, including whether 
there are threats to the species from human activity, the degree of 
which can be expected to increase due to the designation, and whether 
that increase in threats outweighs the benefit of designation such that 
the designation of critical habitat is not prudent.
    (8) With respect to the proposed designation of critical habitat, 
specific information on:
    (a) The amount and distribution of Gunnison sage-grouse habitat;
    (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, in 
this case, 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 (or, in this 
case, the present time) are essential for the conservation of the 
species and why.
    (9) Land use designations and current or planned activities in the 
areas occupied by the species or proposed to be designated as critical 
habitat, and possible impacts of these activities on this species and 
proposed critical habitat.
    (10) Information on the projected and reasonably likely impacts of 
climate change on the Gunnison sage-grouse and proposed critical 
habitat.
    (11) With respect to the proposed designation of critical habitat, 
any foreseeable economic, national security, or other relevant impacts 
that may result from designating any areas that may be included in the 
final designation. We are particularly interested in any impacts on 
small entities, and the benefits of including or excluding areas from 
the proposed designation that are subject to these impacts.
    (12) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and particularly whether the benefits of 
potentially excluding any specific area outweigh the benefits of 
including that area as set forth in section 4(b)(2) of the Act. For 
instance, should the proposed designation exclude properties currently 
enrolled in the Gunnison sage-grouse candidate conservation agreement 
with assurances, properties under conservation easement, or properties 
held by conservation organizations, and why?
    (13) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    (14) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    (15) 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.
    We are also interested in comments concerning the topics raised in 
our July 19, 2013, Federal Register notice (78 FR 43123) announcing the 
extension of the timeline for issuing final determinations on the 
listing and critical habitat for the Gunnison sage-grouse due to 
scientific disagreement, which include:
    (1) Whether we have appropriately interpreted the scientific 
studies cited in the proposed rule, and whether there is additional 
scientific information we may have overlooked;
    (2) Gunnison sage-grouse population trends in each population area;
    (3) The scope and effectiveness of regulatory mechanisms enacted by 
Gunnison County to address threats to the Gunnison sage-grouse;
    (4) Projections for future residential development and human 
population growth within the Gunnison sage-grouse's range in the 
Gunnison Basin, including portions of Gunnison and Saguache Counties; 
and
    (5) What constitutes historical habitat and important current 
habitat for the species.
    If you submitted comments or information on the proposed listing 
rule (78 FR 2486) or proposed designation of critical habitat (78 FR 
2540) during their initial comment period from January 11, 2013, to 
April 2, 2013, please do not resubmit them. We will incorporate them 
into the public record as part of this comment period, and we will 
fully consider them in the preparation of our final determinations. 
Similarly, if you already submitted comments or information on either 
proposed rule in response to the July 19, 2013, announcement of 
extension of the timeline for making final determinations due to 
scientific disagreement (78 FR 43123), please do not resubmit them. We 
will incorporate them into the

[[Page 57606]]

public record as part of this comment period, and we will fully 
consider them in the preparation of our final determinations. Our final 
determinations concerning listing and critical habitat will take into 
consideration all written comments and any additional information we 
receive during all comment periods. On the basis of public comments, we 
may, during the development of our final determination, revise our 
proposed listing and/or find that areas proposed as critical habitat 
are not essential, are appropriate for exclusion under section 4(b)(2) 
of the Act, or are not appropriate for exclusion.
    You may submit your comments and materials concerning the proposed 
rules, DEA, draft EA, or amended required determinations section by one 
of the methods listed in the ADDRESSES section. We request that you 
send comments only by the methods described in the ADDRESSES section.
    If you submit a comment via https://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 https://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 rules, DEA, draft EA, 
an amended required determinations section will be available for public 
inspection on https://www.regulations.gov at Docket No. FWS-R6-ES-2012-
0108 and Docket No. FWS-R6-ES-2011-0111, or by appointment, during 
normal business hours, at the U.S. Fish and Wildlife Service, Western 
Colorado Field Office (see FOR FURTHER INFORMATION CONTACT). You may 
obtain copies of the proposed listing rule on the Internet at https://www.regulations.gov at Docket Number FWS-R6-ES-2012-0108, and the 
proposed designation of critical habitat, DEA, and draft EA on the 
Internet at https://www.regulations.gov at Docket No. FWS-R6-ES-2011-
0111. Alternately, you may obtain a copy of either proposed rule, the 
draft economic analysis, or the draft environmental assessment by mail 
from the Western Colorado Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the Gunnison sage-grouse and 
several ongoing conservation efforts for the Gunnison sage-grouse in 
the remainder of this document. For more information on the Gunnison 
sage-grouse and its habitat, or additional information on previous 
Federal actions concerning the Gunnison sage-grouse prior to January 
11, 2013, refer to the proposed listing rule published in the Federal 
Register on January 11, 2013 (78 FR 2486), which is available online at 
https://www.regulations.gov (at Docket Number FWS-R6-ES-2012-0108) or 
from the Western Colorado Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Previous Federal Actions

