Endangered and Threatened Wildlife and Plants; Endangered Status and Designation of Critical Habitat for the Jemez Mountains Salamander, 9876-9882 [2013-03111]

Download as PDF pmangrum on DSK3VPTVN1PROD with PROPOSALS-1 9876 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Proposed Rules (3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and (5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices. Executive Order 13563 also requires an agency ‘‘to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.’’ The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include ‘‘identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.’’ We are issuing these proposed priorities only upon a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that these proposed priorities are consistent with the principles in Executive Order 13563. We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions. In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department’s programs and activities. The benefits of the Disability and Rehabilitation Research Projects and Centers Program have been well established over the years. Projects similar to the RRTCs have been completed successfully, and the proposed priorities will generate new knowledge through research. The new RRTCs will generate, disseminate, and promote the use of new information that would improve outcomes for individuals with disabilities in the areas VerDate Mar<15>2010 15:06 Feb 11, 2013 Jkt 229001 of community living and participation, employment, and health and function. Intergovernmental Review: This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79. Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the Grants and Contracts Services Team, U.S. Department of Education, 400 Maryland Avenue SW., room 5075, PCP, Washington, DC 20202–2550. Telephone: (202) 245– 7363. If you use a TDD or TTY, call the FRS, toll free, at 1–800–877–8339. Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department. Dated: February 7, 2013. Michael Yudin, Acting Assistant Secretary for Special Education and Rehabilitative Services. [FR Doc. 2013–03203 Filed 2–11–13; 8:45 am] BILLING CODE 4000–01–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R2–ES–2012–0063; 4500030114] RIN 1018–AY24 Endangered and Threatened Wildlife and Plants; Endangered Status and Designation of Critical Habitat for the Jemez Mountains Salamander Fish and Wildlife Service, Interior. ACTION: Proposed rule; reopening of comment period. AGENCY: PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the September 12, 2012, proposed endangered status for the Jemez Mountains salamander and proposed designation of critical habitat under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of a draft economic analysis and draft environmental assessment of the proposed designation of critical habitat for the Jemez Mountains salamander, and an amended required determinations section of the proposal. We are proposing minor amendments to the proposed critical habitat units based on updated mapping data. In addition, we are proposing minor changes to clarify the primary constituent elements. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed rule, the associated draft economic analysis and draft environmental assessment, the amended required determinations section, and the proposed changes to the primary constituent elements and critical habitat units described in this document. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rule. DATES: We will consider comments received on or before March 14, 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. ADDRESSES: 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–R2–ES–2012–0063, and submit comments on the critical habitat proposal and associated draft economic analysis to Docket No. FWS–R2–ES– 2013–0005. See SUPPLEMENTARY INFORMATION for an explanation of the two dockets. (2) By hard copy: Submit comments on the listing proposal by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R2–ES–2012– 0063; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042–PDM; Arlington, VA 22203. Submit comment on the critical habitat proposal and draft economic analysis by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R2– ES–2013–0005; Division of Policy and SUMMARY: E:\FR\FM\12FEP1.SGM 12FEP1 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Proposed Rules 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). FOR FURTHER INFORMATION CONTACT: Wally Murphy, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE., Albuquerque, NM 87113; by telephone 505–346–2525; or by facsimile 505–346–2542. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: pmangrum on DSK3VPTVN1PROD with PROPOSALS-1 Public Comments We will accept written comments and information during this reopened comment period on our proposed listing and designation of critical habitat for the Jemez Mountains salamander (Plethodon neomexicanus) that was published in the Federal Register on September 12, 2012 (77 FR 56482), our draft economic analysis and draft environmental assessment of the proposed designation, the amended required determinations provided in this document, and the proposed changes to the primary constituent elements and critical habitat units described in this document. We will consider information and recommendations from all interested parties. We are also notifying the public that we will publish two separate rules for the final listing determination and the final critical habitat determination for the Jemez Mountains salamander. The final listing rule will publish under the existing docket number, FWS–R2–ES– 2012–0063, and the final critical habitat designation will publish under docket number FWS–R2–ES–2013–0005. We will publish two separate rules because we are basically engaging in two separate rulemaking actions. The Secretary of the Interior has delegated authority to the Director of the Service to make determinations regarding listing species under the Act, which the Act requires to be based entirely on science. However, in making critical habitat designations, the Act requires that we consider economic implications as well as science, and, therefore, these rules are subject to a higher level of governmental review and signature. In VerDate Mar<15>2010 15:06 Feb 11, 2013 Jkt 229001 addition, as the result of a 2011 settlement agreement for a multidistrict lawsuit regarding the listing process, we must publish numerous rulemaking documents on a prescribed schedule until 2017, and dividing this rulemaking action into two separate rules will help us adhere to this schedule. We request that you provide comments specifically on our listing determination under the existing docket number FWS–R2–ES–2012–0063. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning: (1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and regulations that may be addressing those threats. (2) 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. (3) Any information on the biological or ecological requirements of the species, and ongoing conservation measures for the species and its habitat. (4) Current or planned activities in the areas occupied by the species and possible impacts of these activities on this species. We request that you provide comments specifically on the critical habitat determination under docket number FWS–R2–ES–2013–0005. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning: (5) The reasons why we should or should not designate habitat as ‘‘critical habitat’’ under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent. (6) Specific information on: (a) The amount and distribution of Jemez Mountains salamander habitat; (b) What areas occupied by the species at the time of listing that contain features essential for the conservation of the species we should include in the designation and why; (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; and (d) What areas not occupied at the time of listing are essential to the conservation of the species and why. PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 9877 (7) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat. (8) Any foreseeable economic, national security, or other relevant impacts that may result from designating any area 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. (9) Information on the extent to which the description of economic impacts in the draft economic analysis is complete and accurate. (10) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the draft economic analysis and draft environmental assessment, 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. (11) 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. If you submitted comments or information on the proposed rule (77 FR 56482; September 12, 2012) during the initial comment period from September 12, 2012, to November 13, 2012, 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 rules. You may submit your comments and materials concerning the September 12, 2012, proposed rule, the draft economic analysis, the draft environmental assessment, the amended required determinations provided in this document, or the proposed changes to the primary constituent elements and critical habitat units described in this document 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 E:\FR\FM\12FEP1.SGM 12FEP1 9878 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Proposed Rules 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, will be available for public inspection on https:// www.regulations.gov at Docket No. FWS–R2–ES–2012–0063 (for the proposed listing rule) and Docket No. FWS–R2–ES–2013–0005 (for the proposed critical habitat designation and draft economic analysis), or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule on the Internet at https://www.regulations.gov at Docket No. FWS–R2–ES–2012–0063 and the draft economic analysis at Docket No. FWS–R2–ES–2013–0005, or by mail from the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT section). pmangrum on DSK3VPTVN1PROD with PROPOSALS-1 Background It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the Jemez Mountains salamander in this document. For more information on previous Federal actions concerning the Jemez Mountains salamander, or for more information on the Jemez Mountains salamander or its habitat, refer to the proposed endangered status for the Jemez Mountains salamander and proposed designation of critical habitat published in the Federal Register on September 12, 2012 (77 FR 56482), which is available online at https://www.regulations.gov (at Docket Number FWS–R2–ES–2012–0063) or from the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). On September 12, 2012 (77 FR 56482), we published a proposed rule to list and designate critical habitat for the Jemez Mountains salamander. We proposed to designate approximately 90,789 acres (ac) (36,741 hectares (ha)) in two units located in Los Alamos, Rio Arriba, and Sandoval Counties, New Mexico, as critical habitat. That proposal had a 60day comment period ending November 13, 2012. We will submit for publication in the Federal Register a final listing and a critical habitat designation for the Jemez Mountains salamander on or before September 12, 2013. VerDate Mar<15>2010 15:06 Feb 11, 2013 Jkt 229001 Critical Habitat Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, 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. (2) Elevations from 6,988 to 11,254 feet (2,130 to 3,430 meters). (3) Ground surface in forest areas with: (a) Moderate to high volumes of large fallen trees and other woody debris, especially coniferous logs at least 10 inches (25 centimeters) in diameter, particularly Douglas fir, which are in contact with the soil in varying stages of decay from freshly fallen to nearly fully decomposed; or (b) Structural features, such as rocks, bark, and moss mats that provide the species with food and cover. (4) Underground habitat in forest or meadow areas containing interstitial spaces provided by: (a) Igneous rock with fractures or loose rocky soils; (b) Rotted tree root channels; or (c) Burrows of rodents or large invertebrates. Changes from the Previously Proposed Critical Habitat Designation Amended Proposed Critical Habitat Units Amended Primary Constituent Elements (PCEs) for the Jemez Mountains Salamander We are proposing to amend the PCEs that we proposed in our September 12, 2012, proposed rule (77 FR 56482) to provide additional clarification to PCEs 1 and 3a. The overall intent of proposed PCEs has not changed. Based on the needs and our current knowledge of the life history, biology, and ecology of the species, and the habitat requirements for sustaining the essential life-history functions of the species, we have determined that, in total, the PCEs essential to the conservation of the Jemez Mountains salamander are: (1) Moderate to high tree canopy cover, typically 50 to 100 percent canopy closure, that provides shade and maintains moisture and high relative humidity at the ground surface, and: (a) Consists of the following tree species alone or in any combination: Douglas fir (Pseudotsuga menziesii); blue spruce (Picea pungens); Engelman spruce (Picea engelmannii); white fir (Abies concolor); limber pine (Pinus flexilis); ponderosa pine (Pinus ponderosa); and aspen (Populus tremuloides); and (b) Has an understory that predominantly comprises: Rocky Mountain maple (Acer glabrum); New Mexico locust (Robinia neomexicana); oceanspray (Holodiscus sp.); or shrubby oaks (Quercus spp.). In this publication, we are proposing to revise the size of the two previously proposed critical habitat units, based on recently finalized map data that were still in draft form during our initial analysis. The updated map data resulted in minor changes in size and ownership in both proposed units. There is a slight reduction in the overall area proposed, with some reduction of private lands and addition of a small parcel of State lands. In the September 12, 2012 (77 FR 56482), proposed