Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Jemez Mountains Salamander, 69569-69591 [2013-27736]

Download as PDF Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled ‘‘Federalism’’ (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled ‘‘Consultation and Coordination With Indian Tribal Governments’’ (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note). VII. Congressional Review Act Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: November 7, 2013. Daniel J. Rosenblatt, Acting Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: ■ Authority: 21 U.S.C. 321(q), 346a and 371. 2. In § 180.466: a. Remove the entries for ‘‘Bushberry subgroup 13B,’’ ‘‘Fruit, citrus, group 10,’’ ‘‘Fruit, pome, group 11,’’ ‘‘Grape,’’ ‘‘Juneberry,’’ ‘‘Lingonberry,’’ ‘‘Salal,’’ ‘‘Strawberry,’’ and ‘‘Vegetable, fruiting, group 8’’ from the table in paragraph (a). ■ b. Add alphabetically the following entries to the table in paragraph (a). The amendments read as follows: ■ pmangrum on DSK3VPTVN1PROD with RULES ■ VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 § 180.466 Fenpropathrin; tolerances for residues. 69569 southwest/es/NewMexico/index.cfm and at http://www.regulations.gov at Docket (a) * * * No. FWS–R2–ES–2013–0005. Comments and materials we received, as well as Parts per supporting documentation used in Commodity million preparing this final rule, are available for public inspection, by appointment, during normal business hours, at the * * * * * Barley, grain ........................... 0.04 U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, Barley, hay .............................. 3.0 Barley, straw ........................... 2.0 2105 Osuna NE., Albuquerque, NM Berry, low growing, subgroup 87113; telephone 505–346–2525; or 13–07G ............................... 2.0 facsimile 505–346–2542. The coordinates or plot points or both * * * * * from which the maps are generated are Bushberry subgroup 13–07B .. 3.0 included in the administrative record for this critical habitat designation and * * * * * are available at http://www.fws.gov/ Fruit, citrus, group 10–10 ....... 2.0 southwest/es/NewMexico/index.cfm, at Fruit, pome, group 11–10 ....... 5.0 Fruit, small vine climbing, exhttp://www.regulations.gov at Docket cept fuzzy kiwifruit, subNo. FWS–R2–ES–2013–0005, and at the group 13–07F ...................... 5.0 New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION * * * * * CONTACT). Any additional tools or Vegetable, fruiting, group 8– supporting information that we 10 ........................................ 1.0 developed for this critical habitat designation are also available at the Fish * * * * * and Wildlife Service Web site and Field Office set out above, and may also be * * * * * included in the preamble of this rule or [FR Doc. 2013–27680 Filed 11–19–13; 8:45 am] at http://www.regulations.gov. BILLING CODE 6560–50–P FOR FURTHER INFORMATION CONTACT: Wally Murphy, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico DEPARTMENT OF THE INTERIOR Ecological Services Field Office, 2105 Fish and Wildlife Service Osuna NE., Albuquerque, NM 87113; by telephone 505–346–2525; or by 50 CFR Part 17 facsimile 505–346–2542. If you use a telecommunications device for the deaf [Docket No. FWS–R2–ES–2013–0005: (TDD), call the Federal Information 4500030113] Relay Service (FIRS) at 800–877–8339. RIN 1018–AZ28 SUPPLEMENTARY INFORMATION: Endangered and Threatened Wildlife Executive Summary and Plants; Designation of Critical Why we need to publish a rule. Under Habitat for the Jemez Mountains the Endangered Species Act (Act), any Salamander species that is determined to be an AGENCY: Fish and Wildlife Service, endangered or threatened species Interior. requires critical habitat to be designated, to the maximum extent prudent and ACTION: Final rule. determinable. Designations and SUMMARY: We, the U.S. Fish and revisions of critical habitat can only be Wildlife Service, designate critical completed by issuing a rule. habitat for the Jemez Mountains We listed the Jemez Mountains salamander (Plethodon neomexicanus) salamander as an endangered species on under the Endangered Species Act of September 10, 2013 (78 FR 55599). This 1973 (Act), as amended. In total, we are is a final rule to designate critical designating as critical habitat for this habitat for the Jemez Mountains species approximately 90,716 acres salamander. Section 4(b)(2) of the Act (36,711 hectares) in Los Alamos, Rio states that the Secretary shall designate Arriba, and Sandoval Counties, New critical habitat on the basis of the best Mexico. The effect of this regulation is available scientific data after taking into to conserve the Jemez Mountains consideration the economic impact, salamander’s habitat under the Act. national security impact, and any other DATES: This rule is effective on relevant impact of specifying any December 20, 2013. particular area as critical habitat. ADDRESSES: This final rule is available The critical habitat areas we are on the Internet at http://www.fws.gov/ designating in this rule constitute our PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\20NOR1.SGM 20NOR1 69570 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations current best assessment of the areas that meet the definition of critical habitat for the Jemez Mountains salamander. We are designating as critical habitat for the species approximately 90,716 acres (36,711 hectares) in Los Alamos, Rio Arriba, and Sandoval Counties, New Mexico. We have prepared economic and environmental analyses of the designation of critical habitat. In order to consider economic impacts, we have prepared an analysis of the economic impacts of the critical habitat designation and related factors. We also prepared an environmental analysis of the designation of critical habitat in order to evaluate whether there would be any significant environmental impacts as a result of the critical habitat designation. We announced the availability of the draft economic analysis and the draft environmental assessment in the Federal Register on February 12, 2013 (78 FR 9876), allowing the public to provide comments on our analyses. We have incorporated the comments and have completed the final economic analysis and final environmental analysis for this final designation. Peer review and public comment. We sought comments from seven independent specialists to ensure that our designation is based on scientifically sound data and analyses. We obtained opinions from three of the seven knowledgeable individuals with scientific expertise to review our technical assumptions and analysis, and to determine whether or not we had used the best available scientific information. These peer reviewers generally concurred with our methods and conclusions, and they provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated in this final revised designation. We also considered all comments and information we received from the public during the comment period. pmangrum on DSK3VPTVN1PROD with RULES Previous Federal Actions These actions are described in the Previous Federal Actions section of the final listing rule published on September 10, 2013 (78 FR 55599). Background The Jemez Mountains salamander is restricted to the Jemez Mountains in northern New Mexico, in Los Alamos, Rio Arriba, and Sandoval Counties, around the rim of the collapsed caldera (large volcanic crater), with some occurrences on topographic features (e.g., resurgent domes) on the interior of VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 the caldera. The majority of salamander habitat is located on federally managed lands, including the U.S. Forest Service (USFS), the National Park Service (Bandelier National Monument), Valles Caldera National Preserve, and Los Alamos National Laboratory, with some habitat located on tribal land and private lands (New Mexico Endemic Salamander Team 2000, p. 1). The Valles Caldera National Preserve is located within the valley of the extinct volcanic crater itself and is part of the National Forest System (owned by the U.S. Department of Agriculture), but run by a nine-member Board of Trustees, some of whom are not USFS employees. For additional background information on the biology, taxonomy, distribution, and habitat of the Jemez Mountains salamander, see the Background section of the final listing rule published on September 10, 2013 (78 FR 55599). Summary of Comments and Recommendations We requested written comments from the public on the proposed designation of critical habitat for the Jemez Mountains salamander during two comment periods. The first comment period associated with the publication of the proposed rule (77 FR 56482) opened on September 12, 2012, and closed on November 13, 2012. We also requested comments on the proposed critical habitat designation and associated draft economic analysis and draft environmental assessment during a comment period that opened February 12, 2013, and closed on March 14, 2013 (78 FR 9876). We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. A newspaper notice inviting general public comment was published in the Los Alamos Monitor. We did not receive any requests for a public hearing. During the first comment period, we received nine comment letters addressing the proposed listing of the Jemez Mountains salamander and the proposed critical habitat designation. During the second comment period, we received 11 comment letters addressing the proposed listing of the Jemez Mountains salamander, the proposed critical habitat designation, the draft economic analysis, or the draft environmental assessment. All substantive information related to the proposed critical habitat designation that was provided during comment periods has either been incorporated directly into this final determination or is addressed below. Comments we PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 received are grouped into general issues specifically relating to the proposed critical habitat designation for the Jemez Mountains salamander, and are addressed in the following summary and incorporated into the final rule as appropriate. Peer Review In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from seven knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from three of the peer reviewers. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding critical habitat for the Jemez Mountains salamander. All three peer reviewers agreed that the information presented in the proposed rule to list the Jemez Mountains salamander with critical habitat is scientifically sound and well researched; agreed that the assumptions, analyses, and conclusions are well reasoned; and generally agreed that the information is well formulated and that the risks or threats to the species have been appropriately evaluated. The peer reviewers provided clarifications and suggestions to improve the final rules to list the Jemez Mountains salamander as endangered and to designate critical habitat. Peer reviewer comments specifically regarding the designation of critical habitat are addressed in the following summary and incorporated into the final rule as appropriate. Peer Reviewer Comments (1) Comment: Two peer reviewers thought we should not have removed isolated historical data points (i.e., survey locations). One peer reviewer noted that there did seem to be sufficient area for the conservation of the species, and the other peer reviewer thought the isolated historical point data should be included, especially for areas in the northeast portion of the Valles Caldera National Preserve if large numbers of salamanders were previously reported. Our Response: We removed isolated historical data points from our analysis only in occasional instances when the areas at and around such isolated data points have not been visited for approximately 20 years or more. The survey data for these areas are insufficient to determine whether the areas are occupied. We are not aware of any area where large numbers of E:\FR\FM\20NOR1.SGM 20NOR1 pmangrum on DSK3VPTVN1PROD with RULES Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations salamanders have ever been observed that is outside of the critical habitat boundaries designated in this final rule. (2) Comment: One peer reviewer commented that solid stands of Ponderosa pine (Pinus ponderosa) are not optimal salamander habitat, and few, if any, salamanders are likely to occur here due to the drier conditions, suggesting that the primary constituent element of certain tree species alone or in combination should not include Ponderosa pine alone. Our Response: Based on the biological and physiological needs of the species, pure stands of Ponderosa pine may not be the most favorable type of habitat and do not represent the majority of habitat; however, the species does occur in pure stands of Ponderosa pine. The primary constituent elements essential to the conservation of the species (such as space, food, cover, and protected habitat) include tree canopy cover greater than 50 percent, elevation between 6,988 to 11,254 feet (ft) (2,130 to 3,430 meters (m)), coniferous logs, and underground habitat (more detailed description of these features are in the Primary Constituent Elements for the Jemez Mountains Salamander section of this final rule). The pure stands of Ponderosa pine contain at least one of the primary constituent elements for the Jemez Mountains salamander. Consequently, the Service designated critical habitat in stands of pure Ponderosa pine in both units (e.g., west of Seven Springs in Unit 1, and at American Springs and adjacent to the Rio Cebolla in Unit 2). (3) Comment: One peer reviewer commented on the statement in the proposed critical habitat rule, ‘‘There does not seem to be any areas in occupied salamander habitat that are protected from disturbance’’ (77 FR 56504; September 12, 2012) and suggested that Redondo Peak, the highest point where salamanders are found, might be protected from disturbance. Our Response: Redondo Peak does receive some protection at this time because the Valles Caldera Trust manages for its ecological and scenic values, and also protects its significant cultural, religious, and historic values. The Valles Caldera Preservation Act (16 U.S.C. 698v et seq.) prohibits motorized access as well as any construction of roads, structures, or facilities on Redondo Peak above 10,000 ft (3,048 m). While Redondo Peak is afforded some protection from new actions that would disturb habitat, it still experiences impacts to habitat from past silvicultural practices, alterations in vegetation composition and fire regimes, VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 existing roads, and climate change. The Background section under Critical Habitat below in this final rule provides additional information. (4) Comment: Two peer reviewers and some commenters thought additional information regarding our understanding of the subsurface rock and soil components of salamander habitat should be included in the habitat section. Our Response: Subsurface geology and loose rocky soil structure may be an important attribute of salamander habitat (Degenhardt et al. 1996, p. 28). However, the composition of this belowground habitat has not been fully investigated, although soils comprised of pumice or tuft generally are not suitable. The salamander’s belowground habitat appears to be deep, fractured, subterranean igneous rock in areas with high soil moisture (New Mexico Endemic Salamander Team 2000, p. 2). Everett (2003) reported that the salamander occurred in areas where soil texture was composed of 56 percent sandy clay loam, 36 percent clay loam, 6 percent sandy loam, and 2 percent silty clay loam (p. 28); the overall soil bulk density ranged from 0.2 to 0.98 ounces per cubic inch (oz per in3) (0.3 to 1.7 grams per cubic centimeter (g per cm3) (p. 28); and average soil moisture ranged from 4.85 to 59.7 percent (p. 28). Sites with salamanders had a soil pH of 6.6 (± 0.08), and sites without salamanders had a soil pH of 6.2 (± 0.06) (Ramotnik 1988, pp. 24–25). We have updated the relevant sections of this final rule to better describe our current understanding of subsurface rock and soil components where the Jemez Mountains salamander occurs. We have clarified the language in relevant sections of this final rule. We are not aware of any reliable information that is currently available to us on these topics that was not considered in this designation process. Comments From the U.S. Forest Service (5) Comment: It is questionable whether the data used in the proposed rule are sufficient for the Service to determine critical habitat and primary constituent elements. Our Response: It is often the case that biological information may be lacking for rare species; however, we reviewed all available information and incorporated it into this final rule. Section 4(a)(3) of the Act (16 U.S.C. 1531 et seq.), and its implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be an PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 69571 endangered or threatened species. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (1) Information sufficient to perform required analyses of the impacts of the designation is lacking, or (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. When critical habitat is not determinable, the Act provides for an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)). We reviewed the best available scientific information pertaining to the biological needs of the species and habitat characteristics where this species is located. We sought comments from independent peer reviewers to ensure that our designation is based on scientifically sound data, assumptions, and analysis. We also solicited information from the general public, nongovernmental conservation organizations, State and Federal agencies that are familiar with the species and their habitats, academic institutions, and groups and individuals that might have information that would contribute to an update of our knowledge of the species as well as the activities and natural processes that might be contributing to the decline of the species. We conclude that the designation of critical habitat is determinable for the Jemez Mountains salamander. (6) Comment: Practical ways to measure primary constituent elements should be defined, and the scale at which primary constituent elements are measured on the landscape should be specified. It is virtually impossible for the USFS to plan for a specific range in canopy cover or plan a thinning or prescribed fire project with canopy cover as an objective. Forests of the Jemez Mountains are dynamic in nature, consisting of mixed severity fire regimes in moist mixed conifer up to spruce-fir forests that likely ranged from moderately closed canopy to closed and also resulted in patches within stands with open canopy following standreplacement fires. Our Response: The Service is not requiring the USFS to plan for a specific range in canopy cover or plan a thinning or prescribed fire project with canopy cover as an objective. Rather, we are evaluating whether the affected critical habitat would continue to serve its intended conservation role for the species. Determining effects to critical habitat will be determined through section 7 consultation with the Service. These consultations will take place within the context of dynamic forests in E:\FR\FM\20NOR1.SGM 20NOR1 pmangrum on DSK3VPTVN1PROD with RULES 69572 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations need of restoration. We anticipate consultations with the USFS analyzing the primary constituent element of ‘‘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’’ for the Jemez Mountains salamander will be similar to consultations with the USFS analyzing the primary constituent element of ‘‘A shade canopy created by the tree branches covering 40 percent or more of the ground’’ for the Mexican spotted owl (Strix occidentalis lucida), particularly where the ranges of the species overlap. (7) Comment: The primary constituent element of canopy cover needs to be defined as a range rather than a specific number and possibly by forest type. Our Response: In this final rule, we have clarified the primary constituent element concerning canopy cover is a range. The range for tree canopy is defined in this final rule as 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. (8) Comment: High canopy cover is likely to decrease the amount of moisture reaching the soil surface through sublimation (transformation from a solid to a gas without becoming a liquid) of snow from the tree canopy (Storck et al. 2002), further impacting moisture regimes for salamanders. Our Response: The relationship between seasonal precipitation, canopy cover, vegetation type, tree density, geology, soil type, and soil moisture is complex and not well-studied in the Jemez Mountains. Everett (2003, p. 24) characterized Jemez Mountains salamander’s habitat as having an average canopy cover of 76 percent, with a range between 58 to 94 percent, and average soil moisture between 4.85 and 59.7 percent (p. 28). When Jemez Mountains salamanders have been observed above ground during the day, they are primarily found in high moisture retreats (such as under and inside decaying logs and stumps, and under rocks and bark) (Everett 2003, p. 24) with high overstory canopy cover. Soil moisture conditions can vary spatially between the ground under tree canopy and the ground without tree canopy, as a result of the interrelated processes among soil evaporation, leaf interception, runoff generation and redistribution, and plant water use (Breshears et al. 1998, p. 1015). Relative to the ground without tree canopy, the ground beneath the canopy receives reduced precipitation input due to the VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 interception of the precipitation from leaves. This also influences soil evaporation rates (Breshears et al. 1998, p. 1010). In a study measuring spatial variations in soil evaporation caused by tree shading for a water-limited pine forest in Israel, the authors report that the spatial variability in soil evaporation correlated with solar radiation, which was up to 92 percent higher in exposed compared to shaded sites, and with water content, which was higher in exposed areas during the wetting season, but higher in the shaded areas during the drying season (Raz-Yaseef and Yakir 2010, p. 454). This study highlights the importance of shade and soil moisture conservation, and generally supports the findings of Breshears et al. (entire). Without specific studies measuring these processes in salamander habitat, we are not able to determine how the changes in vegetation composition and structure may have altered soil moisture, evaporation, and temperature processes, but we do understand that vegetation structure can directly influence hydrological processes that are correlated to solar radiation, precipitation, and seasonality, as well as other abiotic factors, such as soil type, slope, and topography. Furthermore, these complex interactions should be considered when forest restoration treatments that alter canopy cover are conducted in salamander habitat. (9) Comment: Consultations could result in modifications, which result in delays to projects that would reduce the threat of high-intensity wildfire, thereby causing significant impacts to human health and safety. Our Response: Under no circumstances should a Service representative obstruct an emergency response decision made by the action agency where human life is at stake. In any future consultation for the salamander, the Service does not intend or expect to recommend measures that will increase the threat of high-intensity wildfire. Both public and private entities may experience incremental time delays for projects and other activities due to requirements associated with the need to re-initiate the section 7 consultation process or compliance with other laws triggered by the designation. To the extent that delays result from the designation, they are considered indirect, incremental impacts of the designation. (10) Comment: Several commenters stated that more scientific information is needed to accurately define the primary constituent elements, that the primary constituent elements are overly broad and are not appropriate, and the the PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 Service has not looked at all the scientific data available on the ecology of the Jemez Mountains. Our Response: Section 4(b)(2) of the Act states, ‘‘The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available.’’ We considered the best scientific information available to us at this time, as required by the Act. This designation is based upon the known body of information on the biology of the Jemez Mountains salamander and its most closely related species, as well as effects from land-use practices on their continued existence. All three peer reviewers confirmed that the information contained within this rule is scientifically sound; based on a combination of reasonable facts, assumptions, and conclusions; and well considered. We are not aware of any reliable information that is currently available to us that was not considered in this designation process. This final determination constitutes our best assessment of areas needed for the conservation of the species. Much remains to be learned about this species. Should credible, new information become available that contradicts this designation, we will reevaluate our analysis and, if appropriate, propose to modify this critical habitat designation, depending on available funding and staffing. We must make this determination on the basis of the best information available at this time, and we may not delay our decision until more information about the species and its habitat are available (see Southwest Center for Biological Diversity v. Babbitt, 215 F.3d 58 (D.C. Cir. 2000)). (11) Comment: Several commenters stated that the primary constituent elements and critical habitat for the salamander are contrary to managing fire-resilient forests, are contrary to restoring forests to a sustainable fire regime condition class, or are a significant contribution to fuel loading and risk of catastrophic fire. Designation and management of critical habitat will place an additional burden on land management agencies, further inhibiting their ability to prevent or suppress large-scale, stand-replacing wildfire, one of the greatest threats to the salamander and its habitat. Some of the primary constituent elements are based on current conditions, not historical conditions. Management for the salamander should be done in a manner to improve fire resiliency and with a goal of moving habitat toward old growth characteristics where feasible, taking into consideration ecological conditions such as slope, aspect, soil E:\FR\FM\20NOR1.SGM 20NOR1 pmangrum on DSK3VPTVN1PROD with RULES Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations productivity, and recognizing that forests are dynamic where climate, fire, and disease are drivers. The citation used for canopy cover is based on current and unsustainable forest conditions. Application of survey requirements for salamanders across the described range of above 6,900 ft (2,103 m) would effectively prevent management from occurring at any scale that would influence landscape-level wildfire. Our Response: We understand fireresilient forests to be forests that are able to survive wildfires relatively intact, or with less severe ecological damage than would occur in nonresilient forests. The Service recognizes that salamander habitat has undergone change resulting from historical grazing practices and effective fire suppression, most often resulting in shifts in vegetation composition and structure and increased risk of large-scale, standreplacing wildfire. While we do not have a full understanding of how these particular alterations affect the salamander (potentially further drying habitat through increased water demand or increased density of trees, or, alternatively, potentially increasing habitat moisture from a higher canopy cover), we do know that the changes in the vegetative component of salamander habitat have greatly increased the risk of large-scale, stand-replacing wildfire. In the proposed rule and this final rule, the Service identifies reducing fuels to minimize the risk of severe wildfire in a manner that considers the salamander’s biological requirements as a special management activity that could ameliorate threats to the species. We note that fires are a natural part of the fire-adapted ecosystem in which the salamander has evolved. This may include prescribed fire and thinning treatments, restoration of the frequency and spatial extent of such disturbances as regeneration treatments, and implementation of prescribed natural fire management plans where feasible. We consider use of such treatments to be compatible with the ecosystem management of habitat mosaics and the best way to reduce the threats of catastrophic wildfire. The maintenance of primary constituent elements, moist microhabitat conditions, and attributes of a mixed severity fire regime (a mosaic of differing fire intensities) over a portion of the landscape and in areas that support salamanders is important to the recovery of the salamander, and critical habitat designation does not preclude the proactive treatments necessary to reduce the risk of catastrophic fire or proactively managing forests to restore them to old VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 growth conditions, nor are there survey requirements associated with this designation. The loss of salamander habitat by catastrophic fire is counter to the intended benefits of critical habitat designation. Furthermore, we expect that some activities may be considered to be of benefit to salamander habitat and, therefore, would not be expected to adversely modify critical habitat or place an additional burden on land management agencies. In addition, critical habitat does not preclude adaptive management or the incorporation of new information on the interaction between natural disturbance events and forest ecology. We continue to support sound ecosystem management and the maintenance of biodiversity, and we will fully support land management agencies in addressing the management of fire to protect and enhance natural resources under their stewardship. During a multi-agency, multistakeholder collaborative meeting in 2010, to discuss salamander conservation and forest management, attendants recognized the importance of allowing fire to return to southwestern forests, and the Jemez Mountains, in particular. There was agreement that focusing restoration treatments on south-facing slopes that have converted to xeric mixed conifer over the past 100 years would break up the continuity of excessive fuels across the landscape and would be a good starting place to reduce the risk of large-scale wildfires in the Jemez Mountains. It was agreed upon that there would be short-term negative impacts to the salamander and its habitat on south-facing slopes, but that the approach overall was beneficial to the conservation of the species and its habitat over its entire range (Jemez Mountains Salamander Adaptive Planning Workshop 2010, pp. 8–11). (12) Comment: The USFS stated that using only the decision criterion of administrative costs associated with expanded consultation fails to include the full range of costs when projects are delayed or changed. The USFS suggests that the Service should also calculate the costs associated with the reasonable and prudent alternatives that could result from consultation, such as relocation of projects outside salamander habitat or monitoring for salamanders before activities occur. Our Response: As stated in the executive summary of the final economic analysis, the Service anticipates that in cases where an action is found to adversely modify critical habitat for the salamander, the action would also be found to jeopardize the PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 69573 species (IEc 2013, p. ES–4). That is, actions which the Service is likely to recommend avoiding adverse modification are the same as those to avoid jeopardy. Thus, the incremental impacts of the critical habitat designation for the salamander appear unlikely to include additional conservation actions or project modifications. As a result, the economic analysis focused on quantifying the incremental impacts associated with the administrative effort of addressing potential adverse modification of critical habitat in the context of section 7 consultations. Comments Received From the U.S. Forest Service on the Draft Environmental Assessment (13) Comment: The draft environmental assessment should describe the effects that large areas (such as the area currently proposed as critical habitat) of closed canopy may have to the salamander under current fire conditions. Our Response: We understand that the forests of the Jemez Mountains are dynamic, and we are not suggesting that the entire area of critical habitat consists of uniformly closed canopy throughout the two units of critical habitat. Furthermore, the designation of critical habitat does not require the creation of primary constituent elements where they do not currently exist. The proposed rule included the Service’s analysis of the relationship of forest canopy to Jemez Mountains salamander habitat and fire conditions, concluding, ‘‘Therefore, forest composition and structure conversions resulting in increased canopy cover and denser understory pose threats to the salamander now and are likely to continue in the future’’ (77 FR 56489; September 12, 2012). (14) Comment: The draft environmental assessment first states it will analyze effects on physical, biological, and socioeconomic resources, but its analysis then states it only focuses on consultation impacts. Our Response: Section 3.1.1 of the final environmental assessment, ‘‘Methodology,’’ explains why the proposed action is not expected to produce effects to physical and biological resources environments, and why the analysis focuses on the impacts of expanding jeopardy consultations to include adverse modification (Mangi Environmental Group 2013, pp. 20–23). (15) Comment: The draft environmental assessment states that effects from designating critical habitat would be minor, but presents no evidence. The USFS would argue that E:\FR\FM\20NOR1.SGM 20NOR1 pmangrum on DSK3VPTVN1PROD with RULES 69574 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations not being able to implement a project, such as the Southwest Jemez Mountains Collaborative Forest Landscape Restoration Project, to its full extent is likely to result in a high-intensity wildfire with associated costs to society and natural resources. Our Response: As stated in the final environmental assessment, we may use habitat as a proxy for species presence in future consultations, because the life history and behavior of salamanders make them difficult to survey or detect (Mangi Environmental Group 2013, pp. 21–22). Therefore, consultation outcomes that affect the Southwest Jemez Mountains Collaborative Forest Landscape Restoration Project would be the same whether or not critical habitat is designated, and the impacts of concern here are not attributable to the designation of critical habitat. (16) Comment: The environmental assessment should analyze the benefits of exclusion of critical habitat according to section 4(b)(2) of the Act. Our Response: Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. We did not identify any areas for exclusion that were appropriate for consideration under section 4(b)(2) of the Act; therefore there were no exclusions to evaluate in the environmental assessment. (17) Comment: The draft environmental assessment lists contradictory recommendations to avoid destruction or adverse modification of critical habitat and to avoid jeopardy. Our Response: No consultations have yet been conducted for the Jemez Mountains salamander, so the potential outcomes and modifications presented in the environmental assessment represent a range of possible outcomes. The type of project, the timing of the project, and the duration of the project, VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 in addition to other factors, will be evaluated during any future consultations and will determine the specific outcomes or recommended modifications. In most cases, we expect that the same agencies and types of projects will go through the section 7 consultation process with or without critical habitat, and we anticipate that recommended actions in a section 7 consultation will be same to avoid adverse modification and jeopardy. (18) Comment: Cumulative effects analysis in the draft environmental assessment needs to: (a) Identify spatial and temporal bounds, (b) include cumulative effects for other foreseeable listings, (c) total all consultation costs within the proposed area, and (d) clarify what cumulative effects are being considered. Our Response: The spatial bounds for cumulative analysis are the boundaries of proposed critical habitat. While it is possible that certain activities requiring consultation could occur outside of critical habitat, there is none currently foreseeable. Also, it was beyond the purview of the environmental assessment to speculate on the prudency or actual boundaries of a critical habitat designation for candidate species. In addition, total consultation costs are given in the analysis of socioeconomic impacts as approximately $260,000 (IEc 2013, p. ES–4). Mention of this figure has been added to the cumulative impacts analysis of socioeconomic effects in the final environmental assessment (Mangi Environmental Group 2013, p. 63). For clarity, the following section in ‘‘Methodology’’ is repeated in the ‘‘Cumulative Effects’’section of the final environmental assessment: ‘‘In the case of the salamander, the Service expects that the same agencies and types of projects would go through the section 7 consultation process with or without critical habitat, and that the same number of projects would likely undergo consultation with critical habitat as without. Therefore, the analysis of impacts to resources and activities focuses on the impacts of expanding jeopardy consultations to include analysis of adverse modification.’’ (19) Comment: The only costs listed in the environmental assessment are for the Socioeconomics and Development sections. Our Response: In our economic analysis, the Service estimates the present value of all incremental impacts to be approximately $264,000 over 20 years, assuming a 7 percent discount rate. These incremental costs are administrative costs resulting from the PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 consideration of adverse modification in section 7 consultations regarding fire management ($120,000), road maintenance ($71,000), and other Federal and State land management activities, such as noxious weed control, recreational management, livestock grazing, and the operation of the Seven Springs Fish Hatchery ($73,000) (IEc 2012). The components of total consultation costs are now itemized in the final environmental assessment (Mangi Environmental Group 2013, pp. 59–60). (20) Comment: The map on page 16 of the draft environmental assessment should show where salamanders are found, and overlay the essential, survey, and peripheral zones. Our Response: The map on page 16 of the environmental assessment displays the proposed critical habitat units. Overlaying the habitat management zones, as described in the multi-agency Salamander Conservation Plan (NMEST 2000), does not aid in evaluating the environmental impacts of critical habitat designation. The coordinates or plot points or both from which the maps for designated critical habitat are generated are included in the administrative record for this critical habitat designation and are available at http://www.fws.gov/southwest/es/ NewMexico/index.cfm, at http:// www.regulations.gov at Docket No. FWS–R2–ES–2013–0005, and at the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we developed for this critical habitat designation will also be available on the Service’s Web sites and at New Mexico Ecological Services Field Office. (21) Comment: In the draft environmental assessment, the Service projects a number of consultations within the ‘‘Land Use’’ section, but for no other resources. Our Response: Projected numbers of consultations have been added to the relevant sections of the final environmental assessment: 20 formal consultations for fire management, 6 for travel and recreation, 4 for noxious weed management, 2 for the Seven Springs Fish Hatchery, and 5 for road projects (Mangi Environmental Group 2013, p. 32). (22) Comment: There is a contradiction in the draft environmental assessment statement that, ‘‘As human development and recreation increase in the Jemez Mountains the presence of Wild Urban Interfaces (WUIs) could increase within and around proposed critical habitat.’’ E:\FR\FM\20NOR1.SGM 20NOR1 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES Our Response: Page 45 the draft environmental assessment stated, ‘‘Projects that increase human disturbances in remote locations like residential development, construction of roads and trails in recreational areas, and road clearing and maintenance activities, could adversely affect the species and its habitat,’’ which is consistent with the statement to which the commenter refers (Mangi Environmental Group 2013, pp. 45). However, we are unaware of any major construction projects planned within the proposed critical habitat. Beyond this, the commenter’s concern is not clear, but we have replaced the word ‘‘as’’ in the statement on p. 39 to ‘‘if,’’ to clarify that such increases are not inevitable (Mangi Environmental Group 2013, p. 39). (23) Comment: Explain the acronyms EMP and EST in Table 3.5 of the draft environmental assessment. Our Response: The acronyms refer to the number of employees (EMP) and establishments (EST) in each industry type. This has been clarified in the ‘‘Table Heading’’ of the final environmental assessment (Mangi Environmental Group 2013, p. 52). (24) Comment: Clarify whether Table 3.7 on page 54 of the draft environmental assessment applies to areas of the Santa Fe National Forest within proposed habitat, or to the whole National Forest, and if the latter, explain why it is relevant to this analysis. Our Response: The numbers represent visitors to the whole National Forest, and are provided as overall context for the analysis. Comments From the State We received comments from the New Mexico Department of Agriculture regarding the proposal to designate critical habitat for the Jemez Mountains salamander, which are addressed below. (25) Comment: The Service should address the Jemez Mountains salamander as a watershed health issue rather than a single species habitat preservation issue, and the designation of critical habitat will be counterproductive to solving the problem of poor watershed health in the Jemez Mountains. The USFS commented that the need to designate critical habitat is not supported by evidence. Our Response: The Service is required to designate critical habitat concurrently with listing a species. See our response to comment 5, above, for an explanation of critical habitat designation requirements under the Act. Designating critical habitat for the Jemez Mountains salamander does not preclude forest restoration or management practices, VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 including but not limited to prescribed fire and thinning treatments, restoration of the frequency and spatial extent of such natural disturbances, and implementation of prescribed natural fire management plans where feasible. We consider use of such treatments to be compatible with the ecosystem management of habitat mosaics and the best way to reduce the threats of catastrophic wildfire to Jemez Mountains salamander habitat and provide protection for the species. In addition, critical habitat designation for the Jemez Mountains salamander does not preclude adaptive management or the incorporation of new information on the interaction between natural disturbance events and forest ecology. We continue to support sound ecosystem management and the maintenance of biodiversity, and we will fully support land management agencies in addressing the management of fire to protect and enhance natural resources under their stewardship. (26) Comment: The efforts of private landowners and Soil and Water Conservation Districts (SWCDs) to prevent catastrophic wildfire and rehabilitate after wildfire are not considered. The New Mexico Department of Agriculture indicated that private landowners and SWCDs are thinning defensible spaces, implementing sustainable grazing practices, and implementing water development actions. Our Response: We recognize that private landowners and SWCDs are contributing to rehabilitation in burned areas by, among other things, seeding and controlling erosion. We know that private landowners and SWCDS are some of the numerous partners that are working with the Southwest Jemez Mountains Collaborative Forest Landscape Restoration Project. However, we do not know the extent of these actions nor their impact to the Jemez Mountains salamander or its habitat at this time. (27) Comment: The Service should partner with ongoing efforts, such as the Southwest Jemez Mountains Collaborative Forest Landscape Restoration Project, to effectively improve the watershed health of the Jemez Mountains and thus benefit the salamander. Our Response: We agree that strong partnerships and collaborations are essential for the restoration and conservation of our natural resources. The Service appreciates the ongoing efforts and collaborations with its existing partners, including members of the Southwest Jemez Mountains Collaborative Forest Landscape PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 69575 Restoration Project. We have attended, and continue to attend, planning and monitoring meetings, and we provide technical support for the Southwest Jemez Mountains Collaborative Forest Landscape Restoration Project. In addition, we look forward to establishing new partnerships to forward conservation. Comments From the New Mexico Department of Agriculture on the Draft Environmental Assessment and Economic Analysis (28) Comment: The designation of critical habitat could limit access to project sites with the effect of increasing associated costs or preventing access entirely, resulting in limited or cancelled watershed restoration work. Our Response: The designation of critical habitat does not prevent access to any land, whether private, tribal, State or Federal. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. The final environmental analysis lists potential project modifications that could be recommended to avoid adverse modification (Mangi Environmental Group 2013, pp. 42–43). This analysis includes looking at the limitations on the timing and route of access to a forest or fuels management project. (29) Comment: The designation of critical habitat could limit access, and ranching activity would be negatively affected. Our Response: See our response to comment 28, above. In section 1.8.1, Livestock Grazing, of the final E:\FR\FM\20NOR1.SGM 20NOR1 pmangrum on DSK3VPTVN1PROD with RULES 69576 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations environmental analysis, the following sentence has been revised from, ‘‘Impacts may include small-scale habitat modification, such as livestock trail establishment or soil compaction, or direct effects, such as trampling’’ To, ‘‘Impacts may include small-scale habitat modification, such as livestock trail establishment or soil compaction; limitations on access to grazing allotments by livestock managers through road closures or decommissioning; or direct effects, such as trampling’’ (Mangi Environmental Group 2013, pp. 12–13). (30) Comment: Listing of the salamander and designation of critical habitat may further slow progress of the Southwest Jemez Mountains Collaborative Forest Landscape Restoration Project by adding another level of bureaucracy and taking federal funding away from on-the-ground watershed restoration work to use for regulatory compliance associated with the Act. Our Response: Section 3.3.1 of the final economic analysis has been revised to discuss this concern (IEc 2013, p. 3–6). The analysis quantifies estimated additional administrative costs of critical habitat for the Jemez Mountaians salamander to be approximately $23,000 annually across all agencies. As stated in the executive summary of the economic analysis, the Service anticipates that in cases where an action is found to adversely modify critical habitat for the salamander, the action would also be found to jeopardize the species. That is, actions which the Service is likely to recommend to avoid adverse modification are the same as those to avoid jeopardy. Thus, the incremental impacts of the critical habitat designation for the salamander appear unlikely to include additional conservation actions or project modifications. As a result, this analysis focuses on quantifying the incremental impacts associated with the administrative effort of addressing potential adverse modification of critical habitat in the context of section 7 consultations. We recognize that there may be additional administrative costs associated with this critical habitat designation, but we do not think that these costs will have a significant negative impact on the Southwest Jemez Mountains Collaborative Forest Landscape Restoration Project. Comments From Santa Clara Pueblo (31) Comment: The Service indicated in the proposed rule that salvage logging and timber harvesting could adversely affect the salamander’s habitat because VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 these activities, among other things, compact soils or increase the risk of warming the soil moisture. In response, the Santa Clara Pueblo commented that, rather than decreasing soil moisture, responsible timber harvesting can actually increase available soil moisture because transpiration of the vegetation is decreased and more soil moisture becomes available for residual plant growth and for the salamander. Our Response: We agree with these statements, and believe that how actions such as timber harvesting occur could result in adverse, beneficial, or both impacts to the salamander and its habitat. (32) Comment: The Santa Clara Pueblo stated that it is in discussions with the USFS regarding comanagement stewardship activities in some National Forest Service lands pursuant to the Tribal Forest Protection Act (25 U.S.C. 3101 et seq.); some of the proposed Tribal Forest Protection Act project lands are located within the areas proposed by the Service as critical habitat for the salamander. The Santa Clara Pueblo notes that the draft economic analysis does not consider economic impacts that the Santa Clara Pueblo would incur if fire management activities are curtailed due to the designation of critical habitat and if, as a result, additional stand replacement fires starting or burning through the Santa Fe National Forest and Valles Caldera National Preserve lands could jump onto unburned or replanted Santa Clara Pueblo lands. They cite, in particular, areas in Unit 1, known as the Upper Santa Clara Creek watershed, the Antlers and Cerro Toledo, as being of concern. They note that the Las Conchas fire severely burned 16,000 acres in Santa Clara Creek Canyon, their spiritual sanctuary. Our Response: The following material has been added to section 1.8.1 in the final environmental assessment (Mangi Environmental Group 2013, p. 13) under a new header ‘‘Tribal Resources’’: ‘‘There are no tribal lands within the critical habitat designation. However, the designation includes lands within the Santa Fe National Forest and Valles Caldera National Preserve that are adjacent to the Santa Clara Pueblo (Pueblo). Much of these adjacent areas were severely burned during the Las Conchas Fire of 2011. These lands include culturally important areas for the Pueblo and have unhealthy, unburned forest conditions that make them a continued, immediate threat to catastrophic wildfire spreading onto Pueblo lands (Santa Clara Pueblo 2013). Therefore, the Pueblo has entered in discussions with the USFS, pursuant to PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 the Tribal Forest Protection Act, to comanage stewardship projects on these lands, including hazardous fuels reduction and ensuring there are proper fuel breaks to protect remnant unburned areas on Pueblo lands from fires coming off National Forest lands. Consultations with Santa Fe National Forest on fire management activities proposed on Pueblo-adjacent lands pursuant to the Tribal Forest Protection Act will be conducted in accordance with the Service’s responsibilities as outlined in Secretarial Order 3206, which states (Appendix, section 3(C)(3)(c), ‘‘When the Services enter info formal consultations with agencies not in the Departments of the Interior or Commerce, on a proposed action which may affect tribal rights or tribal trust resources, the Services shall notify the affected Indian tribe(s) and encourage the action agency to invite the affected tribe(s) and the BIA [Bureau of Indian Affairs] to participate in the consultation process’’ (Service 1997).’’ Section 3.3 of the economic analysis has been modified to reflect Pueblo concerns, including potential impacts on tribal economic and cultural activities associated with changes to planned fire management activities. This section assumes that Tribal Forest Protection Act activities will be included in the USFS consultations forecasted to occur every 10 years. The economic analysis has included Santa Clara Pueblo Tribal Forest Protection Act activities under chapter 3, Fire Management under Baseline Conservation Efforts (IEc, April 22, 2013, p. 3–7). (33) Comment: Santa Clara Pueblo stated that the primary constituent elements could affect fire protection, forest, and ecological restoration management measures for projects associated with the Tribal Forest Protection Act. Our Response: See our responses to comments 11 and 25, above. Public Comments (34) Comment: Jemez Mountains salamanders have been found in areas without canopy or with a canopy other than mixed conifer. The emphasis placed on some of the primary constituent elements and not others are based on the relative ease or difficulty of finding salamanders in habitat with those elements. Our Response: Primary constituent elements are those specific elements of the physical or biological features that provide for a species’ life-history processes and are essential to the conservation of the species. See our response to comment 5, above, for an E:\FR\FM\20NOR1.SGM 20NOR1 pmangrum on DSK3VPTVN1PROD with RULES Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations explanation of critical habitat designation requirements under the Act. While the Jemez Mountains salamander can be found in areas outside forested areas and outside coniferous forest in particular, when active above ground, the Jemez Mountains salamander is more commonly found within forested areas under decaying logs, rocks, bark, or moss mats, or inside decaying logs and stumps. Jemez Mountains salamanders are generally found in association with decaying coniferous logs, particularly Douglas fir, considerably more often than deciduous logs, likely due to the differences in physical features (e.g., coniferous logs have blocky pieces with more cracks and spaces than deciduous logs) (Ramotnik 1988, p. 53). See the Criteria Used To Identify Critical Habitat section of this final rule for a complete description of the information used to designate critical habitat. Our initial step in identifying critical habitat was to determine the physical or biological habitat features essential to the conservation of the species. The Service has identified four primary constituent elements sufficient to support the life-history processes and which are essential to the conservation of the species. We then identified the geographic areas that are occupied by the Jemez Mountains salamander and that contain one or more of the physical or biological features. We are designating two critical habitat units based on sufficient elements of the physical or biological features being present to support the Jemez Mountains salamander’s life processes. Some portions of the units contain all of the identified elements of physical or biological features and support multiple life processes. Some portions of units contain only some elements of the physical or biological features necessary to support the Jemez Mountains salamander’s particular use of that habitat. The Service did not place emphasis on one primary constituent element over another. (35) Comment: The proposed rule cited the influence of soil pH in salamander habitat, but ignores it as a primary constituent element. Our Response: Soil pH may be an important variable in salamander habitat; however, data concerning soil pH in Jemez Mountains salamander habitat are limited to nine sites (four logged and five unlogged), seven of which are in relatively close proximity to each other in one drainage on the west side of the Jemez Mountains (Ramotnik 1988, p. 40). Ramotnik (1988, p. 41) reported a significant difference in pH between the logged areas and the VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 unlogged areas where salamanders were found, but it is not known if salamanders were present prior to logging. Consequently, we do not believe these data are sufficient to extrapolate across the range of the species and do not conclude that pH within a certain range is a primary constituent element for the salamander. (36) Comment: Preference of salamander habitat use on steep slopes as reported in Ramotnik (1988) has been dismissed. Our Response: Additional survey information since Ramotnik (1988) indicates that salamanders use habitat on all slopes. Further, Everett (2003) reported that the salamander occurred on all slope aspects (p. 21) (the average slope ranged from 4 to 40.5 degrees (p. 24)). (37) Comment: No evidence is presented that time above ground is necessary for the salamander’s life cycle, but most of the primary constituent elements of critical habitat have to do with above ground components of mixed conifer forests. Our Response: Please see our responses to comments 4, 10, and 34. Additionally, above ground surface activity during wet surface conditions is a characteristic of the natural history of the Jemez Mountains salamander. Stomach contents consist primarily of above-ground and ground-dwelling invertebrates. Further, plethodontid salamanders store fat reserves in their tails for energetic use when foraging opportunities are reduced or do not exist (e.g., underground). Consequently, we conclude that one purpose for above ground activity is to feed. Additionally, based on reproductive studies, this species mates in July and August, which coincides with the above-ground activity period. We, therefore, conclude that time above ground is necessary for foraging and mating. See the Criteria Used To Identify Critical Habitat section of this final rule for a complete description of the information used to designate critical habitat. (38) Comment: One commenter stated that the draft economic analysis should include a section explaining the benefits of having critical habitat for the Jemez Mountains salamander. The commenter also stated that itemized costs would be beneficial to the analysis. Our Response: Chapter 6 of the draft economic analysis discussed benefits of the designation. Chapters 3–5 and Appendix B present detailed information and assumptions used to develop estimates of the anticipated incremental costs of the designation. PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 69577 Changes From the Previously Proposed Critical Habitat Designation In this final critical habitat designation, we are finalizing the minor changes that were proposed in the reopening of the public comment period that published on February 12, 2013 (78 FR 9876). At that time, we amended the PCEs that we proposed in our September 12, 2012 proposed rule (77 FR 56482) to provide additional clarification to the PCEs concerning tree canopy cover and ground surface in forest areas (PCEs 1 and 3a). The overall intent of the proposed PCEs did not change. Additionally, we revised the size of the two proposed critical habitat units from our September 12, 2012, rule, 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 was 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 updated the approximate area and land ownership of both proposed critical habitat units; the updated information is in Table 2 below. The total Federal 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. When we used the updated map information, we identified a 73-ac (30ha) parcel owned by New Mexico Department of Game and Fish in the Western Jemez Mountains Unit. Based on these revisions, we proposed and are now finalizing 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 proposed our September 12, 2012 proposed rule (77 FR 56482). 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. Finally, in the Proposed Regulation Promulgation section of our September 12, 2012 (77 FR 56482), proposed rule we erroneously presented the map as an index map. We have corrected this error in this final rule by presenting the map as the map of Unit 1 and Unit 2. Critical Habitat Background Critical habitat is defined in section 3 of the Act as: E:\FR\FM\20NOR1.SGM 20NOR1 pmangrum on DSK3VPTVN1PROD with RULES 69578 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by nonFederal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act’s definition of critical habitat, areas VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 within the geographical area occupied by the species at the time it was listed, are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species’ lifehistory processes and are essential to the conservation of the species. Under the second prong of the Act’s definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts’ opinions or personal knowledge. Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act’s prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. Physical or Biological Features In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological E:\FR\FM\20NOR1.SGM 20NOR1 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to: (1) Space for individual and population growth and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and (5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species. We derive the specific physical or biological features essential for the Jemez Mountains salamander from studies of this species’ habitat, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the Federal Register on September 12, 2012 (77 FR 56482), and in the information presented below. Additional information can be found in the final listing rule published in the Federal Register on September 10, 2013 (78 FR 55599). We have determined that the Jemez Mountains salamander requires the following physical or biological features: Space for Individual and Population Growth and for Normal Behavior The Jemez Mountains salamander is restricted to areas in the Jemez Mountains around the rim of a large volcanic crater. There are also some Jemez Mountain salamanders that have been found on topographic features (e.g., resurgent domes) on the interior of the crater. The widespread presence of igneous rock throughout the area is the result of the volcanic origins of the Jemez Mountains. It is possible that the salamander may be distributed in this restricted area because of the fractured rock and interstitial crevices and gaps that occur here. The Jemez Mountains salamander has been observed in forested areas of the Jemez Mountains located along two sides of the volcanic crater, ranging in elevation from 6,998 to 10,990 ft (2,133 to 3,350 m) (Ramotnik 1988, pp. 78, 84). The Jemez Mountains salamander spends much of its life underground, but it can be found active above ground from July through September, when environmental conditions are warm and wet. The aboveground habitat occurs within forested areas, primarily within areas that contain Douglas fir (Pseudotsuga menziesii), blue spruce VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 (Picea pungens), Engelman spruce (P. engelmannii), white fir (Abies concolor), limber pine (Pinus flexilis), Ponderosa pine (Pinus ponderosa), Rocky Mountain maple (Acer glabrum), and aspen (Populus tremuloides) (Degenhardt et al. 1996, p. 28; Reagan 1967, p. 17). Redondo Peak contains both the maximum elevation in the Jemez Mountains (11,254 ft (3,430 m)) and the highest salamander observation (10,990 ft (3,350 m)). Surveys have not yet been conducted above this highest observation on Redondo Peak, but the habitat contains those primary constituent elements we have identified from areas known to contain the salamander. Alternatively, the vegetation communities and moisture conditions at elevations below 6,998 ft (2,133 m) are not suitable for the Jemez Mountains salamander. The salamander’s underground habitat appears to be deep, fractured, subsurface igneous rock in areas with high soil moisture (NMEST 2000, p. 2). Subsurface geology and loose rocky soil structure may be an important attribute of underground salamander habitat (Degenhardt et al. 1996, p. 28). Geologic and moisture constraints likely limit the distribution of the species (NMEST 2000, p. 2). Soil pH (acidity or alkalinity) may limit distribution as well. However, the composition of this subterranean habitat has not been fully investigated. Everett (2003) reported that the salamander occurred in areas where soil texture was composed of 56 percent sandy clay loam, 36 percent clay loam, 6 percent sandy loam, and 2 percent silty clay loam (p. 28); the overall soil bulk density ranged from 0.2 to 0.98 ounces per cubic inch (oz per in 3) (0.3 to 1.7 grams per cubic centimeter (g per cm3) (p. 28); and average soil moisture ranged from 4.85 to 59.7 percent (p. 28). Sites with salamanders had a soil pH of 6.6 (± 0.08), and sites without salamanders had a soil pH of 6.2 (± 0.06) (Ramotnik 1988, pp. 24–25). The salamander’s subterranean habitat appears to be deep, fractured, subterranean igneous rock in areas with high soil moisture (New Mexico Endemic Salamander Team 2000, p. 2). Many terrestrial salamander species deposit eggs in well-hidden sites, such as underground cavities, decaying logs, and moist rock crevices (Pentranka 1998, p. 6). Because the Jemez Mountain salamander spends the majority of its life below ground and because Jemez salamander eggs have not been discovered in the wild, Jemez Mountains salamander eggs are probably laid and hatch underground in PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 69579 the fractured interstices of subterranean igneous rock. Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements Jemez Mountains salamanders are terrestrial salamanders that are generally active at night and have diurnal (daytime) retreats to places that have higher moisture content relative to surrounding areas that are exposed to warming from the sun and air currents (Duellman and Trueb 1986, p. 198). Jemez Mountain salamanders lack lungs; instead, they are cutaneous respirators (meaning they exchange gases, such as oxygen and carbon dioxide, through their skin). To support cutaneous respiration, its skin is permeable and must be kept moist at all times. Consequently, Jemez Mountains salamanders must address hydration needs above all other life-history needs. The salamander must obtain its water from its habitat, and the salamander has no physiological mechanism to stop dehydration or water loss to the environment. We suspect that these components may be a main driver behind salamander occurrences and distribution. Diurnal retreats that provide moist and cool microhabitats are important for physiological requirements in terrestrial salamanders and also influence the salamander’s ability to forage, because foraging typically dehydrates individuals and these retreats allow for rehydration (Duellman and Trueb 1986, p. 198). Temperature also affects hydration and dehydration rates, oxygen consumption, heart rate, and metabolic rate, and thus influences body water and body mass in Jemez Mountains salamanders (Duellman and Treub 1986, p. 203; Whitford 1968, pp. 247–251). Daytime retreats can be under rocks, in interiors of logs, in depths of leaf mulch, in shaded crevices, and in burrows in the soil (Duellman and Trueb 1986, p. 198). When Jemez Mountains salamanders have been observed above ground during the day, they are primarily found in high moisture retreats (such as under and inside decaying logs and stumps, and under rocks and bark) (Everett 2003, p. 24) with high overstory canopy cover. Everett (2003, p. 24) characterized the Jemez Mountains salamander’s habitat as having an average canopy cover of 76 percent, with a range between 58 to 94 percent and soil that had average soil moisture from 4.85 to 59.7 percent (p. 28). If water uptake is sufficient during the day, the animal can afford to lose water during nocturnal activities (Duellman and Trueb 1986, p. 198). Even though many kinds of terrestrial E:\FR\FM\20NOR1.SGM 20NOR1 69580 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations amphibians are normally active only at night, they often become active during the day immediately after heavy rains (Duellman and Trueb 1986, p. 198). High moisture diurnal retreats and high canopy closure are typical habitat features that correlate with plethodontid salamanders. For example, the three habitat features with apparently strong associations with the Siskiyou Mountains salamander (Plethodon stormi), a western plethodon species, are rocky soil types with adequate interstitial spaces, forest canopy closure above 70 percent, and conifer forest types with average tree size above 17 in (43.2 cm) diameter at breast height (Olson et al. 2009, p. 24). Another example is that course woody debris is the most important habitat feature for two other plethodontid salamanders in Douglas fir forests in Washington. It was suggested that these two plethodontid salamanders may prefer certain types of woody debris as cover, especially those associated with large, moderately to well-decomposed snags and logs (Aubry et al. 1988, pp. 32, 35). Based on this information, we conclude that substrate moisture through its effect on absorption and loss of water is the most important factor in the ecology of this species (Heatwole and Lim 1961, p. 818). Thus, moist and cool microhabitats are essential for the conservation of the species. In regard to food, Jemez Mountains salamanders have been found to consume prey species that are diverse in size and type, with ants, mites, and beetles being eaten most often (Cummer 2005, p. 43). pmangrum on DSK3VPTVN1PROD with RULES Cover or Shelter When active above ground, the Jemez Mountains salamander is usually found within forested areas under decaying logs, rocks, bark, or moss mats, or inside decaying logs and stumps. Jemez Mountains salamanders are generally found in association with decaying coniferous logs, particularly Douglas fir, considerably more often than deciduous logs, likely due to the differences in physical features (e.g., coniferous logs have blocky pieces with more cracks and spaces than deciduous logs) (Ramotnik 1988, p. 53). Large-diameter (greater than 10 in (25 cm)) decaying logs provide important aboveground habitat because they are moist and cool compared to other cover; larger logs maintain higher moisture and lower temperature longer than smaller logs. These high-moisture retreats also offer shelter and protection from some predators (e.g., skunks (Mephitidae), owls (Strigiformes)). VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 The percent surface area of occupied salamander habitat covered by decaying logs, rocks, bark, moss mats, and stumps averaged 25 percent (Everett 2003, p. 35); however, Everett (2003, p. 35) noted that areas with high percentages of area of habitat covered by decaying logs, rocks, bark, moss mats, and stumps are difficult to survey and locate salamanders when present, and may bias the data toward lower percentages of area covered by decaying logs, rocks, bark, moss mats, and stumps. Furthermore, there may be highelevation meadows located within the critical habitat units that are used by the Jemez Mountains salamander. Jemez Mountains salamanders utilize habitat vertically and horizontally above ground and below ground. Currently, we do not fully understand how salamanders utilize areas like meadows, where the aboveground vegetation component differs from areas where salamanders are more commonly encountered (e.g., forested areas); however, salamanders have been found in high-elevation meadows. Therefore, meadows are considered part of the physical or biological features for the Jemez Mountains salamander. Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring Little is known about the reproduction of the Jemez Mountains salamander. Although many terrestrial salamanders deposit eggs in wellhidden sites, such as underground cavities, decaying logs, and moist rock crevices (Pentranka 1998, p. 6), an egg clutch has never been observed during extensive Jemez Mountains salamander surveys. Because the salamander spends the majority of its life below ground, eggs are probably laid and hatch underground. However, we currently lack the information to identify the specific elements of the physical or biological features needed for breeding, reproduction, or rearing of offspring. Habitats Protected From Disturbance or Representative of the Historical, Geographic, and Ecological Distributions of the Species All occupied salamander habitat has undergone change resulting from historical grazing practices and effective fire suppression, most often resulting in shifts in vegetation composition and structure and increased risk of largescale, stand-replacing wildfire (see Factor A discussion in the final listing rule published on September 10, 2013 (78 FR 55599)). This species was first described in 1950, about halfway through the approximate 100-year period of shifting vegetation PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 composition and structure and building of fuels for wildfire in the Jemez Mountains. Thus, research and information pertaining to habitat for this species occurs in the context of a species existing in an altered ecological situation. Nonetheless, while we do not have a full understanding of how these particular alterations affect the salamander (potentially further drying habitat through increased water demand of increased density of trees, or, alternatively, potentially increasing habitat moisture from a higher canopy cover), we do know that the changes in the vegetative component of salamander habitat have greatly increased the risk of large-scale, stand-replacing wildfire. Furthermore, we are only aware of small-scale treatments or forestrestoration projects that have been implemented to reduce this risk. Thus, there do not seem to be any areas in occupied salamander habitat that are entirely protected from disturbance. Even so, the representative geographic and ecological habitat includes salamander habitat in both burned and unburned areas. Although areas not burned by large-scale, stand-replacing fires are better habitat, the Jemez Mountains salamander has still been found in recently burned habitat (12 years post-fire in the Cerro Grande fire). Primary Constituent Elements for the Jemez Mountains Salamander Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the Jemez Mountains salamander in areas occupied at the time of listing, focusing on the features’ primary constituent elements. Primary constituent elements are those specific elements of the physical or biological features that provide for a species’ life-history processes and are essential to the conservation of the species. Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species’ life-history processes, we determine that the primary constituent elements specific to 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 E:\FR\FM\20NOR1.SGM 20NOR1 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES 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 spp.); or shrubby oaks (Quercus spp.). (2) Elevations from 6,988 to 11,254 ft (2,130 to 3,430 m). (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 in (25 cm) 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. With this designation of critical habitat, we intend to identify the physical or biological features essential to the conservation of the species, through the identification of the features’ primary constituent elements sufficient to support the life-history processes of the species. Special Management Considerations or Protections When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of this species may require special management considerations or protection to reduce the following threats: Historical and current fire management practices; severe wildland fire; forest composition and structure conversions; post-fire rehabilitation; forest management; roads, trails, and habitat fragmentation; recreation; and climate change. Furthermore, disease and the use of fire retardants or other chemicals may threaten the salamander in the future, and may need special management considerations. Amphibians, like the salamander, are typically very susceptible to chemicals (LABAT Environmental 2007) due to their permeable skin. However, at this VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 time, the Service does not consider disease or chemical use a threat. A more complete discussion of the threats to the salamander and its habitats can be found in Summary of Factors Affecting the Species section of the final listing rule published on September 10, 2013 (78 FR 55599). Management activities that could ameliorate these threats include (but are not limited to): (1) Reducing fuels to minimize the risk of severe wildfire in a manner that considers the salamander’s biological requirements; (2) not implementing post-fire rehabilitation techniques that are detrimental to the salamander in the geographic areas of occupied salamander habitat; and (3) removing unused roads and trails, and restoring habitat. A more complete discussion of the threats to the salamander and its habitats can be found in Summary of Factors Affecting the Species section of the final listing rule published on September 10, 2013 (78 FR 55599). Criteria Used To Identify Critical Habitat As required by section 4(b)(2) of the Act, we used the best scientific data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of this species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we considered whether designating additional areas outside those currently occupied is necessary to ensure the conservation of the species. We are not designating any areas outside the geographic area occupied by the species because the designated areas can support populations large enough to provide for the conservation of the species. Our initial step in identifying critical habitat was to determine the physical or biological habitat features essential to the conservation of the species, as explained in the previous section. We then identified the geographic areas that contain one or more of the physical or biological features. We also considered information on salamander locations from recent surveys. We used various sources of available information and supporting data that pertain to the habitat requirements of the Jemez Mountains salamander. These included, but were not limited to, the 12–month finding published on September 9, 2010 (75 FR 54822); reports under section 6 of the Act submitted by New Mexico Department of Game and Fish that provided information regarding biology, survey data, and habitat; the MultiAgency (New Mexico Department of Game and Fish, USFS, and NPS) Jemez PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 69581 Mountains Salamander Conservation Management Plan that provides information on salamander habitat and biology; research published in peerreviewed articles concerning the biology, habitat, and ecology of Jemez Mountains salamanders and other plethodontid species; unpublished academic theses that provided information regarding location, habitat, ecology, physiology, and ecological shifts of Jemez Mountains salamander; agency reports from USFS, NPS, and Los Alamos National Lab; and Bureau of Land Management mapping information. We plotted point data of survey locations for the salamander using ArcMap (Environmental Systems Research Institute, Inc.), a computer GIS program, which were then used in conjunction with elevation, topography, vegetation, and land ownership information. The point data consisted of detection (367 points) and nondetection (1,022 points) survey locations. The designated critical habitat units are based on the detection and non-detection data, and physical and biological data on habitat features necessary to support life-history processes of the species. These areas were all located within the unit boundaries generated by the GIS model. Areas that have been burned in recent fires (e.g., Las Conchas Fire and Cerro Grande Fire) were not excluded from the units because fire burns in a mosaic pattern (a mix pattern of burned and unburned patches), and sufficient elements of physical and biological features remain subsequent to wildfire that allow salamanders to continuously occupy areas that have been burned. We selected areas within the geographical area occupied at the time of listing that contain the physical or biological features essential to their conservation. We also verified that these areas required special management. Large areas with very limited or no detections were not included in the designation. Finally, both units are considered wholly occupied because salamanders use both aboveground and belowground habitat, moving and utilizing habitat vertically and horizontally. Also, highelevation meadows located within the units are also considered wholly occupied because the salamanders have been found there. While it is possible that salamanders may not be detected at the small scale of a survey (measured in meters), the entire unit is considered with the geographic area occupied by the species because of the similarity and continuous nature of the physical and biological features such as dense tree E:\FR\FM\20NOR1.SGM 20NOR1 69582 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations canopy cover, higher levels of ground moisture, many fallen logs, surface rocks and woody debris, and igneous soil that allows the salamanders to travel below ground as well as above ground. This is due to the fact that the lands within the units are virtually all high-elevation forests growing on top of igneous soil located around the rim of a long extinct volcano. Recent surveys of Jemez Mountains salamanders conducted by the USFS found Jemez Mountain salamanders in a specific area where the salamander had not been located before, but was within the area we are designating as critical habitat. This demonstrates the occupancy of the areas we have designated as critical habitat. After utilizing the above methods, we refined the model to exclude areas of isolated historical survey point data, which are predominantly on USFS and Valles Caldera National Preserve lands within the northeastern and northwestern part of the Jemez Mountains, but also include small areas on the Santa Clara Pueblo, Los Alamos National Laboratory, and private lands. The areas we are designating are not located within developed lands. They contain very few buildings, but do include several highways and forest roads. When determining critical habitat boundaries within this final rule, we made every effort to avoid including lands covered by buildings, pavement, and other structures because such lands lack physical or biological features for the Jemez Mountains salamander. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such buildings and roads. Any such lands inadvertently left inside critical habitat boundaries shown on the map of this final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat. The critical habitat designation is defined by the map, as modified by any accompanying regulatory text, presented at the end of this document in the Regulation Promulgation section. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which the map is based available to the public on http://www.regulations.gov at Docket No. FWS–R2–ES–2013–0005, on our Internet site at http://www.fws.gov/ southwest/es/NewMexico/, and at the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). We are designating as critical habitat lands that we have determined are occupied at the time of listing and contain sufficient physical or biological features to support life-history processes essential for the conservation of the Jemez Mountains salamander. We are designating two units based on sufficient elements of physical or biological features being present to support the Jemez Mountains salamander’s life processes. Some portions of the units contain all of the identified elements of physical or biological features and support multiple life processes. Some portions of units contain only some elements of the physical or biological features necessary to support the Jemez Mountains salamander’s particular use of that habitat. Final Critical Habitat Designation We are designating two units as critical habitat for the Jemez Mountains salamander. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat. Those two units are: (1) Western Jemez Mountains Unit, and (2) Southeastern Jemez Mountains Unit. Table 1 shows the occupied units. TABLE 1—OCCUPANCY OF JEMEZ MOUNTAINS SALAMANDER BY DESIGNATED CRITICAL HABITAT UNITS Unit Occupied at time of listing? 1 ............. 2 ............. Yes .................. Yes .................. Currently occupied? Yes. Yes. The approximate area of each critical habitat unit is shown in Table 2. TABLE 2—DESIGNATED CRITICAL HABITAT UNITS FOR JEMEZ MOUNTAINS SALAMANDER [Area estimates reflect all land within critical habitat unit boundaries] Land ownership by type Critical habitat 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 .................................................................................... pmangrum on DSK3VPTVN1PROD with RULES 1. Western Jemez Mountains Unit ..................................... Size of unit in acres (hectares) 90,716 (36,711) Note: Area sizes may not sum due to rounding. definition of critical habitat for the Jemez Mountains salamander, below. We present brief descriptions of all units, and reasons why they meet the VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 Unit 1: Western Jemez Mountains Unit 1 consists of 42,445 ac (17,177 ha) in Rio Arriba and Sandoval Counties, New Mexico, in the western portion of the Jemez Mountains. In Unit E:\FR\FM\20NOR1.SGM 20NOR1 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations 1, 41,466 ac (16,781 ha) are federally managed, with 26,531 ac (10,736 ha) on USFS lands and 14,935 ac (6,044 ha) on Valles Caldera National Preserve lands; 73 ac (30 ha) are New Mexico Department of Game and Fish lands; and 906 ac (367 ha) are private lands. This unit is located in the western portion of the distribution of the Jemez Mountains salamander and includes Redondo Peak. This unit is within the geographical area occupied by the salamander and contains elements of essential physical or biological features. The physical or biological features require special management or protection from large-scale, standreplacing wildfire; actions that would disturb salamander habitat by warming and drying; actions that reduce the availability of aboveground cover objects including downed logs; or actions that would compact or disturb the soil or otherwise interfere with the capacity of salamanders to move between subterranean habitat and aboveground habitat. Unit 2: Southeastern Jemez Mountains Unit 2 consists of 48,271 ac (19,535 ha) in Los Alamos and Sandoval Counties, New Mexico, in the eastern, southern, and southeastern portions of the Jemez Mountains. In Unit 2, 46,375 ac (18,767 ha) are federally managed, with 30,366 ac (12,288 ha) on USFS lands, 8,811 ac (3,565 ha) on Valles Caldera National Preserve lands, and 7,198 ac (2,912 ha) on National Park Service lands (Bandelier National Monument). The remaining 1,897 ac (768 ha) in Unit 2 are private lands. This unit is within the geographical area occupied by the salamander and contains elements of essential physical or biological features. The physical or biological features require special management or protection from largescale, stand-replacing wildfire; actions that would disturb salamander habitat by warming and drying; actions that reduce the availability of aboveground cover objects including downed logs; or actions that would compact or disturb the soil or otherwise interfere with the capacity of salamanders to move between subterranean habitat and aboveground habitat. pmangrum on DSK3VPTVN1PROD with RULES Effects of Critical Habitat Designation Section 7 Consultation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species listed under the Act or result in the destruction or adverse modification of critical habitat. Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of ‘‘destruction or adverse modification’’ (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation. As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of: (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 69583 adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define ‘‘reasonable and prudent alternatives’’ (at 50 CFR 402.02) as alternative actions identified during consultation that: (1) Can be implemented in a manner consistent with the intended purpose of the action, (2) Can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, (3) Are economically and technologically feasible, and (4) Would, in the Director’s opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency’s discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat. Application of the ‘‘Adverse Modification’’ Standard The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of critical habitat for the Jemez Mountains salamander. As discussed above, the role of critical habitat is to support life-history needs of the species E:\FR\FM\20NOR1.SGM 20NOR1 pmangrum on DSK3VPTVN1PROD with RULES 69584 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations and provide for the conservation of the species. Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Jemez Mountains salamander. These activities include, but are not limited to: (1) Actions that would disturb salamander habitat by warming and drying. Such activities could include, but are not limited to, landscape restoration projects (e.g., forest thinning and manipulation); prescribed burns; wildland fire use; wildland-urbaninterface projects (forest management at the boundary of forested areas and urban areas); forest silvicultural practices (including salvage logging); or other forest management or landscapealtering activities that reduce canopy cover, or warm and dry habitat. These activities could reduce the quality of salamander habitat or reduce the ability of the salamander to carry out normal behavior and physiological functions, which are tightly tied to moist cool microhabitats. Additionally, these actions could also reduce available high-moisture retreats, which could increase the amount of time necessary to regulate body water for physiological function and thus reduce the amount of time available for foraging and finding a mate, ultimately reducing fecundity. (2) Actions that reduce the availability of the ground surface within forested areas containing downed logs that are greater than 10 in (0.25 m) in diameter and of any stage of decomposition; or removal of large-diameter trees (especially Douglas fir) that would otherwise become future high quality cover. Such activities could include, but are not limited to, the activities listed in (1), above. Aboveground cover objects within the forest provide high-moisture retreats relative to surrounding habitat and offer opportunities to regulate body water and influence the salamander’s capacity to forage and reproduce. (3) Actions that would compact or disturb the soil or otherwise interfere with the capacity of salamanders to move between subterranean habitat and aboveground habitat. Such activities could include, but are not limited to, use of heavy equipment, road construction, and pipeline installation. (4) Actions that spread disease into salamander habitat. Such activities VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 could include water drops (i.e., picking up surface water contaminated with aquatic amphibian pathogens (e.g., Batrachochytrium dendrobatidis (Bd)) and dropping it in forested habitat). While we do not know the susceptibility of amphibian pathogens on the Jemez Mountains salamander, some pathogens (e.g., Bd) have caused many other amphibian species extinctions and declines and could potentially threaten the Jemez Mountains salamander. (5) Actions that contaminate forested habitats with chemicals. Such activities could include aerial drop of chemicals such as fire retardants or insecticides. Amphibians in general are sensitive to chemicals with which they come in contact because they use their skin for breathing and other physiological functions. We would need to consult to identify if the particular chemicals proposed for use in the action impacted the species. Exemptions Application of Section 4(a)(3) of the Act Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: ‘‘The Secretary shall not designate as critical habitat any lands or other geographic areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is designated.’’ There are no Department of Defense lands with a completed INRMP within the critical habitat designation. Exclusions Application of Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat based on economic impacts, impacts on national security, or any other relevant impacts if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. Exclusions Based on Economic Impacts Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared a draft economic analysis of the proposed critical habitat designation and related factors (IEc 2013). The draft analysis, dated February 8, 2013, was made available for public review from February 12, 2013, through March 14, 2013 (78 FR 9876). Following the close of the comment period, a final analysis (dated April 22, 2013) of the potential economic effects of the designation was developed taking into consideration the public comments we received and any new information (IEc 2013, entire). The intent of the final economic analysis (FEA) is to quantify 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 (baseline). The economic impact of the final 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 consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur with the designation of critical habitat. The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat E:\FR\FM\20NOR1.SGM 20NOR1 pmangrum on DSK3VPTVN1PROD with RULES Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The FEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on water management and transportation projects, Federal lands, small entities, and the energy industry. Decisionmakers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the FEA considers costs that may occur in the 20 years following the designation of critical habitat, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to forecast activity levels for projects beyond a 20–year timeframe. The FEA quantifies economic impacts of Jemez Mountains salamander conservation efforts associated with the following categories of activity: 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. Key findings of the FEA include: total present value baseline costs are approximately $26 million over 20 years following the designation, assuming a 7 percent discount rate ($29 million assuming a 3 percent discount rate); 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 the consideration of adverse modification in section 7 consultations; both units are expected to experience similar levels of incremental impact; and 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. Our economic analysis did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary is not exerting his discretion to exclude any areas from this designation of critical habitat for the Jemez Mountains salamander based on economic impacts. A copy of the FEA with supporting documents may be obtained by contacting the New Mexico Ecological Services Field Office (see ADDRESSES) or by downloading from the Internet at VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 http://www.regulations.gov, or the Service’s Internet site at http:// www.fws.gov/southwest/es/NewMexico. Exclusions Based on National Security Impacts Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this final rule, we have determined that the lands within the designation of critical habitat for the Jemez Mountains salamander are not owned or managed by the Department of Defense, and, therefore, we anticipate no impact on national security. We considered excluding Los Alamos National Lab, which is under the Department of Energy. However, we have determined that lands within the designation of critical habitat are not owned or managed by the Los Alamos National Lab. Consequently, the Secretary is not exerting her discretion to exclude any areas from this final designation based on impacts on national security. Exclusions Based on Other Relevant Impacts Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-togovernment relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation. In preparing this final rule, we have determined that there are currently no HCPs or other management plans for the Jemez Mountains salamander, and the final designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this critical habitat designation. We also considered impacts on private lands, but we do not predict any impacts to designated critical habitat, over and above those related to jeopardy consultation. Further, we do not anticipate restricting any fire suppression or forest restoration. Accordingly, the Secretary is not exercising her discretion to exclude any areas from this final designation based on other relevant impacts. PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 69585 Required Determinations Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. 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 (SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must 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 (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an 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. In this final rule, we are certifying that the critical habitat designation for the Jemez Mountains salamander will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale. According to the Small Business Administration, small entities include small organizations, such as E:\FR\FM\20NOR1.SGM 20NOR1 pmangrum on DSK3VPTVN1PROD with RULES 69586 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; as well as small businesses. 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 on these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule, as well as the 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 rule could significantly affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities such as fire management, private development, transportation, and livestock grazing. We apply the ‘‘substantial number’’ test individually to each industry to determine if certification is appropriate. However, the SBREFA does not explicitly define ‘‘substantial number’’ or ‘‘significant economic impact.’’ Consequently, to assess whether a ‘‘substantial number’’ of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the number of small entities potentially affected, we also consider whether their activities have any Federal involvement. Designation of critical habitat will only affect activities that have a 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. Some kinds of activities are unlikely to have any Federal involvement and so VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they authorize, fund, or carry out that may affect the Jemez Mountains salamander. Federal agencies also must consult with us if their activities may affect critical habitat. Designation of critical habitat, therefore, could result in an additional economic impact on small entities due to the requirement to reinitiate consultation for ongoing Federal activities (see Application of the ‘‘Adverse Modification’’ Standard section). In our final economic analysis of the critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of the Jemez Mountains salamander and the designation of critical habitat. The designation of critical habitat for the Jemez Mountains salamander is unlikely to directly affect any small entities. As described in the main text of the FEA, 97 percent of land in the designation is federally owned. Anticipated incremental impacts in critical habitat are primarily related to 37 formal consultations and 45 informal 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, this analysis finds little to no impacts to small entities as a result of critical habitat designation for the salamander. In summary, we considered whether this designation will result in a significant economic effect on a substantial number of small entities. Based on the above reasoning and currently available information, we concluded that this rule will not result in a significant economic impact on a substantial number of small entities. Therefore, we are certifying that the designation of critical habitat for the Jemez Mountains salamander will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required. Energy Supply, Distribution, or Use— Executive Order 13211 Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute ‘‘a significant adverse effect’’ when compared to not taking the regulatory action under consideration. The economic analysis finds that none of these criteria are relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with the Jemez Mountains salamander conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings: (1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both ‘‘Federal intergovernmental mandates’’ and ‘‘Federal private sector mandates.’’ These terms are defined in 2 U.S.C. 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon State, local, or tribal governments’’ with two exceptions. It excludes ‘‘a condition of Federal assistance.’’ It also excludes ‘‘a duty arising from participation in a voluntary Federal program,’’ unless the regulation ‘‘relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,’’ if the provision would ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding,’’ and the State, local, or tribal governments ‘‘lack authority’’ to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support E:\FR\FM\20NOR1.SGM 20NOR1 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES Enforcement. ‘‘Federal private sector mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.’’ The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While nonFederal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments. (2) We do not believe that this rule will significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a ‘‘significant regulatory action’’ under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments and, as such, a Small Government Agency Plan is not required. Takings—Executive Order 12630 In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for Jemez Mountains salamander in a takings implications assessment. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding, assistance, or require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. The FEA found that this designation will not affect a substantial number of small VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 entities, because 97 percent of land in the designation is federally owned. Further, based on information contained in the FEA and described within this document, it is not likely that economic impacts to a property owner will be of a sufficient magnitude to support a takings action. The takings implications assessment concludes that this designation of critical habitat for the Jemez Mountains salamander does not pose significant takings implications for lands within or affected by the designation. Federalism—Executive Order 13132 In accordance with Executive Order 13132 (Federalism), this rule does not have significant Federalism effects. A federalism impact summary statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this critical habitat designation with appropriate State resource agencies in New Mexico. We received comments from the New Mexico Department of Agriculture and have addressed them in the Summary of Comments and Recommendations section of this rule. The Service anticipates that in cases where an action is found to adversely modify critical habitat for the salamander, the action would also be found to jeopardize the species. That is, actions which the Service is likely to recommend to avoid adverse modification are the same as those to avoid jeopardy. Thus, the incremental impacts of the critical habitat designation for the salamander appear unlikely to include additional conservation actions/project modifications. The designation of critical habitat in areas currently occupied by the Jemez Mountains salamander imposes no additional restrictions to those put in place by the listing of the salamander and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments in that the areas that contain the physical or biological features essential to the conservation of the species are more clearly defined, and the elements of the features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for caseby-case section 7 consultations to occur). PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 69587 Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) will be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Civil Justice Reform—Executive Order 12988 In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the applicable standards set forth in sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of physical or biological features essential to the conservation of the Jemez Mountains salamander. The designated areas of critical habitat are presented on a map, and the rule provides several options for the interested public to obtain more detailed location information, if desired. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act (42 U.S.C. 4321 et seq.) 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 pursuant to the National Environmental Policy Act (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 E:\FR\FM\20NOR1.SGM 20NOR1 69588 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations 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 undertake a NEPA analysis for critical habitat designation and notify the public of the availability of the draft environmental assessment for a proposal when it is finished. We performed the NEPA analysis, and prepared a draft environmental assessment for critical habitat designation and notified the public of its availability in the Federal Register on February 12, 2013 (78 FR 9876). The final environmental assessment concluded that the designation is unlikely to result in any significant environmental impacts. The Service then completed a finding of no significant impacts (FONSI). The final environmental assessment and the FONSI have been completed and are available for review with the publication of this final rule. You may obtain a copy of the final environmental assessment and FONSI online at http://www.regulations.gov, by mail from the New Mexico Ecological Services Field Office (see ADDRESSES), or by visiting our Web site at http:// www.fws.gov/southwest/es/NewMexico/ index.cfm. Government-to-Government Relationship With Tribes In accordance with the President’s memorandum of April 29, 1994 (Government-to-Government Relations With Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior’s manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We determined that there are no tribal lands occupied by the Jemez Mountains salamander at the time of listing that contain the physical or biological features essential to conservation of the species, and no tribal lands unoccupied by the Jemez Mountains salamander that are essential for the conservation of the species. Therefore, we are not designating critical habitat for the Jemez Mountains salamander on tribal lands. However, this critical habitat designation includes lands within the Santa Fe National Forest and Valles Caldera National Preserve that are adjacent to the Santa Clara Pueblo. These lands include culturally important areas for the Santa Clara Pueblo and have unhealthy, unburned forest conditions that make them a continued, immediate threat to catastrophic wildfire spreading onto Santa Clara Pueblo lands (Santa Clara Pueblo 2013). Therefore, the Santa Clara Pueblo has entered in discussions with the USFS, pursuant to the Tribal Forest Protection Act, to co-manage stewardship projects on these lands, including hazardous fuels reduction and ensuring there are proper fuel breaks to protect remnant unburned areas on Santa Clara Pueblo lands from fires coming off National Forest lands. Consultations with Santa Fe National Forest on fire management activities proposed on Pueblo-adjacent lands Species pmangrum on DSK3VPTVN1PROD with RULES * AMPHIBIANS * Salamander, Jemez Mountains. * * * Plethodon neomexicanus. * U.S. (NM) ............... * * 3. In § 17.95, amend paragraph (d) by adding an entry for ‘‘Jemez Mountains ■ VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 Authors The primary authors of this rulemaking are the staff members of the New Mexico Ecological Services Field Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Regulation Promulgation Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 1531– 1544; 4201–4245, unless otherwise noted. 2. Amend § 17.11(h) by revising the entry for ‘‘Salamander, Jemez Mountains’’ under ‘‘AMPHIBIANS’’ in the List of Endangered and Threatened Wildlife to read as follows: ■ § 17.11 Endangered and threatened wildlife. * * * (h) * * * * Status * * E * 819 * * * Entire ...................... * Frm 00054 * * Salamander (Plethodon neomexicanus),’’ in the same PO 00000 A complete list of all references cited is available on the Internet at http:// www.fws.gov/southwest/es/NewMexico/ index.cfm, at http:// www.regulations.gov at Docket No. FWS–R2–ES–2013–0005, and upon request from the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). * Scientific name * References Cited Vertebrate population where endangered or threatened Historic range Common name pursuant to the Tribal Forest Protection Act will be conducted in accordance with the Service’s responsibilities as outlined in Secretarial Order 3206. Fmt 4700 Sfmt 4700 When listed Critical habitat Special rules * * 17.95(d) NA * alphabetical order that the species E:\FR\FM\20NOR1.SGM 20NOR1 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations appears in the table at § 17.11(h), to read as follows: § 17.95 Critical habitat—fish and wildlife. * * * * (d) Amphibians. * * * * * * Jemez Mountains Salamander (Plethodon neomexicanus) pmangrum on DSK3VPTVN1PROD with RULES (1) Critical habitat units are depicted for Los Alamos, Rio Arriba, and Sandoval Counties, New Mexico, on the maps below. (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 VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 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 spp.); 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 (C) Burrows of rodents or large invertebrates. (3) Critical habitat does not include manmade structures (such as buildings, PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 69589 aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on December 20, 2013. (4) Critical habitat map units. Data layers defining map units were created using digital elevation models, GAP landcover data, salamander observation data, salamander habitat suitability models, and were then mapped using the USA Contiguous Albers Equal Area Conic USGS version projection. The map in this entry, as modified by any accompanying regulatory text, establishes the boundaries of the critical habitat designation. The coordinates or plot points or both on which the map is based are available to the public at the Service’s internet site at http:// www.fws.gov/southwest/es/ NewMexico/, at http:// www.regulations.gov at Docket No. FWS–R2–ES–2013–0005, and at the New Mexico Ecological Services Field Office. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2. (5) Unit 1: Western Jemez Mountains, Rio Arriba and Sandoval Counties, New Mexico. Map of Units 1 and 2 follows: E:\FR\FM\20NOR1.SGM 20NOR1 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations VerDate Mar<15>2010 13:56 Nov 19, 2013 Jkt 232001 PO 00000 Frm 00056 Fmt 4700 Sfmt 9990 E:\FR\FM\20NOR1.SGM 20NOR1 ER20NO13.000</GPH> pmangrum on DSK3VPTVN1PROD with RULES 69590 69591 Federal Register / Vol. 78, No. 224 / Wednesday, November 20, 2013 / Rules and Regulations (6) Unit 2: Southeastern Jemez Mountains, Los Alamos and Sandoval Counties, New Mexico. Map of Unit 2 is provided at paragraph (5) of this entry. * * * * * Dated: November 5, 2013. Rachel Jacobson, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2013–27736 Filed 11–19–13; 8:45 am] BILLING CODE 4310–55–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 121018563–3148–02] RIN 0648–XC985 Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Halibut and Crab Prohibited Species Catch Allowances in the Bering Sea and Aleutian Islands Management Area National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; reallocation. AGENCY: NMFS is reallocating the projected unused amounts of the 2013 halibut and crab prohibited species catch (PSC) allowances from the Bering Sea and Aleutian Islands trawl (BSAI) limited access sector to the Amendment 80 cooperatives in the BSAI management area. This action is necessary to allow the Amendment 80 cooperatives to fully harvest their 2013 groundfish allocations. DATES: Effective November 15, 2013, through 2400 hrs, Alaska local time (A.l.t.), December 31, 2013. FOR FURTHER INFORMATION CONTACT: Steve Whitney, 907–586–7269. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. The Administrator, Alaska Region, NMFS, has determined that 140 metric tons of halibut PSC, 20,000 crabs of Zone 1 red king crab PSC, 300,000 crabs of Zone 1 C. bairdi tanner crab PSC, SUMMARY: 900,000 crabs of Zone 2 C. bairdi tanner crab PSC, and 2,400,000 crabs of C. opilio Bycatch Limitation Zone (COBLZ) C. opilio tanner crab PSC from the BSAI trawl limited access sector will not be needed to support BSAI trawl limited access fisheries. Therefore, in accordance with § 679.91(f)(4) and (5), NMFS is reallocating these halibut and crab PSC amounts from the BSAI trawl limited access sector to the Amendment 80 cooperatives in the BSAI. In accordance with § 679.91(f)(1), NMFS will reissue cooperative quota permits for the reallocated halibut and crab PSC following the procedures set forth in § 679.91(f)(4) and § 679.91(f)(5). In accordance with § 679.91(f)(4)(i), NMFS will reallocate 95 percent of the halibut PSC reallocated from the BSAI trawl limited access sector to the Amendment 80 cooperatives, which is 133 metric tons. In accordance with the formula set forth in § 679.91(f)(5), NMFS will reallocate 3,620,000 crab PSC from the BSAI trawl limited access sector to the Amendment 80 cooperatives. The 2013 harvest specifications for halibut and crab PSC allowances included in the final 2013 and 2014 harvest specifications for crab in the BSAI (78 FR 13813, March 1, 2013) are revised as follows in Tables 10, 12, and 14: TABLE 10—FINAL 2013 APPORTIONMENT OF PROHIBITED SPECIES CATCH ALLOWANCES TO NON-TRAWL GEAR, THE CDQ PROGRAM, AMENDMENT 80, AND THE BSAI TRAWL LIMITED ACCESS SECTORS PSC species and area 1 Total non-trawl PSC Halibut mortality (mt) BSAI ............................. Herring (mt) BSAI ............ Red king crab (animals) Zone 1 .......................... C. opilio (animals) COBLZ C. bairdi crab (animals) Zone 1 .......................... C. bairdi crab (animals) Zone 2 .......................... Non-trawl PSC remaining after CDQ PSQ 2 Trawl PSC remaining after CDQ PSQ 2 Total trawl PSC CDQ PSQ reserve 2 Amendment 80 sector 3 BSAI trawl limited access fishery 900 n/a 832 n/a 3,675 2,648 3,349 n/a 393 n/a 2,458 n/a 735 n/a n/a n/a n/a n/a 97,000 10,501,333 86,621 9,377,690 10,379 1,123,643 63,293 7,009,135 6,489 613,990 n/a n/a 980,000 875,140 104,860 668,521 111,228 n/a n/a 2,970,000 2,652,210 317,790 1,527,778 341,500 1 Refer to § 679.2 for definitions of zones. 679.21(e)(3)(i)(A)(2) allocates 326 mt of the trawl halibut mortality limit and § 679.21(e)(4)(i)(A) allocates 7.5 percent, or 67 mt, of the non-trawl halibut mortality limit as the PSQ reserve for use by the groundfish CDQ program. The PSQ reserve for crab species is 10.7 percent of each crab PSC limit. 3 The Amendment 80 program reduced apportionment of the trawl PSC limits by 150 mt for halibut mortality and 20 percent for crab. These reductions are not apportioned to other gear types or sectors. Note: Sector apportionments may not total precisely due to rounding. pmangrum on DSK3VPTVN1PROD with RULES 2 Section TABLE 12–FINAL 2013 PROHIBITED SPECIES BYCATCH ALLOWANCES FOR THE BSAI TRAWL LIMITED ACCESS SECTOR Prohibited species and area 1 BSAI trawl limited access fisheries Halibut mortality (mt) BSAI Yellowfin sole ................................................... VerDate Mar<15>2010 17:16 Nov 19, 2013 Jkt 232001 PO 00000 Red king crab (animals) Zone 1 167 Frm 00057 Fmt 4700 C. opilio (animals) COBLZ 3,338 Sfmt 4700 C. bairdi (animals) Zone 1 440,175 E:\FR\FM\20NOR1.SGM 46,228 20NOR1 Zone 2 285,500