    On January 11, 2013, we published a proposed rule to list the 
Gunnison sage-grouse as endangered (78 FR 2486) and a proposed rule to 
designate critical habitat for the Gunnison sage-grouse (78 FR 2540). 
We proposed to designate as critical habitat approximately 1,704,227 
acres (689,675 hectares) in seven units located in Chaffee, Delta, 
Dolores, Gunnison, Hinsdale, Mesa, Montrose, Ouray, Saguache, and San 
Miguel Counties in Colorado, and in Grand and San Juan Counties in 
Utah. Those proposals initially had a 60-day comment period, ending 
March 12, 2013, but we extended the comment period by an additional 21 
days, through April 2, 2013 (78 FR 15925, March 13, 2013). On July 19, 
2013, we published a document announcing that we were extending the 
timeline for making final determinations on both proposed rules by 6 
months due to scientific disagreement, and we reopened the public 
comment period to seek additional information to clarify the issues in 
question (78 FR 43123). In accordance with that July 19, 2013, 
publication, we will submit for publication in the Federal Register a 
final listing determination and a final critical habitat designation 
for Gunnison sage-grouse on or before March 31, 2014.

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 to 
designate critical habitat for the Gunnison sage-grouse is made final, 
section 7 of the Act will prohibit destruction or adverse modification 
of critical habitat by any activity funded, authorized, or carried out 
by any Federal agency. Federal agencies proposing actions affecting 
critical habitat must consult with us on the effects of their proposed 
actions, under section 7(a)(2) of the Act.

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, unless we 
determine, based on the best scientific and commercial data available, 
that the failure to designate such areas as critical habitat will 
result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat. In the 
case of the Gunnison sage-grouse, the benefits of critical habitat 
include public awareness of the presence of the species and the 
importance of habitat protection, and, where a Federal action will 
occur, increased habitat protection for the Gunnison sage-grouse due to 
protection from adverse modification or destruction of critical 
habitat. In practice, Federal actions typically occur primarily on 
Federal lands or for projects undertaken by Federal agencies.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan.

[[Page 57607]]

    We have not proposed to exclude any areas from critical habitat. 
However, 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 (DEA) concerning the 
proposed critical habitat designation, which is available for review 
and comment (see ADDRESSES).