rule, we proposed a total of approximately 90,789 ac (36,741 ha) in two units. Based on new map data, we are updating the approximate area and land ownership of both proposed critical habitat units; the updates are shown in Table 1. The total Federal proposed critical habitat consists of 56,897 ac (23,025 ha) of U.S. Forest Service lands, 23,745 ac (9,609 ha) of Valles Caldera National Preserve lands, and 7,198 ac (2913 ha) of National Park Service lands. Also, we identified a 73-ac (30-ha) parcel owned by New Mexico Department of Game and Fish in the Western Jemez Mountains Unit. Based on these revisions, we are now proposing a total of approximately 90,716 ac (36,711 ha) in two critical habitat units, which is 73 ac (30 ha) less than what we previously proposed. Such a small change in the acreage does not affect the accuracy of the maps published in the September 12, 2012 (77 FR 56482), proposed rule. PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 E:\FR\FM\12FEP1.SGM 12FEP1 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Proposed Rules 9879 TABLE 1—PROPOSED CRITICAL HABITAT UNITS FOR THE JEMEZ MOUNTAINS SALAMANDER Size of unit in acres (Hectares) Critical habitat unit Land ownership by type 1. Western Jemez Mountains Unit ....................................... Federal ................................................................................. Private .................................................................................. State ..................................................................................... 41,466 (16,781) 906 (367) 73 (30) 2. Southeastern Jemez Mountains Unit ............................... Total Unit 1 ........................................................................... Federal ................................................................................. Private .................................................................................. 42,445 (17,177) 46,374 (18,767) 1,897 (768) Total ............................................................................... Total Unit 2 ........................................................................... Federal ................................................................................. Private .................................................................................. State ..................................................................................... 48,271 (19,535) 87,840 (35,548) 2,803 (1,134) 73 (30) Total ..................................................................................... 90,716 (36,711) pmangrum on DSK3VPTVN1PROD with PROPOSALS-1 Note: Area sizes may not sum due to rounding. Consideration of Impacts Under Section 4(b)(2) of the Act Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species. When considering the benefits of inclusion for an area, we consider 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. 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. 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 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 VerDate Mar<15>2010 15:06 Feb 11, 2013 Jkt 229001 and draft environmental assessment concerning the proposed critical habitat designation, which are available for review and comment (see ADDRESSES section). Draft Economic Analysis The purpose of the draft economic analysis is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the Jemez Mountains salamander. The draft economic analysis describes the economic impacts of all potential conservation efforts for the Jemez Mountains salamander; 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 for the species (e.g., under the Federal listing and other 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; these are the costs we may consider in the final designation of critical habitat when evaluating the benefits of excluding particular areas under section 4(b)(2) of the Act. The analysis forecasts both PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 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 draft economic analysis. The draft economic analysis provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for the Jemez Mountains salamander 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 draft economic analysis quantifies economic impacts of Jemez Mountains salamander conservation efforts associated with the following categories of activity: (1) Severe wildland fire, (2) fire management, (3) other Federal land management, (4) private development, (5) transportation, and (6) livestock grazing. Economic impacts are estimated for severe wildland fire, fire management, other Federal land management, livestock grazing, and transportation. No impacts are forecast for private development, because no projects with a Federal nexus were identified within the study area. Total present value incremental impacts are approximately $260,000 over 20 years following the designation, assuming a 7 percent discount rate ($330,000 assuming a 3 percent discount rate). All incremental costs are administrative in nature and result from E:\FR\FM\12FEP1.SGM 12FEP1 9880 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Proposed Rules the consideration of adverse modification in section 7 consultations. Both proposed units are expected to experience similar levels of incremental impact. Differences in forecast impacts across the two units are predominately a result of the distribution of land ownership, rather than differences in activities across units. As we stated earlier, we are soliciting data and comments from the public on the draft economic analysis, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species. pmangrum on DSK3VPTVN1PROD with PROPOSALS-1 Draft Environmental Assessment The purpose of the draft environmental assessment, prepared under the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.), is to identify and disclose the environmental consequences resulting from the proposed action of designating critical habitat for the Jemez Mountains salamander. In the draft environmental assessment, two alternatives are evaluated: Alternative A, the proposed rule, and the no action alternative. Under Alternative A, critical habitat units on private and other lands could potentially be excluded in the final rule based on economic impact, national security, or other relevant impacts. We did not propose exclusion of private or any other lands. Alternative A is the current proposal, and the no action alternative is equivalent to no designation of critical habitat for the Jemez Mountains salamander. The no action alternative is required by NEPA for comparison to the other alternatives analyzed in the draft environmental assessment. Our preliminary determination is that designation of critical habitat for the Jemez Mountains salamander will not have direct impacts on the environment. However, we will further evaluate this issue as we complete our final environmental assessment. As we stated earlier, we are soliciting data and comments from the public on the draft environmental assessment, as well as all aspects of the proposed rule. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the comment period on the VerDate Mar<15>2010 15:06 Feb 11, 2013 Jkt 229001 environmental consequences resulting from our designation of critical habitat. Required Determinations—Amended In our September 12, 2012, proposed rule (77 FR 56482), 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 draft economic analysis. We have now made use of the draft economic analysis data to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and the President’s memorandum of April 29, 1994, ‘‘Government-to-Government Relations with Native American Tribal Governments’’ (59 FR 22951). However, based on the draft economic analysis data, we are amending our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 12630 (Takings), and the National Environmental Policy Act (42 U.S.C. 4321 et seq.). 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 draft economic analysis of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 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 Jemez Mountains salamander would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as fire management, private development, transportation, and livestock grazing. 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. In areas where the Jemez Mountains salamander is present, Federal agencies already are 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 E:\FR\FM\12FEP1.SGM 12FEP1 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Proposed Rules pmangrum on DSK3VPTVN1PROD with PROPOSALS-1 incorporated into the existing consultation process. In the draft economic analysis, 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 Jemez Mountains salamander. The designation of critical habitat for the salamander is unlikely to directly affect any small entities. Ninety-seven percent of land in the designation is Federally owned. Anticipated incremental impacts in proposed critical habitat are primarily related to consultations on fire management and other Federal land management activities (comprising approximately 99 percent of the annual anticipated incremental costs of the designation). The remaining forecast impacts are anticipated to be conducted for road and highway maintenance projects. Little to no impact to third parties is expected associated with these activities. For this reason, there would be little to no impacts to small entities as a result of critical habitat designation for the salamander. Please refer to the draft economic analysis of the proposed critical habitat designation for a more detailed discussion of potential economic impacts. 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. 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. Takings—Executive Order 12630 In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Jemez Mountains salamander in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to allow actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this proposed designation of critical habitat does not VerDate Mar<15>2010 15:06 Feb 11, 2013 Jkt 229001 pose significant takings implications for lands within or affected by the designation. However, we will further evaluate this issue as we complete our final economic analysis, and review and revise this assessment as appropriate. National Environmental Policy Act (NEPA) It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).] However, when the range of the species includes States within the Tenth Circuit, such as that of the Jemez Mountains salamander, under the Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will undertake a NEPA analysis for critical habitat designation. In accordance with the Tenth Circuit, we have completed a draft environmental assessment to identify and disclose the environmental consequences resulting from the proposed designation of critical habitat for the Jemez Mountains salamander. Our preliminary determination is that the designation of critical habitat for the Jemez Mountains salamander would not have direct impacts on the environment. However, we will further evaluate this issue as we complete our final environmental assessment. Authors The primary authors of this notice are the staff members of the New Mexico Ecological Services Field Office, Southwest Region, U.S. Fish and Wildlife Service. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to further amend the proposed amendments to part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as published on September 12, 2012, at 77 FR 56482, as set forth below: PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 9881 PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. 2. In § 17.95(d), in the proposed entry for ‘‘Jemez Mountains Salamander (Plethodon neomexicanus)’’, as published at 77 FR 56482, revise proposed paragraph (d)(2) to read as follows: ■ § 17.95 Critical habitat—fish and wildlife. * * * * * (d) Amphibians. * * * * * Jemez Mountains Salamander (Plethodon neomexicanus) * * * * * (2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Jemez Mountains salamander consist of four components: (i) Moderate to high tree canopy cover, typically 50 to 100 percent canopy closure, that provides shade and maintains moisture and high relative humidity at the ground surface, and: (A) Consists of the following tree species alone or in any combination: Douglas fir (Pseudotsuga menziesii); blue spruce (Picea pungens); Engelman spruce (Picea engelmannii); white fir (Abies concolor); limber pine (Pinus flexilis); ponderosa pine (Pinus ponderosa); and aspen (Populus tremuloides); and (B) Has an understory that predominantly comprises: Rocky Mountain maple (Acer glabrum); New Mexico locust (Robinia neomexicana); oceanspray (Holodiscus sp.); or shrubby oaks (Quercus spp.). (ii) Elevations from 6,988 to 11,254 feet (2,130 to 3,430 meters). (iii) Ground surface in forest areas with: (A) Moderate to high volumes of large fallen trees and other woody debris, especially coniferous logs at least 10 inches (25 centimeters) in diameter, particularly Douglas fir, which are in contact with the soil in varying stages of decay from freshly fallen to nearly fully decomposed; or (B) Structural features, such as rocks, bark, and moss mats that provide the species with food and cover. (iv) Underground habitat in forest or meadow areas containing interstitial spaces provided by: (A) Igneous rock with fractures or loose rocky soils; (B) Rotted tree root channels; or E:\FR\FM\12FEP1.SGM 12FEP1 9882 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Proposed Rules (C) Burrows of rodents or large invertebrates. * * * * * Dated: February 1, 2013. Michael J. Bean Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2013–03111 Filed 2–11–13; 8:45 am] pmangrum on DSK3VPTVN1PROD with PROPOSALS-1 BILLING CODE 4310–55–P VerDate Mar<15>2010 15:06 Feb 11, 2013 Jkt 229001 PO 00000 Frm 00032 Fmt 4702 Sfmt 9990 E:\FR\FM\12FEP1.SGM 12FEP1

