[Federal Register Volume 88, Number 81 (Thursday, April 27, 2023)]
[Proposed Rules]
[Pages 25613-25616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08848]
[[Page 25613]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2023-0052; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BH21
Endangered and Threatened Wildlife and Plants; Threatened Status
for the Bi-State Distinct Population Segment of Greater Sage-Grouse
With Section 4(d) Rule and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of the comment periods.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce
that we are reopening the comment periods on our October 28, 2013,
proposed rules to list the Bi-State distinct population segment (DPS)
of greater sage-grouse (Centrocercus urophasianus) (hereafter Bi-State
DPS) as threatened under the Endangered Species Act (Act) with a
section 4(d) rule and to designate critical habitat for the Bi-State
DPS. The District Court for the Northern District of California vacated
our March 31, 2020, withdrawal of the October 28, 2013, proposed
listing rule, and that action serves to reinstate the proposed listing
rule. We will initiate a new status review to determine whether the Bi-
State DPS meets the definition of an endangered or threatened species
under the Act. We request new information to inform this status review.
Comments previously submitted need not be resubmitted, as they will be
fully considered in preparing the final determination.
DATES: The comment periods are reopened on the proposed rules that
published October 28, 2013 (at 78 FR 64358 and 78 FR 64328). So that we
can fully consider your comments in our final determination, submit
your comments on or before June 26, 2023.
ADDRESSES:
Document availability: Documents associated with the proposed rule
to list the Bi-State DPS and a related proposed rule to designate
critical habitat for the DPS are available on the internet at https://www.regulations.gov under these dockets: FWS-R8-ES-2013-0072, FWS-R8-
ES-2013-0042, FWS-R8-ES-2018-0106, and FWS-R8-ES-2018-0107, as
described below in SUPPLEMENTARY INFORMATION under Information
Requested.
Written comments: The docket for this reopened comment period is
FWS-R8-ES-2023-0052. You may submit written 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-R8-ES-2023-0052.
Then, click on the Search button. On the resulting page, in the Search
panel on the left side of the screen, under the Document Type heading,
click on the Proposed Rules link to locate this document. You may
submit a comment by clicking on ``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R8-ES-2023-0052, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
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 Public Comments, below, for more information).
FOR FURTHER INFORMATION CONTACT: Justin Barrett, Deputy Field
Supervisor, U.S. Fish and Wildlife Service, Reno Fish and Wildlife
Office, 1340 Financial Boulevard, Suite 234, Reno, NV 89502; telephone
775-861-6300; or facsimile 775-861-6301. Individuals in the United
States who are deaf, deafblind, hard of hearing, or have a speech
disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Background
On October 28, 2013, we published a proposed rule to list the Bi-
State DPS in California and Nevada as a threatened species under the
Endangered Species Act of 1973, as amended (``Act''; 16 U.S.C. 1531 et
seq.), with a rule under section 4(d) of the Act (78 FR 64358). We
concurrently published a proposed rule to designate critical habitat
for the Bi-State DPS (78 FR 64328). On April 23, 2015, we published a
withdrawal of the proposed rule to list the Bi-State DPS as a
threatened species, including withdrawal of the section 4(d) and
proposed critical habitat rules (80 FR 22828). That decision was based
on our conclusion that the threats to the Bi-State DPS as identified in
the proposed listing rule were no longer as significant as believed at
the time of publication of the proposed rule and that conservation
plans were ameliorating threats to the species. Thus, we concluded that
the Bi-State DPS did not meet the definition of a threatened or
endangered species throughout all or a significant portion of its
range.
On March 9, 2016, Desert Survivors, the Center for Biological
Diversity, WildEarth Guardians, and Western Watershed Project filed
suit in the United States District Court for the Northern District of
California. The suit challenged the withdrawal of the proposal to list
the Bi-State DPS. On May 5, 2018, the court issued a decision. As the
result of the court order, the April 23, 2015 (80 FR 22828), withdrawal
was vacated and remanded to the Service for further consideration
consistent with the order, and on April 12, 2019, we reopened the
comment periods on the 2013 proposed listing and critical habitat rules
(84 FR 14909).
After review of the public comments received and other information,
on March 31, 2020, we published another withdrawal of the proposed rule
to list the Bi-State DPS as a threatened species, including withdrawal
of the proposed section 4(d) and critical habitat rules (85 FR 18054).
That decision was again based on our conclusion that the threats to the
Bi-State DPS as identified in the 2013 proposed listing rule were no
longer as significant as believed at the time of publication of the
2013 proposed rule and that conservation plans were ameliorating
threats to the species. Thus, we concluded that the Bi-State DPS did
not meet the definition of a threatened or endangered species
throughout all or a significant portion of its range.
On September 29, 2020, Desert Survivors, the Center for Biological
Diversity, WildEarth Guardians, and Western Watershed Project filed
suit in the United States District Court for the Northern District of
California. The suit again challenged the withdrawal of the proposal to
list the Bi-State DPS. On May 16, 2022, the court issued a decision. As
the result of the court order, the March 31, 2020 (85 FR 18054),
withdrawal was vacated and remanded to the Service for further
consideration consistent with the order.