Draft Economic Analysis

    The purpose of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed critical habitat 
designation for the Gunnison sage-grouse. The DEA describes the 
economic impacts of all potential conservation efforts for the Gunnison 
sage-grouse; some of these costs will likely be incurred regardless of 
whether we designate critical habitat. The economic impact of the 
proposed critical habitat designation is analyzed by comparing 
scenarios both ``with critical habitat'' and ``without critical 
habitat.'' The ``without critical habitat'' scenario represents the 
baseline for the analysis, considering protections already in place or 
proposed for the species (e.g., under the proposed Federal listing and 
other existing Federal, State, and local regulations). The baseline, 
therefore, represents the costs incurred regardless of whether critical 
habitat is designated. The ``with critical habitat'' scenario describes 
the incremental impacts associated specifically with the designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts are those not expected to occur absent the 
designation of critical habitat for the species. In other words, the 
incremental costs are those attributable solely to the designation of 
critical habitat, above and beyond the baseline costs.
    Most courts have held that the Service only needs to consider the 
incremental impacts imposed by the critical habitat designation over 
and above those impacts imposed as a result of listing the species. For 
example, the Ninth Circuit Court of Appeals reached this conclusion 
twice within the last few years, and the U.S. Supreme Court declined to 
hear any further appeal from those rulings. (See Ariz. Cattle Growers' 
Ass'n. v. Salazar, 606 F.3d 116, (9th Cir. 2010) cert. denied, 179 L. 
Ed. 2d 300, 2011 U.S. LEXIS 1362, 79 U.S.L.W. 3475 (2011); Home 
Builders Ass'n of N. Cal. v. United States Fish & Wildlife Serv., 616 
F. 3rd 983 (9th Cir. 2010) cert. denied, 179 L. Ed. 2d 300, 2011 U.S. 
LEXIS 1362, 79 U.S.L.W. 3475 (2011).)
    However, the prevailing court decisions in the Tenth Circuit Court 
of Appeals do not allow the incremental analysis approach. Instead, the 
Tenth Circuit requires that the Service consider both the baseline 
economic impacts imposed due to listing the species and the additional 
incremental economic impacts imposed by designating critical habitat. 
(See New Mexico Cattle Growers Ass'n v. FWS, 248 F.3d 1277 (10th Cir. 
2001).) .The basis for the Tenth Circuit's New Mexico Cattle Growers 
decision in 2001 was its conclusion that the regulatory definitions of 
``jeopardy'' and ``adverse modification'' were virtually identical, 
with the result, according to the court, that doing only an incremental 
analysis rendered meaningless the requirement to consider the impacts 
of critical habitat designation, as there were no incremental impacts 
to consider (New Mexico Cattle Growers Ass'n v. FWS, 248 F.3d 1283-85). 
Subsequently, the Service adopted a different definition of ``adverse 
modification,'' which has led the Ninth Circuit to conclude that the 
premise underlying the Tenth Circuit's New Mexico Cattle Growers 
decision is no longer valid and that the Service may employ incremental 
analysis in determining the economic impacts of a critical habitat 
designation (Ariz. Cattle Growers Ass'n v. Salazar, 606 F.3d 1160, 1173 
(9th Cir. 2010). Consistent with this view, on August 24, 2012, the 
Service proposed revisions to its regulations for impact analyses of 
critical habitat that clarify that it is appropriate to consider the 
impacts of designation on an incremental basis notwithstanding the New 
Mexico Cattle Growers decision (77 FR 51503). However, the proposed 
rule incorporating the incremental impact approach has not been 
finalized as of the date of the DEA or this notice. Therefore, this DEA 
analysis looks at baseline impacts incurred due to the listing of the 
species, and forecasts both baseline and incremental impacts likely to 
occur if we finalize the proposed critical habitat designation. For a 
further description of the methodology of the analysis, see Chapter 2, 
``FRAMEWORK FOR THE ANALYSIS,'' of the DEA.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for the 
Gunnison sage-grouse over the next 20 years, which was determined to be 
the appropriate period for analysis because limited planning 
information is available for most activities to forecast activity 
levels for projects beyond a 20-year timeframe. It identifies potential 
incremental costs as a result of the proposed critical habitat 
designation; these are those costs attributed to critical habitat over 
and above those baseline costs attributed to listing.
    The DEA quantifies economic impacts of Gunnison sage-grouse 
conservation efforts associated with the following categories of 
activity: (1) Livestock grazing; (2) agriculture and water management; 
(3) mineral and fossil fuel extraction; (4) residential and related 
development; (5) renewable energy development; (6) recreation; and (7) 
transportation activities.
    The DEA summarizes the total impacts likely to occur if all of the 
units proposed are designated as critical habitat. Absent the 
designation of critical habitat, conservation efforts benefitting the 
sage-grouse and its habitat would be undertaken due to the listing 
under the Act (if finalized) and existing management strategies. We 
forecast baseline impacts of $9.7 million (in present value terms over 
20 years), assuming a discount rate of 7 percent. If we assume the 
social rate of time preference is 3 percent, forecast baseline impacts 
are $12 million (in present value terms over 20 years). Quantified 
incremental impacts anticipated to result solely from this proposed 
critical habitat designation are $3.8 million (present value over 20 
years), assuming a 7 percent discount rate, or $4.7 million (present 
value over 20 years), assuming a discount rate of 3 percent. The 
Service believes that impacts forecasted in the DEA are based on 
several conservative assumptions, more likely to overstate than 
understate actual impacts, and that the more likely result would be 
lower impacts.
    The DEA presents baseline (Table 1) and incremental (Table 2) 
results across proposed critical habitat units. The largest share of 
baseline impacts are attributed to the Crawford and Gunnison Basin 
units, while the largest share of incremental costs is attributed to 
the Monticello-Dove Creek unit. In the baseline, the largest category 
of impacts is associated with transportation projects (forecast to be 
$6.1 million in present value over 20 years, discounted at 7 percent). 
These costs are borne by Federal and State agencies, and include the 
cost of species monitoring and management as well as administrative 
impacts of consultation. The largest share of incremental impacts is 
also associated with transportation activities (forecast to be $1.6 
million in present value over 20 years, discounted at 7 percent), 
followed by livestock grazing (forecast to be $1.2 million in present 
value over 20 years, discounted