Agencies

[Federal Register Volume 78, Number 224 (Wednesday, November 20, 2013)]
[Rules and Regulations]
[Pages 69569-69591]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-27736]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0005: 4500030113]
RIN 1018-AZ28


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical 
habitat for the Jemez Mountains salamander (Plethodon neomexicanus) 
under the Endangered Species Act of 1973 (Act), as amended. In total, 
we are designating as critical habitat for this species approximately 
90,716 acres (36,711 hectares) in Los Alamos, Rio Arriba, and Sandoval 
Counties, New Mexico. The effect of this regulation is to conserve the 
Jemez Mountains salamander's habitat under the Act.

DATES: This rule is effective on December 20, 2013.

ADDRESSES: This final rule is available on the Internet at http://www.fws.gov/southwest/es/NewMexico/index.cfm and at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0005. Comments and 
materials we received, as well as supporting documentation used in 
preparing this final rule, are available for public inspection, by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, New Mexico Ecological Services Field Office, 2105 
Osuna NE., Albuquerque, NM 87113; telephone 505-346-2525; or facsimile 
505-346-2542.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.fws.gov/southwest/es/NewMexico/index.cfm, at http://www.regulations.gov at Docket No. 
FWS-R2-ES-2013-0005, and at the New Mexico Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or 
supporting information that we developed for this critical habitat 
designation are also available at the Fish and Wildlife Service Web 
site and Field Office set out above, and may also be included in the 
preamble of this rule or at http://www.regulations.gov.

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. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act 
(Act), any species that is determined to be an endangered or threatened 
species requires critical habitat to be designated, to the maximum 
extent prudent and determinable. Designations and revisions of critical 
habitat can only be completed by issuing a rule.
    We listed the Jemez Mountains salamander as an endangered species 
on September 10, 2013 (78 FR 55599). This is a final rule to designate 
critical habitat for the Jemez Mountains salamander. Section 4(b)(2) of 
the Act states that the Secretary shall designate critical habitat on 
the basis of the best available scientific data after taking into 
consideration the economic impact, national security impact, and any 
other relevant impact of specifying any particular area as critical 
habitat.
    The critical habitat areas we are designating in this rule 
constitute our

[[Page 69570]]

current best assessment of the areas that meet the definition of 
critical habitat for the Jemez Mountains salamander. We are designating 
as critical habitat for the species approximately 90,716 acres (36,711 
hectares) in Los Alamos, Rio Arriba, and Sandoval Counties, New Mexico.
    We have prepared economic and environmental analyses of the 
designation of critical habitat. In order to consider economic impacts, 
we have prepared an analysis of the economic impacts of the critical 
habitat designation and related factors. We also prepared an 
environmental analysis of the designation of critical habitat in order 
to evaluate whether there would be any significant environmental 
impacts as a result of the critical habitat designation. We announced 
the availability of the draft economic analysis and the draft 
environmental assessment in the Federal Register on February 12, 2013 
(78 FR 9876), allowing the public to provide comments on our analyses. 
We have incorporated the comments and have completed the final economic 
analysis and final environmental analysis for this final designation.
    Peer review and public comment. We sought comments from seven 
independent specialists to ensure that our designation is based on 
scientifically sound data and analyses. We obtained opinions from three 
of the seven knowledgeable individuals with scientific expertise to 
review our technical assumptions and analysis, and to determine whether 
or not we had used the best available scientific information. These 
peer reviewers generally concurred with our methods and conclusions, 
and they provided additional information, clarifications, and 
suggestions to improve this final rule. Information we received from 
peer review is incorporated in this final revised designation. We also 
considered all comments and information we received from the public 
during the comment period.

Previous Federal Actions

    These actions are described in the Previous Federal Actions section 
of the final listing rule published on September 10, 2013 (78 FR 
55599).

Background

    The Jemez Mountains salamander is restricted to the Jemez Mountains 
in northern New Mexico, in Los Alamos, Rio Arriba, and Sandoval 
Counties, around the rim of the collapsed caldera (large volcanic 
crater), with some occurrences on topographic features (e.g., resurgent 
domes) on the interior of the caldera. The majority of salamander 
habitat is located on federally managed lands, including the U.S. 
Forest Service (USFS), the National Park Service (Bandelier National 
Monument), Valles Caldera National Preserve, and Los Alamos National 
Laboratory, with some habitat located on tribal land and private lands 
(New Mexico Endemic Salamander Team 2000, p. 1). The Valles Caldera 
National Preserve is located within the valley of the extinct volcanic 
crater itself and is part of the National Forest System (owned by the 
U.S. Department of Agriculture), but run by a nine-member Board of 
Trustees, some of whom are not USFS employees.
    For additional background information on the biology, taxonomy, 
distribution, and habitat of the Jemez Mountains salamander, see the 
Background section of the final listing rule published on September 10, 
2013 (78 FR 55599).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Jemez Mountains salamander 
during two comment periods. The first comment period associated with 
the publication of the proposed rule (77 FR 56482) opened on September 
12, 2012, and closed on November 13, 2012. We also requested comments 
on the proposed critical habitat designation and associated draft 
economic analysis and draft environmental assessment during a comment 
period that opened February 12, 2013, and closed on March 14, 2013 (78 
FR 9876). We also contacted appropriate Federal and State agencies, 
scientific experts and organizations, and other interested parties and 
invited them to comment on the proposal. A newspaper notice inviting 
general public comment was published in the Los Alamos Monitor. We did 
not receive any requests for a public hearing.
    During the first comment period, we received nine comment letters 
addressing the proposed listing of the Jemez Mountains salamander and 
the proposed critical habitat designation. During the second comment 
period, we received 11 comment letters addressing the proposed listing 
of the Jemez Mountains salamander, the proposed critical habitat 
designation, the draft economic analysis, or the draft environmental 
assessment. All substantive information related to the proposed 
critical habitat designation that was provided during comment periods 
has either been incorporated directly into this final determination or 
is addressed below. Comments we received are grouped into general 
issues specifically relating to the proposed critical habitat 
designation for the Jemez Mountains salamander, and are addressed in 
the following summary and incorporated into the final rule as 
appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from seven knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from three of 
the peer reviewers.
    We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the Jemez Mountains salamander. All three peer reviewers agreed that 
the information presented in the proposed rule to list the Jemez 
Mountains salamander with critical habitat is scientifically sound and 
well researched; agreed that the assumptions, analyses, and conclusions 
are well reasoned; and generally agreed that the information is well 
formulated and that the risks or threats to the species have been 
appropriately evaluated. The peer reviewers provided clarifications and 
suggestions to improve the final rules to list the Jemez Mountains 
salamander as endangered and to designate critical habitat. Peer 
reviewer comments specifically regarding the designation of critical 
habitat are addressed in the following summary and incorporated into 
the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: Two peer reviewers thought we should not have removed 
isolated historical data points (i.e., survey locations). One peer 
reviewer noted that there did seem to be sufficient area for the 
conservation of the species, and the other peer reviewer thought the 
isolated historical point data should be included, especially for areas 
in the northeast portion of the Valles Caldera National Preserve if 
large numbers of salamanders were previously reported.
    Our Response: We removed isolated historical data points from our 
analysis only in occasional instances when the areas at and around such 
isolated data points have not been visited for approximately 20 years 
or more. The survey data for these areas are insufficient to determine 
whether the areas are occupied. We are not aware of any area where 
large numbers of

[[Page 69571]]

salamanders have ever been observed that is outside of the critical 
habitat boundaries designated in this final rule.
    (2) Comment: One peer reviewer commented that solid stands of 
Ponderosa pine (Pinus ponderosa) are not optimal salamander habitat, 
and few, if any, salamanders are likely to occur here due to the drier 
conditions, suggesting that the primary constituent element of certain 
tree species alone or in combination should not include Ponderosa pine 
alone.
    Our Response: Based on the biological and physiological needs of 
the species, pure stands of Ponderosa pine may not be the most 
favorable type of habitat and do not represent the majority of habitat; 
however, the species does occur in pure stands of Ponderosa pine.
    The primary constituent elements essential to the conservation of 
the species (such as space, food, cover, and protected habitat) include 
tree canopy cover greater than 50 percent, elevation between 6,988 to 
11,254 feet (ft) (2,130 to 3,430 meters (m)), coniferous logs, and 
underground habitat (more detailed description of these features are in 
the Primary Constituent Elements for the Jemez Mountains Salamander 
section of this final rule). The pure stands of Ponderosa pine contain 
at least one of the primary constituent elements for the Jemez 
Mountains salamander. Consequently, the Service designated critical 
habitat in stands of pure Ponderosa pine in both units (e.g., west of 
Seven Springs in Unit 1, and at American Springs and adjacent to the 
Rio Cebolla in Unit 2).
    (3) Comment: One peer reviewer commented on the statement in the 
proposed critical habitat rule, ``There does not seem to be any areas 
in occupied salamander habitat that are protected from disturbance'' 
(77 FR 56504; September 12, 2012) and suggested that Redondo Peak, the 
highest point where salamanders are found, might be protected from 
disturbance.
    Our Response: Redondo Peak does receive some protection at this 
time because the Valles Caldera Trust manages for its ecological and 
scenic values, and also protects its significant cultural, religious, 
and historic values. The Valles Caldera Preservation Act (16 U.S.C. 
698v et seq.) prohibits motorized access as well as any construction of 
roads, structures, or facilities on Redondo Peak above 10,000 ft (3,048 
m). While Redondo Peak is afforded some protection from new actions 
that would disturb habitat, it still experiences impacts to habitat 
from past silvicultural practices, alterations in vegetation 
composition and fire regimes, existing roads, and climate change. The 
Background section under Critical Habitat below in this final rule 
provides additional information.
    (4) Comment: Two peer reviewers and some commenters thought 
additional information regarding our understanding of the subsurface 
rock and soil components of salamander habitat should be included in 
the habitat section.
    Our Response: Subsurface geology and loose rocky soil structure may 
be an important attribute of salamander habitat (Degenhardt et al. 
1996, p. 28). However, the composition of this belowground habitat has 
not been fully investigated, although soils comprised of pumice or tuft 
generally are not suitable. The salamander's belowground habitat 
appears to be deep, fractured, subterranean igneous rock in areas with 
high soil moisture (New Mexico Endemic Salamander Team 2000, p. 2). 
Everett (2003) reported that the salamander occurred in areas where 
soil texture was composed of 56 percent sandy clay loam, 36 percent 
clay loam, 6 percent sandy loam, and 2 percent silty clay loam (p. 28); 
the overall soil bulk density ranged from 0.2 to 0.98 ounces per cubic 
inch (oz per in\3\) (0.3 to 1.7 grams per cubic centimeter (g per 
cm\3\) (p. 28); and average soil moisture ranged from 4.85 to 59.7 
percent (p. 28). Sites with salamanders had a soil pH of 6.6 ( 0.08), and sites without salamanders had a soil pH of 6.2 
( 0.06) (Ramotnik 1988, pp. 24-25). We have updated the 
relevant sections of this final rule to better describe our current 
understanding of subsurface rock and soil components where the Jemez 
Mountains salamander occurs. We have clarified the language in relevant 
sections of this final rule. We are not aware of any reliable 
information that is currently available to us on these topics that was 
not considered in this designation process.