Current Situation
The court's action returns the rulemaking process to the proposed
rule stage, and the status of the Bi-State DPS has reverted to that of
a species proposed for listing for the purposes of consultation under
section 7 of the Act. The court's action also reinstates the
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proposed section 4(d) rule and the proposed critical habitat rule for
the Bi-State DPS (78 FR 64358 and 64328; October 28, 2013). Therefore,
this document notifies the public that we are reopening the comment
periods on the 2013 proposed rules to list the Bi-State DPS as
threatened with a section 4(d) rule and designate critical habitat. We
also announce that we will be initiating an entirely new species status
assessment (SSA) of the Bi-State DPS. The SSA will inform the decision
of whether the Bi-State DPS meets the definition of an endangered or
threatened species under the Act, or whether the species is not
warranted for listing. We are targeting making a new listing
determination through publication in the Federal Register by May 2024,
which could include withdrawal, re-proposal, or a final listing status
and critical habitat determination. We will accept written comments and
information during this reopened comment period on our proposed rules
to list the Bi-State DPS as threatened with a section 4(d) rule and
designate critical habitat that were published in the Federal Register
on October 28, 2013 (78 FR 64358 and 64328; October 28, 2013). Any
listing determination we make must be made based on the best available
information. To inform this status review, we request new information
regarding the Bi-State DPS that has become available since the
publication of the 2013 proposed rules.
Species Information
Please refer to the March 31, 2020, withdrawal of our proposed
listing rule (85 FR 18054) and the 2020 Species Report (Service 2020,
entire; available on the internet at https://www.regulations.gov under
Docket No. FWS-R8-ES-2018-0106) for information about the Bi-State DPS
taxonomy, habitat (sagebrush ecosystem), seasonal habitat selection,
life-history characteristics, home range, life expectancy and survival
rates, historical and current range distribution, population estimates
and lek (sage-grouse breeding complex) counts, population trends, and
land ownership information. Please also refer to our March 23, 2010,
12-month petition finding (75 FR 13910) for the greater sage-grouse for
a detailed evaluation of the Bi-State DPS under our DPS policy, which
published in the Federal Register on February 7, 1996 (61 FR 4722). For
a detailed summary of previous open comment periods, please see our
2015 and 2020 withdrawals of the proposed listing rules (80 FR 22828,
April 23, 2015; 85 FR 18054, March 31, 2020).
Information Requested
We will accept written comments and information during this
reopened comment period on our proposed rules to list the Bi-State DPS
as threatened with a section 4(d) rule and designate critical habitat
that were published in the Federal Register on October 28, 2013 (78 FR
64358 and 78 FR 64328). We will consider information and
recommendations from all interested parties. We are particularly
interested in comments concerning:
(1) The Bi-State DPS's biology, range, and population trends,
including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional leks or populations of this
species;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the Bi-State DPS,
its habitat, or both.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may be affecting the continued existence of the
species, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors.
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species.
(c) Existing regulations or conservation actions that may be
addressing threats to this species.
(3) Additional information concerning the historical and current
status of the Bi-State DPS.
(4) Information on regulations that may be necessary and advisable
to provide for the conservation of the Bi-State DPS and that we can
consider in developing a section 4(d) rule for the species. In
particular, information concerning the extent to which we should
include any of the section 9 prohibitions in the 4(d) rule or whether
we should consider any additional exceptions from the prohibitions in
the 4(d) rule.
(5) Whether we should add a provision to the proposed 4(d) rule
that covers incidental take of the Bi-State DPS in accordance with
agricultural or conservation activities consistent with the Act.
(6) Information on effectiveness of ongoing conservation measures
and management actions.
(7) Information on current habitat conditions including but not
limited to quality of upland and meadow or riparian sites, presence and
abundance of annual invasive grasses and weeds or other increasing
plants (e.g., conifer trees), and recovery of previously burned sites.
This information may include larger landscape-scale assessments or
smaller site-specific investigations.
(8) Specific information on:
(a) The amount and distribution of habitat for the Bi-State DPS.
(b) Any additional areas occurring within the range of the species
in western Nevada and eastern California that should be included in the
critical habitat designation because they (i) are occupied at the time
of listing and contain the physical or biological features that are
essential to the conservation of the species and that may require
special management considerations, or (ii) are unoccupied at the time
of listing and are essential for the conservation of the species.
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change.
(d) To evaluate the potential to include areas not occupied at the
time of listing, we particularly seek comments regarding whether
occupied areas are adequate for the conservation of the species.
Additionally, please provide specific information regarding whether or
not unoccupied areas would, with reasonable certainty, contribute to
the conservation of the species and contain at least one physical or
biological feature essential to the conservation of the species. We
also seek comments or information regarding whether areas not occupied
at the time of listing qualify as critical habitat for the species.