[[Page 57608]]

at 7 percent) and mineral and fossil fuel extraction (forecast to be 
$1.1 million in present value over 20 years, discounted at 7 percent). 
Incremental transportation impacts consist solely of administrative 
costs, and are associated with consideration of adverse modification in 
programmatic consultations for Federal agencies and informal 
consultations for Colorado and Utah State Department of Transportation 
projects on non-Federal lands. Impacts associated with livestock 
grazing consist primarily of potential restrictions on grazing 
activities on federal lands in unoccupied habitat. These costs would be 
borne by private ranchers. We believe overall these costs represent a 
conservative estimate of potential impacts, more likely to overstate 
than understate costs, and that actual impacts are likely to be less. 
Impacts associated with mineral and fossil fuel extraction consist 
entirely of administrative impacts associated with section 7 
consultations for future well pad construction in unoccupied habitat. 
The analysis considers potential impacts to all proposed areas 
including Tribal lands. See the DEA for a more detailed discussion of 
these results.

                              Table 1--Forecast Baseline Impacts by Unit, 2013-2032
                                            [2012$, 7% Discount rate]
----------------------------------------------------------------------------------------------------------------
                             Unit                                    Present value              Annualized
----------------------------------------------------------------------------------------------------------------
Monticello-Dove Creek.........................................               $1,800,000                 $160,000
Pi[ntilde]on Mesa.............................................                1,700,000                  150,000
San Miguel Basin..............................................                  770,000                   68,000
Cerro Summit-Cimarron-Sims Mesa...............................                  320,000                   29,000
Crawford......................................................                2,300,000                  200,000
Gunnison Basin................................................                2,200,000                  190,000
Poncha Pass...................................................                  630,000                   55,000
                                                               -------------------------------------------------
    Total.....................................................                9,700,000                 850,000
----------------------------------------------------------------------------------------------------------------
Note: Entries may not sum to totals reported due to rounding. Estimates are rounded to two significant digits.


                            Table 2--Forecast Incremental Impacts by Unit, 2013-2032
                                            [2012$, 7% Discount rate]
----------------------------------------------------------------------------------------------------------------
                             Unit                                    Present value              Annualized
----------------------------------------------------------------------------------------------------------------
Monticello-Dove Creek.........................................               $1,700,000                 $150,000
Pi[ntilde]on Mesa.............................................                  610,000                   53,000
San Miguel Basin..............................................                  480,000                   42,000
Cerro Summit-Cimarron-Sims Mesa...............................                  120,000                   10,000
Crawford......................................................                  710,000                   63,000
Gunnison Basin................................................                  170,000                   15,000
Poncha Pass...................................................                   29,000                    2,500
                                                               -------------------------------------------------
    Total.....................................................                3,800,000                 340,000
----------------------------------------------------------------------------------------------------------------
Note: Entries may not sum to totals reported due to rounding. Estimates are rounded to two significant digits.