Agencies

[Federal Register Volume 78, Number 29 (Tuesday, February 12, 2013)]
[Proposed Rules]
[Pages 9876-9882]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03111]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2012-0063; 4500030114]
RIN 1018-AY24

Endangered and Threatened Wildlife and Plants; Endangered Status
and Designation of Critical Habitat for the Jemez Mountains Salamander

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the September 12, 2012,
proposed endangered status for the Jemez Mountains salamander and
proposed designation of critical habitat under the Endangered Species
Act of 1973, as amended (Act). We also announce the availability of a
draft economic analysis and draft environmental assessment of the
proposed designation of critical habitat for the Jemez Mountains
salamander, and an amended required determinations section of the
proposal. We are proposing minor amendments to the proposed critical
habitat units based on updated mapping data. In addition, we are
proposing minor changes to clarify the primary constituent elements. We
are reopening the comment period to allow all interested parties an
opportunity to comment simultaneously on the proposed rule, the
associated draft economic analysis and draft environmental assessment,
the amended required determinations section, and the proposed changes
to the primary constituent elements and critical habitat units
described in this document. Comments previously submitted need not be
resubmitted, as they will be fully considered in preparation of the
final rule.

DATES: We will consider comments received on or before March 14, 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.

ADDRESSES: 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-R2-ES-2012-0063, and submit comments on the critical habitat
proposal and associated draft economic analysis to Docket No. FWS-R2-
ES-2013-0005. See SUPPLEMENTARY INFORMATION for an explanation of the
two dockets.
(2) By hard copy: Submit comments on the listing proposal by U.S.
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-
2012-0063; Division of Policy and Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA
22203. Submit comment on the critical habitat proposal and draft
economic analysis by U.S. mail or hand-delivery to: Public Comments
Processing, Attn: FWS-R2-ES-2013-0005; Division of Policy and

[[Page 9877]]

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).

FOR FURTHER INFORMATION CONTACT: Wally Murphy, Field Supervisor, U.S.
Fish and Wildlife Service, New Mexico Ecological Services Field Office,
2105 Osuna NE., Albuquerque, NM 87113; by telephone 505-346-2525; or by
facsimile 505-346-2542. 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
reopened comment period on our proposed listing and designation of
critical habitat for the Jemez Mountains salamander (Plethodon
neomexicanus) that was published in the Federal Register on September
12, 2012 (77 FR 56482), our draft economic analysis and draft
environmental assessment of the proposed designation, the amended
required determinations provided in this document, and the proposed
changes to the primary constituent elements and critical habitat units
described in this document. We will consider information and
recommendations from all interested parties.
We are also notifying the public that we will publish two separate
rules for the final listing determination and the final critical
habitat determination for the Jemez Mountains salamander. The final
listing rule will publish under the existing docket number, FWS-R2-ES-
2012-0063, and the final critical habitat designation will publish
under docket number FWS-R2-ES-2013-0005.
We will publish two separate rules because we are basically
engaging in two separate rulemaking actions. The Secretary of the
Interior has delegated authority to the Director of the Service to make
determinations regarding listing species under the Act, which the Act
requires to be based entirely on science. However, in making critical
habitat designations, the Act requires that we consider economic
implications as well as science, and, therefore, these rules are
subject to a higher level of governmental review and signature. In
addition, as the result of a 2011 settlement agreement for a
multidistrict lawsuit regarding the listing process, we must publish
numerous rulemaking documents on a prescribed schedule until 2017, and
dividing this rulemaking action into two separate rules will help us
adhere to this schedule.
We request that you provide comments specifically on our listing
determination under the existing docket number FWS-R2-ES-2012-0063. We
will consider information and recommendations from all interested
parties. We are particularly interested in comments concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and regulations that may
be addressing those threats.
(2) 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.
(3) Any information on the biological or ecological requirements of
the species, and ongoing conservation measures for the species and its
habitat.
(4) Current or planned activities in the areas occupied by the
species and possible impacts of these activities on this species.
We request that you provide comments specifically on the critical
habitat determination under docket number FWS-R2-ES-2013-0005. We will
consider information and recommendations from all interested parties.
We are particularly interested in comments concerning:
(5) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat is not
prudent.
(6) Specific information on:
(a) The amount and distribution of Jemez Mountains salamander
habitat;
(b) What areas occupied by the species at the time of listing that
contain features essential for the conservation of the species we
should include in the designation and why;
(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; and
(d) What areas not occupied at the time of listing are essential to
the conservation of the species and why.
(7) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(8) Any foreseeable economic, national security, or other relevant
impacts that may result from designating any area 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.
(9) Information on the extent to which the description of economic
impacts in the draft economic analysis is complete and accurate.
(10) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the draft economic analysis and
draft environmental assessment, 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.
(11) 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.
If you submitted comments or information on the proposed rule (77
FR 56482; September 12, 2012) during the initial comment period from
September 12, 2012, to November 13, 2012, 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
rules.
You may submit your comments and materials concerning the September
12, 2012, proposed rule, the draft economic analysis, the draft
environmental assessment, the amended required determinations provided
in this document, or the proposed changes to the primary constituent
elements and critical habitat units described in this document 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