(9) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(10) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(11) Information on the extent to which the description of probable
economic impacts in the draft economic analysis (available on the
internet at https://www.regulations.gov under Docket No. FWS-R8-ES-
2013-0042) is a reasonable estimate of the likely economic impacts and
any additional information regarding probable
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economic impacts that we should consider.
(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 whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide information supporting a benefit of
exclusion.
(13) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Prior information regarding this rulemaking action may be found in
these dockets on https://www.regulations.gov:
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Rulemaking
Docket No. actions reflected Information available
in the docket in the docket
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FWS-R8-ES-2013-0072........... Proposed A
listing rule (78 Hierarchical
FR 64358, Integrated
October 28, Population Model for
2013). Greater Sage-Grouse
First in the Bi-State
withdrawal of Distinct Population
the 2013 Segment, California
proposed listing and Nevada, 2014.
and critical Species
habitat rules Status Assessment
(80 FR 22828, Maps by Population
April 23, 2015). Management Units,
January 2013.
Species
Status Assessment Bi-
State Distinct
Population Segment
of Greater Sage-
Grouse, 2013.
Bi-State
Action Plan, March
2012.
Greater Sage-
Grouse Conservation
Objectives Team
Report, February
2013.
Commitment
letters from
Federal, State, and
local partners.
Policy for
Evaluation of
Conservation Efforts
When Making Listing
Decisions (PECE)
Evaluation for the
Bi-State Distinct
Population Segment
of Greater Sage-
Grouse 2012 Bi-State
Action Plan.
Conference
Report for the
Natural Resources
Conservation Service
Sage-grouse
Initiative, 2010.
FWS-R8-ES-2013-0042........... Proposed Draft
critical habitat Economic Analysis
rule (78 FR for the Bi-State DPS
64328, October of Greater Sage-
28, 2013). Grouse, 2014.
First References
withdrawal of cited for proposed
the 2013 critical habitat
proposed listing designation.
and critical
habitat rules
(80 FR 22828,
April 23, 2015).
FWS-R8-ES-2018-0106........... Species
Reopening of the Report for the Bi-
comment period State Distinct
on the 2013 Population Segment
proposed listing of Greater Sage-
rule (84 FR Grouse, January
14909, April 12, 2020.
2019). References
Second cited in proposed
withdrawal of rule withdrawal.
the 2013
proposed listing
and critical
habitat rules
(85 FR 18054,
March 31, 2020).
FWS-R8-ES-2018-0107........... References
Reopening of the cited in proposed
comment period rule withdrawal.
on the 2013
proposed
critical habitat
rule (84 FR
14909, April 12,
2019).
Second
withdrawal of
the 2013
proposed listing
and critical
habitat rules
(85 FR 18054,
March 31, 2020).
FWS-R8-ES-2023-0052 (This is
the docket number for this Reopening of the
document, and comments should comment periods
be submitted to this docket.). on the 2013
proposed listing
rule (78 FR
64358, October
28, 2013) and
proposed
critical habitat
rule (78 FR
64328, October
28, 2013).
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Public Comments
Please do not resubmit comments or information already provided on
the proposed rules (78 FR 64358 and 64328; October 28, 2013) during the
initial comment periods in 2013 or any of the subsequent comment
periods (in 2014, as the result of several extensions and reopenings of
the comment periods, and in 2019). Any such comments are incorporated
as part of the public record of this rulemaking proceeding, and we will
fully consider them in the preparation of our determination. Please
note that submissions merely stating support for, or opposition to, the
action under consideration without providing supporting information,
although noted, do not provide substantial information necessary to
support a determination. Section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made solely on the basis of the best
scientific and commercial data available.
You may submit your comments and materials concerning the proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
Comments and materials we receive will be available for public
inspection on https://www.regulations.gov at Docket No. FWS-R8-ES-2023-
0052. If you submit information via https://www.regulations.gov, your
entire comment--including any personal identifying information--will be
posted on the website. 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.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the species is
endangered instead of threatened, or we may conclude that the species
does not warrant listing as either an endangered species or a
threatened species. For critical habitat, our final designation may not
include all areas proposed, may include some additional areas that meet
the definition of critical habitat, or may exclude some areas if we
find the benefits of exclusion outweigh the benefits of inclusion and
exclusion will not result in the extinction of the species. In
addition, we may change the parameters of the prohibitions or the
exceptions to those prohibitions in the proposed 4(d) rule if we
conclude it is appropriate in light of comments and new information
received. For example, we may expand the prohibitions to include
prohibiting additional activities if we conclude that those additional
activities are not compatible with conservation of the species.
Conversely,
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we may establish additional exceptions to the prohibitions in the final
rule if we conclude that the activities would facilitate or are
compatible with the conservation and recovery of the species.
Authors
The primary author of this document is the Reno Fish and Wildlife
Office in Reno, Nevada, in coordination with the Pacific Southwest
Regional Office in Sacramento, California.
Authority
The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et
seq.) is the authority for this action.
Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-08848 Filed 4-26-23; 8:45 am]
BILLING CODE 4333-15-P