    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rules, the 
draft EA, 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 
species.

Ongoing, Landscape-Level Conservation Efforts

    Since the January 11, 2013, publication of the proposed rule to 
list the Gunnison sage-grouse as endangered (78 FR 2486) and the 
proposed rule to designate critical habitat for the Gunnison sage-
grouse (78 FR 2540), several ongoing, landscape-level conservation 
efforts have been finalized or are under development for the species. 
We anticipate completion of several of these conservation efforts prior 
to the final determinations on whether to list the Gunnison sage-grouse 
and designate critical habitat. If completed, these efforts will be 
considered in the Service's final determination on whether to list the 
Gunnison sage-grouse under the Act. Each of these efforts is expected 
to provide benefits to Gunnison sage-grouse and its habitat, and 
provide greater certainty regarding future regulation for the 
participating stakeholders. The primary conservation efforts that have 
been finalized or are occurring at this time include:
    (1) Gunnison Basin candidate conservation agreement (CCA) between 
the Service and the Bureau of Land Management (BLM), U.S. Forest 
Service, and National Park Service. Pursuant to section 7 of the Act, 
conferencing for the CCA was completed on July 30, 2013;
    (2) Design of private land conservation programs and practices 
administered by the Natural Resources Conservation Service (NRCS) to 
benefit Gunnison sage-grouse. Pursuant to section 7 of the Act, a 
conference for this action is ongoing with NRCS;
    (3) The Service and Farm Service Agency are coordinating to 
identify funding and programs on private lands that might benefit 
Gunnison sage-grouse and its habitat. For example, FSA administers the 
Conservation Reserve Program (CRP) on private lands to re-establish 
valuable land cover to help improve water quality, prevent soil 
erosion, and reduce loss of wildlife habitat. A conference pursuant to 
section 7 of the Act for FSA actions in Gunnison sage-grouse range is 
pending;
    (4) Coordination with the BLM regarding resource management plans 
and interim management for Gunnison sage-grouse conservation. The BLM 
issued an Instruction Memorandum for

[[Page 57609]]

Gunnison sage-grouse habitat management on July 16, 2013;
    (5) County-level agreements, planning, and coordination. All of the 
Counties within the range of the Gunnison sage-grouse have entered into 
a Conservation Agreement for the species;
    (6) Conservation planning and coordination with the Ute Mountain 
Ute Tribe for lands owned by the Tribe in the Gunnison Basin; and
    (7) Continued enrollment of private lands in the candidate 
conservation agreement with assurances (CCAA) program for Gunnison 
sage-grouse. The CCAA pertains to non-Federal lands in Colorado that 
are occupied by Gunnison sage-grouse, and lands that provide potential 
habitat that may be occupied by the species in the future.

Required Determinations--Amended

    In our January 11, 2013, proposed critical habitat rule (78 FR 
2540), we indicated that we would defer our determination of compliance 
with several statutes and executive orders until the information 
concerning potential economic impacts of the designation and potential 
effects on landowners and stakeholders became available in the DEA. We 
have now made use of the DEA data to make these determinations. In this 
document, we affirm the information in our proposed rule concerning 
Executive Orders (E.O.s) 12866 and 13563 (Regulatory Planning and 
Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 
(Civil Justice Reform), the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), and the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.). However, based on the DEA data, we are amending our required 
determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), the National Environmental Policy Act (42 U.S.C. 4321 et 
seq.), E.O. 13211 (Energy, Supply, Distribution, and Use), and the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951).