Comments From the U.S. Forest Service

    (5) Comment: It is questionable whether the data used in the 
proposed rule are sufficient for the Service to determine critical 
habitat and primary constituent elements.
    Our Response: It is often the case that biological information may 
be lacking for rare species; however, we reviewed all available 
information and incorporated it into this final rule. Section 4(a)(3) 
of the Act (16 U.S.C. 1531 et seq.), and its implementing regulations 
(50 CFR 424.12), require that, to the maximum extent prudent and 
determinable, the Secretary designate critical habitat at the time the 
species is determined to be an endangered or threatened species. Our 
regulations at 50 CFR 424.12(a)(2) state that critical habitat is not 
determinable when one or both of the following situations exist: (1) 
Information sufficient to perform required analyses of the impacts of 
the designation is lacking, or (2) the biological needs of the species 
are not sufficiently well known to permit identification of an area as 
critical habitat. When critical habitat is not determinable, the Act 
provides for an additional year to publish a critical habitat 
designation (16 U.S.C. 1533(b)(6)(C)(ii)). We reviewed the best 
available scientific information pertaining to the biological needs of 
the species and habitat characteristics where this species is located. 
We sought comments from independent peer reviewers to ensure that our 
designation is based on scientifically sound data, assumptions, and 
analysis. We also solicited information from the general public, 
nongovernmental conservation organizations, State and Federal agencies 
that are familiar with the species and their habitats, academic 
institutions, and groups and individuals that might have information 
that would contribute to an update of our knowledge of the species as 
well as the activities and natural processes that might be contributing 
to the decline of the species. We conclude that the designation of 
critical habitat is determinable for the Jemez Mountains salamander.
    (6) Comment: Practical ways to measure primary constituent elements 
should be defined, and the scale at which primary constituent elements 
are measured on the landscape should be specified. It is virtually 
impossible for the USFS to plan for a specific range in canopy cover or 
plan a thinning or prescribed fire project with canopy cover as an 
objective. Forests of the Jemez Mountains are dynamic in nature, 
consisting of mixed severity fire regimes in moist mixed conifer up to 
spruce-fir forests that likely ranged from moderately closed canopy to 
closed and also resulted in patches within stands with open canopy 
following stand-replacement fires.
    Our Response: The Service is not requiring the USFS to plan for a 
specific range in canopy cover or plan a thinning or prescribed fire 
project with canopy cover as an objective. Rather, we are evaluating 
whether the affected critical habitat would continue to serve its 
intended conservation role for the species. Determining effects to 
critical habitat will be determined through section 7 consultation with 
the Service. These consultations will take place within the context of 
dynamic forests in

[[Page 69572]]

need of restoration. We anticipate consultations with the USFS 
analyzing the primary constituent element of ``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'' for the Jemez Mountains salamander will be similar to 
consultations with the USFS analyzing the primary constituent element 
of ``A shade canopy created by the tree branches covering 40 percent or 
more of the ground'' for the Mexican spotted owl (Strix occidentalis 
lucida), particularly where the ranges of the species overlap.
    (7) Comment: The primary constituent element of canopy cover needs 
to be defined as a range rather than a specific number and possibly by 
forest type.
    Our Response: In this final rule, we have clarified the primary 
constituent element concerning canopy cover is a range. The range for 
tree canopy is defined in this final rule as 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.
    (8) Comment: High canopy cover is likely to decrease the amount of 
moisture reaching the soil surface through sublimation (transformation 
from a solid to a gas without becoming a liquid) of snow from the tree 
canopy (Storck et al. 2002), further impacting moisture regimes for 
salamanders.
    Our Response: The relationship between seasonal precipitation, 
canopy cover, vegetation type, tree density, geology, soil type, and 
soil moisture is complex and not well-studied in the Jemez Mountains. 
Everett (2003, p. 24) characterized Jemez Mountains salamander's 
habitat as having an average canopy cover of 76 percent, with a range 
between 58 to 94 percent, and average soil moisture between 4.85 and 
59.7 percent (p. 28). When Jemez Mountains salamanders have been 
observed above ground during the day, they are primarily found in high 
moisture retreats (such as under and inside decaying logs and stumps, 
and under rocks and bark) (Everett 2003, p. 24) with high overstory 
canopy cover.
    Soil moisture conditions can vary spatially between the ground 
under tree canopy and the ground without tree canopy, as a result of 
the interrelated processes among soil evaporation, leaf interception, 
runoff generation and redistribution, and plant water use (Breshears et 
al. 1998, p. 1015). Relative to the ground without tree canopy, the 
ground beneath the canopy receives reduced precipitation input due to 
the interception of the precipitation from leaves. This also influences 
soil evaporation rates (Breshears et al. 1998, p. 1010). In a study 
measuring spatial variations in soil evaporation caused by tree shading 
for a water-limited pine forest in Israel, the authors report that the 
spatial variability in soil evaporation correlated with solar 
radiation, which was up to 92 percent higher in exposed compared to 
shaded sites, and with water content, which was higher in exposed areas 
during the wetting season, but higher in the shaded areas during the 
drying season (Raz-Yaseef and Yakir 2010, p. 454). This study 
highlights the importance of shade and soil moisture conservation, and 
generally supports the findings of Breshears et al. (entire).
    Without specific studies measuring these processes in salamander 
habitat, we are not able to determine how the changes in vegetation 
composition and structure may have altered soil moisture, evaporation, 
and temperature processes, but we do understand that vegetation 
structure can directly influence hydrological processes that are 
correlated to solar radiation, precipitation, and seasonality, as well 
as other abiotic factors, such as soil type, slope, and topography. 
Furthermore, these complex interactions should be considered when 
forest restoration treatments that alter canopy cover are conducted in 
salamander habitat.
    (9) Comment: Consultations could result in modifications, which 
result in delays to projects that would reduce the threat of high-
intensity wildfire, thereby causing significant impacts to human health 
and safety.
    Our Response: Under no circumstances should a Service 
representative obstruct an emergency response decision made by the 
action agency where human life is at stake. In any future consultation 
for the salamander, the Service does not intend or expect to recommend 
measures that will increase the threat of high-intensity wildfire. Both 
public and private entities may experience incremental time delays for 
projects and other activities due to requirements associated with the 
need to re-initiate the section 7 consultation process or compliance 
with other laws triggered by the designation. To the extent that delays 
result from the designation, they are considered indirect, incremental 
impacts of the designation.
    (10) Comment: Several commenters stated that more scientific 
information is needed to accurately define the primary constituent 
elements, that the primary constituent elements are overly broad and 
are not appropriate, and the the Service has not looked at all the 
scientific data available on the ecology of the Jemez Mountains.
    Our Response: Section 4(b)(2) of the Act states, ``The Secretary 
shall designate critical habitat, and make revisions thereto, under 
subsection (a)(3) on the basis of the best scientific data available.'' 
We considered the best scientific information available to us at this 
time, as required by the Act. This designation is based upon the known 
body of information on the biology of the Jemez Mountains salamander 
and its most closely related species, as well as effects from land-use 
practices on their continued existence. All three peer reviewers 
confirmed that the information contained within this rule is 
scientifically sound; based on a combination of reasonable facts, 
assumptions, and conclusions; and well considered. We are not aware of 
any reliable information that is currently available to us that was not 
considered in this designation process. This final determination 
constitutes our best assessment of areas needed for the conservation of 
the species. Much remains to be learned about this species. Should 
credible, new information become available that contradicts this 
designation, we will reevaluate our analysis and, if appropriate, 
propose to modify this critical habitat designation, depending on 
available funding and staffing. We must make this determination on the 
basis of the best information available at this time, and we may not 
delay our decision until more information about the species and its 
habitat are available (see Southwest Center for Biological Diversity v. 
Babbitt, 215 F.3d 58 (D.C. Cir. 2000)).
    (11) Comment: Several commenters stated that the primary 
constituent elements and critical habitat for the salamander are 
contrary to managing fire-resilient forests, are contrary to restoring 
forests to a sustainable fire regime condition class, or are a 
significant contribution to fuel loading and risk of catastrophic fire. 
Designation and management of critical habitat will place an additional 
burden on land management agencies, further inhibiting their ability to 
prevent or suppress large-scale, stand-replacing wildfire, one of the 
greatest threats to the salamander and its habitat. Some of the primary 
constituent elements are based on current conditions, not historical 
conditions. Management for the salamander should be done in a manner to 
improve fire resiliency and with a goal of moving habitat toward old 
growth characteristics where feasible, taking into consideration 
ecological conditions such as slope, aspect, soil

[[Page 69573]]

productivity, and recognizing that forests are dynamic where climate, 
fire, and disease are drivers. The citation used for canopy cover is 
based on current and unsustainable forest conditions. Application of 
survey requirements for salamanders across the described range of above 
6,900 ft (2,103 m) would effectively prevent management from occurring 
at any scale that would influence landscape-level wildfire.
    Our Response: We understand fire-resilient forests to be forests 
that are able to survive wildfires relatively intact, or with less 
severe ecological damage than would occur in non-resilient forests. The 
Service recognizes that salamander habitat has undergone change 
resulting from historical grazing practices and effective fire 
suppression, most often resulting in shifts in vegetation composition 
and structure and increased risk of large-scale, stand-replacing 
wildfire. While we do not have a full understanding of how these 
particular alterations affect the salamander (potentially further 
drying habitat through increased water demand or increased density of 
trees, or, alternatively, potentially increasing habitat moisture from 
a higher canopy cover), we do know that the changes in the vegetative 
component of salamander habitat have greatly increased the risk of 
large-scale, stand-replacing wildfire.
    In the proposed rule and this final rule, the Service identifies 
reducing fuels to minimize the risk of severe wildfire in a manner that 
considers the salamander's biological requirements as a special 
management activity that could ameliorate threats to the species. We 
note that fires are a natural part of the fire-adapted ecosystem in 
which the salamander has evolved. This may include prescribed fire and 
thinning treatments, restoration of the frequency and spatial extent of 
such disturbances as regeneration treatments, and implementation of 
prescribed natural fire management plans where feasible. We consider 
use of such treatments to be compatible with the ecosystem management 
of habitat mosaics and the best way to reduce the threats of 
catastrophic wildfire. The maintenance of primary constituent elements, 
moist microhabitat conditions, and attributes of a mixed severity fire 
regime (a mosaic of differing fire intensities) over a portion of the 
landscape and in areas that support salamanders is important to the 
recovery of the salamander, and critical habitat designation does not 
preclude the proactive treatments necessary to reduce the risk of 
catastrophic fire or proactively managing forests to restore them to 
old growth conditions, nor are there survey requirements associated 
with this designation.
    The loss of salamander habitat by catastrophic fire is counter to 
the intended benefits of critical habitat designation. Furthermore, we 
expect that some activities may be considered to be of benefit to 
salamander habitat and, therefore, would not be expected to adversely 
modify critical habitat or place an additional burden on land 
management agencies. In addition, critical habitat does not preclude 
adaptive management or the incorporation of new information on the 
interaction between natural disturbance events and forest ecology. We 
continue to support sound ecosystem management and the maintenance of 
biodiversity, and we will fully support land management agencies in 
addressing the management of fire to protect and enhance natural 
resources under their stewardship.
    During a multi-agency, multi-stakeholder collaborative meeting in 
2010, to discuss salamander conservation and forest management, 
attendants recognized the importance of allowing fire to return to 
southwestern forests, and the Jemez Mountains, in particular. There was 
agreement that focusing restoration treatments on south-facing slopes 
that have converted to xeric mixed conifer over the past 100 years 
would break up the continuity of excessive fuels across the landscape 
and would be a good starting place to reduce the risk of large-scale 
wildfires in the Jemez Mountains. It was agreed upon that there would 
be short-term negative impacts to the salamander and its habitat on 
south-facing slopes, but that the approach overall was beneficial to 
the conservation of the species and its habitat over its entire range 
(Jemez Mountains Salamander Adaptive Planning Workshop 2010, pp. 8-11).
    (12) Comment: The USFS stated that using only the decision 
criterion of administrative costs associated with expanded consultation 
fails to include the full range of costs when projects are delayed or 
changed. The USFS suggests that the Service should also calculate the 
costs associated with the reasonable and prudent alternatives that 
could result from consultation, such as relocation of projects outside 
salamander habitat or monitoring for salamanders before activities 
occur.
    Our Response: As stated in the executive summary of the final 
economic analysis, the Service anticipates that in cases where an 
action is found to adversely modify critical habitat for the 
salamander, the action would also be found to jeopardize the species 
(IEc 2013, p. ES-4). That is, actions which the Service is likely to 
recommend avoiding adverse modification are the same as those to avoid 
jeopardy. Thus, the incremental impacts of the critical habitat 
designation for the salamander appear unlikely to include additional 
conservation actions or project modifications. As a result, the 
economic analysis focused on quantifying the incremental impacts 
associated with the administrative effort of addressing potential 
adverse modification of critical habitat in the context of section 7 
consultations.

Comments Received From the U.S. Forest Service on the Draft 
Environmental Assessment

    (13) Comment: The draft environmental assessment should describe 
the effects that large areas (such as the area currently proposed as 
critical habitat) of closed canopy may have to the salamander under 
current fire conditions.
    Our Response: We understand that the forests of the Jemez Mountains 
are dynamic, and we are not suggesting that the entire area of critical 
habitat consists of uniformly closed canopy throughout the two units of 
critical habitat. Furthermore, the designation of critical habitat does 
not require the creation of primary constituent elements where they do 
not currently exist. The proposed rule included the Service's analysis 
of the relationship of forest canopy to Jemez Mountains salamander 
habitat and fire conditions, concluding, ``Therefore, forest 
composition and structure conversions resulting in increased canopy 
cover and denser understory pose threats to the salamander now and are 
likely to continue in the future'' (77 FR 56489; September 12, 2012).
    (14) Comment: The draft environmental assessment first states it 
will analyze effects on physical, biological, and socioeconomic 
resources, but its analysis then states it only focuses on consultation 
impacts.
    Our Response: Section 3.1.1 of the final environmental assessment, 
``Methodology,'' explains why the proposed action is not expected to 
produce effects to physical and biological resources environments, and 
why the analysis focuses on the impacts of expanding jeopardy 
consultations to include adverse modification (Mangi Environmental 
Group 2013, pp. 20-23).
    (15) Comment: The draft environmental assessment states that 
effects from designating critical habitat would be minor, but presents 
no evidence. The USFS would argue that

[[Page 69574]]

not being able to implement a project, such as the Southwest Jemez 
Mountains Collaborative Forest Landscape Restoration Project, to its 
full extent is likely to result in a high-intensity wildfire with 
associated costs to society and natural resources.
    Our Response: As stated in the final environmental assessment, we 
may use habitat as a proxy for species presence in future 
consultations, because the life history and behavior of salamanders 
make them difficult to survey or detect (Mangi Environmental Group 
2013, pp. 21-22). Therefore, consultation outcomes that affect the 
Southwest Jemez Mountains Collaborative Forest Landscape Restoration 
Project would be the same whether or not critical habitat is 
designated, and the impacts of concern here are not attributable to the 
designation of critical habitat.
    (16) Comment: The environmental assessment should analyze the 
benefits of exclusion of critical habitat according to section 4(b)(2) 
of the Act.
    Our Response: Section 4(b)(2) of the Act states that the Secretary 
shall designate and make revisions to critical habitat on the basis of 
the best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor. We did not identify any areas for exclusion that were 
appropriate for consideration under section 4(b)(2) of the Act; 
therefore there were no exclusions to evaluate in the environmental 
assessment.
    (17) Comment: The draft environmental assessment lists 
contradictory recommendations to avoid destruction or adverse 
modification of critical habitat and to avoid jeopardy.
    Our Response: No consultations have yet been conducted for the 
Jemez Mountains salamander, so the potential outcomes and modifications 
presented in the environmental assessment represent a range of possible 
outcomes. The type of project, the timing of the project, and the 
duration of the project, in addition to other factors, will be 
evaluated during any future consultations and will determine the 
specific outcomes or recommended modifications. In most cases, we 
expect that the same agencies and types of projects will go through the 
section 7 consultation process with or without critical habitat, and we 
anticipate that recommended actions in a section 7 consultation will be 
same to avoid adverse modification and jeopardy.
    (18) Comment: Cumulative effects analysis in the draft 
environmental assessment needs to: (a) Identify spatial and temporal 
bounds, (b) include cumulative effects for other foreseeable listings, 
(c) total all consultation costs within the proposed area, and (d) 
clarify what cumulative effects are being considered.
    Our Response: The spatial bounds for cumulative analysis are the 
boundaries of proposed critical habitat. While it is possible that 
certain activities requiring consultation could occur outside of 
critical habitat, there is none currently foreseeable. Also, it was 
beyond the purview of the environmental assessment to speculate on the 
prudency or actual boundaries of a critical habitat designation for 
candidate species. In addition, total consultation costs are given in 
the analysis of socioeconomic impacts as approximately $260,000 (IEc 
2013, p. ES-4). Mention of this figure has been added to the cumulative 
impacts analysis of socioeconomic effects in the final environmental 
assessment (Mangi Environmental Group 2013, p. 63). For clarity, the 
following section in ``Methodology'' is repeated in the ``Cumulative 
Effects''section of the final environmental assessment: ``In the case 
of the salamander, the Service expects that the same agencies and types 
of projects would go through the section 7 consultation process with or 
without critical habitat, and that the same number of projects would 
likely undergo consultation with critical habitat as without. 
Therefore, the analysis of impacts to resources and activities focuses 
on the impacts of expanding jeopardy consultations to include analysis 
of adverse modification.''
    (19) Comment: The only costs listed in the environmental assessment 
are for the Socioeconomics and Development sections.
    Our Response: In our economic analysis, the Service estimates the 
present value of all incremental impacts to be approximately $264,000 
over 20 years, assuming a 7 percent discount rate. These incremental 
costs are administrative costs resulting from the consideration of 
adverse modification in section 7 consultations regarding fire 
management ($120,000), road maintenance ($71,000), and other Federal 
and State land management activities, such as noxious weed control, 
recreational management, livestock grazing, and the operation of the 
Seven Springs Fish Hatchery ($73,000) (IEc 2012). The components of 
total consultation costs are now itemized in the final environmental 
assessment (Mangi Environmental Group 2013, pp. 59-60).
    (20) Comment: The map on page 16 of the draft environmental 
assessment should show where salamanders are found, and overlay the 
essential, survey, and peripheral zones.
    Our Response: The map on page 16 of the environmental assessment 
displays the proposed critical habitat units. Overlaying the habitat 
management zones, as described in the multi-agency Salamander 
Conservation Plan (NMEST 2000), does not aid in evaluating the 
environmental impacts of critical habitat designation. The coordinates 
or plot points or both from which the maps for designated critical 
habitat are generated are included in the administrative record for 
this critical habitat designation and are available at http://www.fws.gov/southwest/es/NewMexico/index.cfm, at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0005, and at the New 
Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT). Any additional tools or supporting information that we 
developed for this critical habitat designation will also be available 
on the Service's Web sites and at New Mexico Ecological Services Field 
Office.
    (21) Comment: In the draft environmental assessment, the Service 
projects a number of consultations within the ``Land Use'' section, but 
for no other resources.
    Our Response: Projected numbers of consultations have been added to 
the relevant sections of the final environmental assessment: 20 formal 
consultations for fire management, 6 for travel and recreation, 4 for 
noxious weed management, 2 for the Seven Springs Fish Hatchery, and 5 
for road projects (Mangi Environmental Group 2013, p. 32).
    (22) Comment: There is a contradiction in the draft environmental 
assessment statement that, ``As human development and recreation 
increase in the Jemez Mountains the presence of Wild Urban Interfaces 
(WUIs) could increase within and around proposed critical habitat.''