[[Page 9878]]

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, will be available for public inspection on
https://www.regulations.gov at Docket No. FWS-R2-ES-2012-0063 (for the
proposed listing rule) and Docket No. FWS-R2-ES-2013-0005 (for the
proposed critical habitat designation and draft economic analysis), or
by appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, New Mexico Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT). You may obtain copies of the proposed
rule on the Internet at https://www.regulations.gov at Docket No. FWS-
R2-ES-2012-0063 and the draft economic analysis at Docket No. FWS-R2-
ES-2013-0005, or by mail from the New Mexico Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT section).

Background

It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for the Jemez Mountains salamander
in this document. For more information on previous Federal actions
concerning the Jemez Mountains salamander, or for more information on
the Jemez Mountains salamander or its habitat, refer to the proposed
endangered status for the Jemez Mountains salamander and proposed
designation of critical habitat published in the Federal Register on
September 12, 2012 (77 FR 56482), which is available online at https://www.regulations.gov (at Docket Number FWS-R2-ES-2012-0063) or from the
New Mexico Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
On September 12, 2012 (77 FR 56482), we published a proposed rule
to list and designate critical habitat for the Jemez Mountains
salamander. We proposed to designate approximately 90,789 acres (ac)
(36,741 hectares (ha)) in two units located in Los Alamos, Rio Arriba,
and Sandoval Counties, New Mexico, as critical habitat. That proposal
had a 60-day comment period ending November 13, 2012. We will submit
for publication in the Federal Register a final listing and a critical
habitat designation for the Jemez Mountains salamander on or before
September 12, 2013.

Critical Habitat

Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, 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.

Changes from the Previously Proposed Critical Habitat Designation

Amended Primary Constituent Elements (PCEs) for the Jemez Mountains
Salamander

We are proposing to amend the PCEs that we proposed in our
September 12, 2012, proposed rule (77 FR 56482) to provide additional
clarification to PCEs 1 and 3a. The overall intent of proposed PCEs has
not changed. Based on the needs and our current knowledge of the life
history, biology, and ecology of the species, and the habitat
requirements for sustaining the essential life-history functions of the
species, we have determined that, in total, the PCEs essential to the
conservation of the Jemez Mountains salamander are:
(1) Moderate to high tree canopy cover, typically 50 to 100 percent
canopy closure, that provides shade and maintains moisture and high
relative humidity at the ground surface, and:
(a) Consists of the following tree species alone or in any
combination:
Douglas fir (Pseudotsuga menziesii); blue spruce (Picea pungens);
Engelman spruce (Picea engelmannii); white fir (Abies concolor); limber
pine (Pinus flexilis); ponderosa pine (Pinus ponderosa); and aspen
(Populus tremuloides); and
(b) Has an understory that predominantly comprises: Rocky Mountain
maple (Acer glabrum); New Mexico locust (Robinia neomexicana);
oceanspray (Holodiscus sp.); or shrubby oaks (Quercus spp.).
(2) Elevations from 6,988 to 11,254 feet (2,130 to 3,430 meters).
(3) Ground surface in forest areas with:
(a) Moderate to high volumes of large fallen trees and other woody
debris, especially coniferous logs at least 10 inches (25 centimeters)
in diameter, particularly Douglas fir, which are in contact with the
soil in varying stages of decay from freshly fallen to nearly fully
decomposed; or
(b) Structural features, such as rocks, bark, and moss mats that
provide the species with food and cover.
(4) Underground habitat in forest or meadow areas containing
interstitial spaces provided by:
(a) Igneous rock with fractures or loose rocky soils;
(b) Rotted tree root channels; or
(c) Burrows of rodents or large invertebrates.

Amended Proposed Critical Habitat Units

In this publication, we are proposing to revise the size of the two
previously proposed critical habitat units, based on recently finalized
map data that were still in draft form during our initial analysis. The
updated map data resulted in minor changes in size and ownership in
both proposed units. There is a slight reduction in the overall area
proposed, with some reduction of private lands and addition of a small
parcel of State lands. In the September 12, 2012 (77 FR 56482),
proposed rule, we proposed a total of approximately 90,789 ac (36,741
ha) in two units. Based on new map data, we are updating the
approximate area and land ownership of both proposed critical habitat
units; the updates are shown in Table 1. The total Federal proposed
critical habitat consists of 56,897 ac (23,025 ha) of U.S. Forest
Service lands, 23,745 ac (9,609 ha) of Valles Caldera National Preserve
lands, and 7,198 ac (2913 ha) of National Park Service lands. Also, we
identified a 73-ac (30-ha) parcel owned by New Mexico Department of
Game and Fish in the Western Jemez Mountains Unit. Based on these
revisions, we are now proposing a total of approximately 90,716 ac
(36,711 ha) in two critical habitat units, which is 73 ac (30 ha) less
than what we previously proposed. Such a small change in the acreage
does not affect the accuracy of the maps published in the September 12,
2012 (77 FR 56482), proposed rule.