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Based on our DEA of the proposed designation, 
we provide our analysis for determining whether the proposed rule would 
result in a significant economic impact on a substantial number of 
small entities. Based on comments we receive, we may revise this 
determination as part of our final rulemaking.
    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 small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
the Gunnison sage-grouse would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities, such as livestock grazing, 
agriculture and water management, mineral and fossil fuel extraction, 
residential and related development, and renewable energy development. 
In order to determine whether it is appropriate for our agency to 
certify that this proposed rule would not have a significant economic 
impact on a substantial number of small entities, we considered each 
industry or category individually. In estimating the numbers of small 
entities potentially affected, we also 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. If we finalize 
the proposed listing for the Gunnison sage-grouse, in areas where the 
species is present, Federal agencies will already be required to 
consult with us under section 7 of the Act on activities they fund, 
permit, or implement that may affect the species. If we finalize this 
proposed critical habitat designation, consultations to avoid the 
destruction or adverse modification of critical habitat would be 
incorporated into the existing consultation process.
    In the DEA, we evaluated the potential economic effects on small 
entities resulting from implementation of conservation actions related 
to the proposed designation of critical habitat for the Gunnison sage-
grouse. This analysis of impacts relies on the estimated incremental 
impacts resulting from the proposed critical habitat designation. The 
incremental impacts of the rulemaking are most relevant for this 
analysis because they reflect costs that may be avoided or reduced 
based on decisions regarding the composition of the Final Rule. We 
anticipate that at most 63 small entities could be affected by 
livestock grazing consultations at an average cost of $7,500 each, 
representing approximately 1.8 percent of average annual revenues. One 
small entity could be affected by agriculture and water management 
consultations at a cost of $880 within a single year, representing an 
unknown percentage of annual revenues. Five to nine small entities 
could be affected by oil and gas extraction consultations per year, at 
a cost of $2,600 each in unoccupied habitat, representing approximately 
0.04 percent of annual revenues, or a cost of $880 each in occupied 
habitat, representing 0.01 percent of annual revenues. In addition, one 
small entity could be affected by a consultation for exploratory potash 
extraction in a single year at a cost of $2,600, representing 0.5 
percent of annual revenues. Up to three small entities per year could 
be affected by consultations for residential and related development, 
at a cost of $11,000 in unoccupied habitat, representing less than 0.3 
percent of annual revenues, or a cost of $880 in occupied habitat, 
representing less than

[[Page 57610]]

0.1 percent of annual revenues. One small entity could be affected by 
renewable energy development consultation, at a cost of $880 within a 
single year, representing an unknown percentage of annual revenues. 
Please refer to the DEA of the proposed critical habitat designation 
for a more detailed discussion of potential economic impacts.
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly regulated by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA to evaluate potential impacts to entities not directly 
regulated, such as small businesses. However, 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. Consequently, it is the current 
practice of the Service to assess to the extent practicable these 
potential impacts, if sufficient data are available, whether or not 
this analysis is believed by the Service to be strictly required by the 
RFA. In other words, while the effects analysis required under the RFA 
is limited to entities directly regulated by the rulemaking, the 
effects analysis under the Act, consistent with the E.O. regulatory 
analysis requirements, can take into consideration impacts to both 
directly and indirectly impacted entities, where practicable and 
reasonable.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. We have 
identified 72 to 78 small entities that may be impacted by the proposed 
critical habitat designation. 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.

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

    When the range of a species includes states within the jurisdiction 
of the U.S. Court of Appeals for the Tenth Circuit, pursuant to that 
court's ruling in Catron County Board of Commissioners v. U.S. Fish and 
Wildlife Service, 75 F .3d 1429 (10th Cir. 1996), we complete an 
analysis on proposed critical habitat designations pursuant to the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 
(NEPA). The range of Gunnison sage-grouse is entirely within the States 
of Colorado and Utah, which are within the Tenth Circuit. Accordingly, 
we have prepared a draft environmental assessment to identify and 
disclose the environmental consequences resulting from the proposed 
designation of critical habitat for the Gunnison sage-grouse.
    The draft EA presents the purpose of and need for critical habitat 
designation, the proposed action and alternatives, and an evaluation of 
the direct, indirect, and cumulative effects of the alternatives under 
the requirements of NEPA as implemented by the Council on Environmental 
Quality regulations (40 CFR 1500 et seq.) and according to the 
Department of the Interior's NEPA procedures.
    The draft EA will be used by the Service to decide whether or not 
critical habitat will be designated as proposed; if the proposed action 
requires refinement, or if another alternative is appropriate; or if 
further analyses are needed through preparation of an environmental 
impact statement. If the proposed action is selected as described (or 
is changed minimally) and no further environmental analyses are needed, 
then a finding of no significant impact (FONSI) would be the 
appropriate conclusion of this process. A FONSI would then be prepared 
for the environmental assessment. We are seeking data and comments from 
the public on the draft EA, which is available at https://www.regulations.gov at Docket No. FWS-R6-ES-2011-0111 and at https://www.fws.gov/mountain-prairie/species/birds/gunnisonsagegrouse/.

Executive Order 13211 (Energy, Supply, Distribution, and Use)

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. Gunnison sage-grouse occur in areas with oil and gas 
activity. These areas are primarily limited to the Monticello-Dove 
Creek and San Miguel populations. Well pads and their existing 
infrastructure are within proposed critical habitat units. On Federal 
lands, entities conducting oil and gas related activities as well as 
power companies would need to consult within areas designated as 
critical habitat. However, we do not anticipate additional conservation 
efforts related to oil and gas beyond those requested to avoid jeopardy 
to the species. Incremental effects of the proposed critical habitat 
designation are assumed to occur for energy projects in unoccupied 
sage-grouse habitat. Approximately 31 producing or newly permitted 
wells are located within unoccupied portions of the proposed 
designation. The number of wells within the proposed designation 
represents less than 1 percent of wells in the State of Colorado. We do 
not anticipate that the designation of critical habitat would result in 
significant impacts to the energy industry on a national scale. 
Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

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.
    Although no Tribal lands occur within the proposed critical habitat 
designation, Pine Crest Ranch (approximately 12,000 acres) occurs in 
the Gunnison Basin Unit (Unit 6) of

[[Page 57611]]

proposed critical habitat. Pine Crest Ranch is owned by the Ute 
Mountain Ute Tribe under restricted fee status. The majority of the 
property is occupied by Gunnison sage-grouse, and four leks occur on 
the property. In our January 11, 2013, proposed rule to designate 
critical habitat (78 FR 2540), we considered the Pine Crest Ranch to be 
private property.
    Since February of 2013, the Service has been in communication with 
the Ute Mountain Ute Tribe. The Service attended a Tribal Council 
Meeting on March 26, 2013, to discuss the proposed critical habitat 
designation and proposed listing of Gunnison sage-grouse. The Tribe has 
expressed an interest in developing a conservation plan for Gunnison 
sage-grouse on this property and has requested exclusion of the Pine 
Crest Ranch from the critical habitat designation. We understand that 
the Tribe's legal department is in the process of developing a 
conservation plan for their property.
    To pursue options for developing a conservation plan, the Service 
has evaluated conservation funding and opportunities for Pine Crest 
Ranch through its Partners for Fish and Wildlife Program. We have also 
coordinated with the Natural Resources Conservation Service (NRCS) to 
discuss options for enrollment in conservation programs for Gunnison 
sage-grouse. Depending on the outcome of that discussion, an ongoing 
section 7 conference with the NRCS for conservation programs and 
practices in Gunnison sage-grouse range could include Pine Crest Ranch.
    We will conduct government-to-government consultation with the Ute 
Mountain Ute Tribe throughout the development of the final designation 
of critical habitat. We will consider the Pine Crest Ranch for 
exclusion from final critical habitat designation consistent with the 
requirements of section 4(b)(2) of the Act.

Authors

    The primary authors of this notice are the staff members of the 
Regional Office and Western Colorado Field Office, Mountain-Prairie 
Region, U.S. Fish and Wildlife Service.

Authority

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

    Dated: August 12, 2013.
 Rachel Jacobsen,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-22706 Filed 9-18-13; 8:45 am]
BILLING CODE 4310-55-P