[[Page 9879]]

Table 1--Proposed Critical Habitat Units for the Jemez Mountains
Salamander
------------------------------------------------------------------------
Land ownership by Size of unit in
Critical habitat unit type acres (Hectares)
------------------------------------------------------------------------
1. Western Jemez Mountains Unit Federal.......... 41,466 (16,781)
Private.......... 906 (367)
State............ 73 (30)
---------------------
Total Unit 1..... 42,445 (17,177)
2. Southeastern Jemez Mountains Federal.......... 46,374 (18,767)
Unit.
Private.......... 1,897 (768)
---------------------
Total Unit 2..... 48,271 (19,535)
Total...................... Federal.......... 87,840 (35,548)
Private.......... 2,803 (1,134)
State............ 73 (30)
---------------------
Total............ 90,716 (36,711)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

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

Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat. We may exclude an area from critical habitat
if we determine that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat, provided such
exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider
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.
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. 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 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 and draft environmental assessment concerning
the proposed critical habitat designation, which are available for
review and comment (see ADDRESSES section).

Draft Economic Analysis

The purpose of the draft economic analysis is to identify and
analyze the potential economic impacts associated with the proposed
critical habitat designation for the Jemez Mountains salamander. The
draft economic analysis describes the economic impacts of all potential
conservation efforts for the Jemez Mountains salamander; 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 for the species (e.g., under
the Federal listing and other 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;
these are the costs we may consider in the final designation of
critical habitat when evaluating the benefits of excluding particular
areas under section 4(b)(2) of the Act. The analysis 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 draft economic analysis.
The draft economic analysis provides estimated costs of the
foreseeable potential economic impacts of the proposed critical habitat
designation for the Jemez Mountains salamander 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 draft economic analysis quantifies economic impacts of Jemez
Mountains salamander conservation efforts associated with the following
categories of activity: (1) Severe wildland fire, (2) fire management,
(3) other Federal land management, (4) private development, (5)
transportation, and (6) livestock grazing. Economic impacts are
estimated for severe wildland fire, fire management, other Federal land
management, livestock grazing, and transportation. No impacts are
forecast for private development, because no projects with a Federal
nexus were identified within the study area.
Total present value incremental impacts are approximately $260,000
over 20 years following the designation, assuming a 7 percent discount
rate ($330,000 assuming a 3 percent discount rate). All incremental
costs are administrative in nature and result from

[[Page 9880]]

the consideration of adverse modification in section 7 consultations.
Both proposed units are expected to experience similar levels of
incremental impact. Differences in forecast impacts across the two
units are predominately a result of the distribution of land ownership,
rather than differences in activities across units.
As we stated earlier, we are soliciting data and comments from the
public on the draft economic analysis, as well as all aspects of the
proposed rule and our amended required determinations. We may revise
the proposed rule or supporting documents to incorporate or address
information we receive during the public comment period. In particular,
we may exclude an area from critical habitat if we determine that the
benefits of excluding the area outweigh the benefits of including the
area, provided the exclusion will not result in the extinction of this
species.

Draft Environmental Assessment

The purpose of the draft environmental assessment, prepared under
the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.),
is to identify and disclose the environmental consequences resulting
from the proposed action of designating critical habitat for the Jemez
Mountains salamander. In the draft environmental assessment, two
alternatives are evaluated: Alternative A, the proposed rule, and the
no action alternative. Under Alternative A, critical habitat units on
private and other lands could potentially be excluded in the final rule
based on economic impact, national security, or other relevant impacts.
We did not propose exclusion of private or any other lands. Alternative
A is the current proposal, and the no action alternative is equivalent
to no designation of critical habitat for the Jemez Mountains
salamander. The no action alternative is required by NEPA for
comparison to the other alternatives analyzed in the draft
environmental assessment. Our preliminary determination is that
designation of critical habitat for the Jemez Mountains salamander will
not have direct impacts on the environment. However, we will further
evaluate this issue as we complete our final environmental assessment.
As we stated earlier, we are soliciting data and comments from the
public on the draft environmental assessment, as well as all aspects of
the proposed rule. We may revise the proposed rule or supporting
documents to incorporate or address information we receive during the
comment period on the environmental consequences resulting from our
designation of critical habitat.

Required Determinations--Amended

In our September 12, 2012, proposed rule (77 FR 56482), 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 draft economic
analysis. We have now made use of the draft economic analysis data to
make these determinations. In this document, we affirm the information
in our proposed rule concerning Executive Order (E.O.) 12866
(Regulatory Planning and Review), E.O. 13132 (Federalism), E.O. 12988
(Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and
Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and the
President's memorandum of April 29, 1994, ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951).
However, based on the draft economic analysis data, we are amending our
required determinations concerning the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), E.O. 12630 (Takings), and the National
Environmental Policy Act (42 U.S.C. 4321 et seq.).

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 draft economic analysis 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 Jemez Mountains salamander would affect a substantial number of
small entities, we considered the number of small entities affected
within particular types of economic activities, such as fire
management, private development, transportation, and livestock grazing.
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. In areas where
the Jemez Mountains salamander is present, Federal agencies already are
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

[[Page 9881]]

incorporated into the existing consultation process.
In the draft economic analysis, 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
Jemez Mountains salamander. The designation of critical habitat for the
salamander is unlikely to directly affect any small entities. Ninety-
seven percent of land in the designation is Federally owned.
Anticipated incremental impacts in proposed critical habitat are
primarily related to consultations on fire management and other Federal
land management activities (comprising approximately 99 percent of the
annual anticipated incremental costs of the designation). The remaining
forecast impacts are anticipated to be conducted for road and highway
maintenance projects. Little to no impact to third parties is expected
associated with these activities. For this reason, there would be
little to no impacts to small entities as a result of critical habitat
designation for the salamander. Please refer to the draft economic
analysis of the proposed critical habitat designation for a more
detailed discussion of potential economic impacts.
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. 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.

Takings--Executive Order 12630

In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Jemez Mountains salamander in a takings implications
assessment. Critical habitat designation does not affect landowner
actions that do not require Federal funding or permits, nor does it
preclude development of habitat conservation programs or issuance of
incidental take permits to allow actions that do require Federal
funding or permits to go forward. The takings implications assessment
concludes that this proposed designation of critical habitat does not
pose significant takings implications for lands within or affected by
the designation. However, we will further evaluate this issue as we
complete our final economic analysis, and review and revise this
assessment as appropriate.

National Environmental Policy Act (NEPA)

It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in
connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).] However, when the range of the species includes States
within the Tenth Circuit, such as that of the Jemez Mountains
salamander, under the Tenth Circuit ruling in Catron County Board of
Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th
Cir. 1996), we will undertake a NEPA analysis for critical habitat
designation. In accordance with the Tenth Circuit, we have completed a
draft environmental assessment to identify and disclose the
environmental consequences resulting from the proposed designation of
critical habitat for the Jemez Mountains salamander. Our preliminary
determination is that the designation of critical habitat for the Jemez
Mountains salamander would not have direct impacts on the environment.
However, we will further evaluate this issue as we complete our final
environmental assessment.

Authors

The primary authors of this notice are the staff members of the New
Mexico Ecological Services Field Office, Southwest Region, U.S. Fish
and Wildlife Service.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

Accordingly, we propose to further amend the proposed amendments to
part 17, subchapter B of chapter I, title 50 of the Code of Federal
Regulations, as published on September 12, 2012, at 77 FR 56482, as set
forth below:

PART 17--[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

0
2. In Sec. 17.95(d), in the proposed entry for ``Jemez Mountains
Salamander (Plethodon neomexicanus)'', as published at 77 FR 56482,
revise proposed paragraph (d)(2) to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(d) Amphibians.
* * * * *
Jemez Mountains Salamander (Plethodon neomexicanus)
* * * * *
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
Jemez Mountains salamander consist of four components:
(i) Moderate to high tree canopy cover, typically 50 to 100 percent
canopy closure, that provides shade and maintains moisture and high
relative humidity at the ground surface, and:
(A) Consists of the following tree species alone or in any
combination: Douglas fir (Pseudotsuga menziesii); blue spruce (Picea
pungens); Engelman spruce (Picea engelmannii); white fir (Abies
concolor); limber pine (Pinus flexilis); ponderosa pine (Pinus
ponderosa); and aspen (Populus tremuloides); and
(B) Has an understory that predominantly comprises: Rocky Mountain
maple (Acer glabrum); New Mexico locust (Robinia neomexicana);
oceanspray (Holodiscus sp.); or shrubby oaks (Quercus spp.).
(ii) Elevations from 6,988 to 11,254 feet (2,130 to 3,430 meters).
(iii) Ground surface in forest areas with:
(A) Moderate to high volumes of large fallen trees and other woody
debris, especially coniferous logs at least 10 inches (25 centimeters)
in diameter, particularly Douglas fir, which are in contact with the
soil in varying stages of decay from freshly fallen to nearly fully
decomposed; or
(B) Structural features, such as rocks, bark, and moss mats that
provide the species with food and cover.
(iv) Underground habitat in forest or meadow areas containing
interstitial spaces provided by:
(A) Igneous rock with fractures or loose rocky soils;
(B) Rotted tree root channels; or

[[Page 9882]]

Dated: February 1, 2013.
Michael J. Bean
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2013-03111 Filed 2-11-13; 8:45 am]
BILLING CODE 4310-55-P

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