[[Page 69575]]

    Our Response: Page 45 the draft environmental assessment stated, 
``Projects that increase human disturbances in remote locations like 
residential development, construction of roads and trails in 
recreational areas, and road clearing and maintenance activities, could 
adversely affect the species and its habitat,'' which is consistent 
with the statement to which the commenter refers (Mangi Environmental 
Group 2013, pp. 45). However, we are unaware of any major construction 
projects planned within the proposed critical habitat. Beyond this, the 
commenter's concern is not clear, but we have replaced the word ``as'' 
in the statement on p. 39 to ``if,'' to clarify that such increases are 
not inevitable (Mangi Environmental Group 2013, p. 39).
    (23) Comment: Explain the acronyms EMP and EST in Table 3.5 of the 
draft environmental assessment.
    Our Response: The acronyms refer to the number of employees (EMP) 
and establishments (EST) in each industry type. This has been clarified 
in the ``Table Heading'' of the final environmental assessment (Mangi 
Environmental Group 2013, p. 52).
    (24) Comment: Clarify whether Table 3.7 on page 54 of the draft 
environmental assessment applies to areas of the Santa Fe National 
Forest within proposed habitat, or to the whole National Forest, and if 
the latter, explain why it is relevant to this analysis.
    Our Response: The numbers represent visitors to the whole National 
Forest, and are provided as overall context for the analysis.

Comments From the State

    We received comments from the New Mexico Department of Agriculture 
regarding the proposal to designate critical habitat for the Jemez 
Mountains salamander, which are addressed below.
    (25) Comment: The Service should address the Jemez Mountains 
salamander as a watershed health issue rather than a single species 
habitat preservation issue, and the designation of critical habitat 
will be counter-productive to solving the problem of poor watershed 
health in the Jemez Mountains. The USFS commented that the need to 
designate critical habitat is not supported by evidence.
    Our Response: The Service is required to designate critical habitat 
concurrently with listing a species. See our response to comment 5, 
above, for an explanation of critical habitat designation requirements 
under the Act. Designating critical habitat for the Jemez Mountains 
salamander does not preclude forest restoration or management 
practices, including but not limited to prescribed fire and thinning 
treatments, restoration of the frequency and spatial extent of such 
natural disturbances, and implementation of prescribed natural fire 
management plans where feasible. We consider use of such treatments to 
be compatible with the ecosystem management of habitat mosaics and the 
best way to reduce the threats of catastrophic wildfire to Jemez 
Mountains salamander habitat and provide protection for the species. In 
addition, critical habitat designation for the Jemez Mountains 
salamander does not preclude adaptive management or the incorporation 
of new information on the interaction between natural disturbance 
events and forest ecology. We continue to support sound ecosystem 
management and the maintenance of biodiversity, and we will fully 
support land management agencies in addressing the management of fire 
to protect and enhance natural resources under their stewardship.
    (26) Comment: The efforts of private landowners and Soil and Water 
Conservation Districts (SWCDs) to prevent catastrophic wildfire and 
rehabilitate after wildfire are not considered. The New Mexico 
Department of Agriculture indicated that private landowners and SWCDs 
are thinning defensible spaces, implementing sustainable grazing 
practices, and implementing water development actions.
    Our Response: We recognize that private landowners and SWCDs are 
contributing to rehabilitation in burned areas by, among other things, 
seeding and controlling erosion. We know that private landowners and 
SWCDS are some of the numerous partners that are working with the 
Southwest Jemez Mountains Collaborative Forest Landscape Restoration 
Project. However, we do not know the extent of these actions nor their 
impact to the Jemez Mountains salamander or its habitat at this time.
    (27) Comment: The Service should partner with ongoing efforts, such 
as the Southwest Jemez Mountains Collaborative Forest Landscape 
Restoration Project, to effectively improve the watershed health of the 
Jemez Mountains and thus benefit the salamander.
    Our Response: We agree that strong partnerships and collaborations 
are essential for the restoration and conservation of our natural 
resources. The Service appreciates the ongoing efforts and 
collaborations with its existing partners, including members of the 
Southwest Jemez Mountains Collaborative Forest Landscape Restoration 
Project. We have attended, and continue to attend, planning and 
monitoring meetings, and we provide technical support for the Southwest 
Jemez Mountains Collaborative Forest Landscape Restoration Project. In 
addition, we look forward to establishing new partnerships to forward 
conservation.

Comments From the New Mexico Department of Agriculture on the Draft 
Environmental Assessment and Economic Analysis

    (28) Comment: The designation of critical habitat could limit 
access to project sites with the effect of increasing associated costs 
or preventing access entirely, resulting in limited or cancelled 
watershed restoration work.
    Our Response: The designation of critical habitat does not prevent 
access to any land, whether private, tribal, State or Federal. Critical 
habitat receives protection under section 7 of the Act through the 
requirement that Federal agencies ensure, in consultation with the 
Service, that any action they authorize, fund, or carry out is not 
likely to result in the destruction or adverse modification of critical 
habitat. The designation of critical habitat does not affect land 
ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act apply, but even in the event of a destruction or adverse 
modification finding, the obligation of the Federal action agency and 
the landowner is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat. The final environmental 
analysis lists potential project modifications that could be 
recommended to avoid adverse modification (Mangi Environmental Group 
2013, pp. 42-43). This analysis includes looking at the limitations on 
the timing and route of access to a forest or fuels management project.
    (29) Comment: The designation of critical habitat could limit 
access, and ranching activity would be negatively affected.
    Our Response: See our response to comment 28, above. In section 
1.8.1, Livestock Grazing, of the final

[[Page 69576]]

environmental analysis, the following sentence has been revised from, 
``Impacts may include small-scale habitat modification, such as 
livestock trail establishment or soil compaction, or direct effects, 
such as trampling'' To, ``Impacts may include small-scale habitat 
modification, such as livestock trail establishment or soil compaction; 
limitations on access to grazing allotments by livestock managers 
through road closures or decommissioning; or direct effects, such as 
trampling'' (Mangi Environmental Group 2013, pp. 12-13).
    (30) Comment: Listing of the salamander and designation of critical 
habitat may further slow progress of the Southwest Jemez Mountains 
Collaborative Forest Landscape Restoration Project by adding another 
level of bureaucracy and taking federal funding away from on-the-ground 
watershed restoration work to use for regulatory compliance associated 
with the Act.
    Our Response: Section 3.3.1 of the final economic analysis has been 
revised to discuss this concern (IEc 2013, p. 3-6). The analysis 
quantifies estimated additional administrative costs of critical 
habitat for the Jemez Mountaians salamander to be approximately $23,000 
annually across all agencies. As stated in the executive summary of the 
economic analysis, the Service anticipates that in cases where an 
action is found to adversely modify critical habitat for the 
salamander, the action would also be found to jeopardize the species. 
That is, actions which the Service is likely to recommend to avoid 
adverse modification are the same as those to avoid jeopardy. Thus, the 
incremental impacts of the critical habitat designation for the 
salamander appear unlikely to include additional conservation actions 
or project modifications. As a result, this analysis focuses on 
quantifying the incremental impacts associated with the administrative 
effort of addressing potential adverse modification of critical habitat 
in the context of section 7 consultations. We recognize that there may 
be additional administrative costs associated with this critical 
habitat designation, but we do not think that these costs will have a 
significant negative impact on the Southwest Jemez Mountains 
Collaborative Forest Landscape Restoration Project.

Comments From Santa Clara Pueblo

    (31) Comment: The Service indicated in the proposed rule that 
salvage logging and timber harvesting could adversely affect the 
salamander's habitat because these activities, among other things, 
compact soils or increase the risk of warming the soil moisture. In 
response, the Santa Clara Pueblo commented that, rather than decreasing 
soil moisture, responsible timber harvesting can actually increase 
available soil moisture because transpiration of the vegetation is 
decreased and more soil moisture becomes available for residual plant 
growth and for the salamander.
    Our Response: We agree with these statements, and believe that how 
actions such as timber harvesting occur could result in adverse, 
beneficial, or both impacts to the salamander and its habitat.
    (32) Comment: The Santa Clara Pueblo stated that it is in 
discussions with the USFS regarding co-management stewardship 
activities in some National Forest Service lands pursuant to the Tribal 
Forest Protection Act (25 U.S.C. 3101 et seq.); some of the proposed 
Tribal Forest Protection Act project lands are located within the areas 
proposed by the Service as critical habitat for the salamander. The 
Santa Clara Pueblo notes that the draft economic analysis does not 
consider economic impacts that the Santa Clara Pueblo would incur if 
fire management activities are curtailed due to the designation of 
critical habitat and if, as a result, additional stand replacement 
fires starting or burning through the Santa Fe National Forest and 
Valles Caldera National Preserve lands could jump onto unburned or 
replanted Santa Clara Pueblo lands. They cite, in particular, areas in 
Unit 1, known as the Upper Santa Clara Creek watershed, the Antlers and 
Cerro Toledo, as being of concern. They note that the Las Conchas fire 
severely burned 16,000 acres in Santa Clara Creek Canyon, their 
spiritual sanctuary.
    Our Response: The following material has been added to section 
1.8.1 in the final environmental assessment (Mangi Environmental Group 
2013, p. 13) under a new header ``Tribal Resources'': ``There are no 
tribal lands within the critical habitat designation. However, the 
designation includes lands within the Santa Fe National Forest and 
Valles Caldera National Preserve that are adjacent to the Santa Clara 
Pueblo (Pueblo). Much of these adjacent areas were severely burned 
during the Las Conchas Fire of 2011. These lands include culturally 
important areas for the Pueblo and have unhealthy, unburned forest 
conditions that make them a continued, immediate threat to catastrophic 
wildfire spreading onto Pueblo lands (Santa Clara Pueblo 2013). 
Therefore, the Pueblo has entered in discussions with the USFS, 
pursuant to the Tribal Forest Protection Act, to co-manage stewardship 
projects on these lands, including hazardous fuels reduction and 
ensuring there are proper fuel breaks to protect remnant unburned areas 
on Pueblo lands from fires coming off National Forest lands. 
Consultations with Santa Fe National Forest on fire management 
activities proposed on Pueblo-adjacent lands pursuant to the Tribal 
Forest Protection Act will be conducted in accordance with the 
Service's responsibilities as outlined in Secretarial Order 3206, which 
states (Appendix, section 3(C)(3)(c), ``When the Services enter info 
formal consultations with agencies not in the Departments of the 
Interior or Commerce, on a proposed action which may affect tribal 
rights or tribal trust resources, the Services shall notify the 
affected Indian tribe(s) and encourage the action agency to invite the 
affected tribe(s) and the BIA [Bureau of Indian Affairs] to participate 
in the consultation process'' (Service 1997).'' Section 3.3 of the 
economic analysis has been modified to reflect Pueblo concerns, 
including potential impacts on tribal economic and cultural activities 
associated with changes to planned fire management activities. This 
section assumes that Tribal Forest Protection Act activities will be 
included in the USFS consultations forecasted to occur every 10 years. 
The economic analysis has included Santa Clara Pueblo Tribal Forest 
Protection Act activities under chapter 3, Fire Management under 
Baseline Conservation Efforts (IEc, April 22, 2013, p. 3-7).
    (33) Comment: Santa Clara Pueblo stated that the primary 
constituent elements could affect fire protection, forest, and 
ecological restoration management measures for projects associated with 
the Tribal Forest Protection Act.
    Our Response: See our responses to comments 11 and 25, above.

Public Comments

    (34) Comment: Jemez Mountains salamanders have been found in areas 
without canopy or with a canopy other than mixed conifer. The emphasis 
placed on some of the primary constituent elements and not others are 
based on the relative ease or difficulty of finding salamanders in 
habitat with those elements.
    Our Response: Primary constituent elements are those specific 
elements of the physical or biological features that provide for a 
species' life-history processes and are essential to the conservation 
of the species. See our response to comment 5, above, for an

[[Page 69577]]

explanation of critical habitat designation requirements under the Act.
    While the Jemez Mountains salamander can be found in areas outside 
forested areas and outside coniferous forest in particular, when active 
above ground, the Jemez Mountains salamander is more commonly found 
within forested areas under decaying logs, rocks, bark, or moss mats, 
or inside decaying logs and stumps. Jemez Mountains salamanders are 
generally found in association with decaying coniferous logs, 
particularly Douglas fir, considerably more often than deciduous logs, 
likely due to the differences in physical features (e.g., coniferous 
logs have blocky pieces with more cracks and spaces than deciduous 
logs) (Ramotnik 1988, p. 53). See the Criteria Used To Identify 
Critical Habitat section of this final rule for a complete description 
of the information used to designate critical habitat.
    Our initial step in identifying critical habitat was to determine 
the physical or biological habitat features essential to the 
conservation of the species. The Service has identified four primary 
constituent elements sufficient to support the life-history processes 
and which are essential to the conservation of the species. We then 
identified the geographic areas that are occupied by the Jemez 
Mountains salamander and that contain one or more of the physical or 
biological features. We are designating two critical habitat units 
based on sufficient elements of the physical or biological features 
being present to support the Jemez Mountains salamander's life 
processes. Some portions of the units contain all of the identified 
elements of physical or biological features and support multiple life 
processes. Some portions of units contain only some elements of the 
physical or biological features necessary to support the Jemez 
Mountains salamander's particular use of that habitat. The Service did 
not place emphasis on one primary constituent element over another.
    (35) Comment: The proposed rule cited the influence of soil pH in 
salamander habitat, but ignores it as a primary constituent element.
    Our Response: Soil pH may be an important variable in salamander 
habitat; however, data concerning soil pH in Jemez Mountains salamander 
habitat are limited to nine sites (four logged and five unlogged), 
seven of which are in relatively close proximity to each other in one 
drainage on the west side of the Jemez Mountains (Ramotnik 1988, p. 
40). Ramotnik (1988, p. 41) reported a significant difference in pH 
between the logged areas and the unlogged areas where salamanders were 
found, but it is not known if salamanders were present prior to 
logging. Consequently, we do not believe these data are sufficient to 
extrapolate across the range of the species and do not conclude that pH 
within a certain range is a primary constituent element for the 
salamander.
    (36) Comment: Preference of salamander habitat use on steep slopes 
as reported in Ramotnik (1988) has been dismissed.
    Our Response: Additional survey information since Ramotnik (1988) 
indicates that salamanders use habitat on all slopes. Further, Everett 
(2003) reported that the salamander occurred on all slope aspects (p. 
21) (the average slope ranged from 4 to 40.5 degrees (p. 24)).
    (37) Comment: No evidence is presented that time above ground is 
necessary for the salamander's life cycle, but most of the primary 
constituent elements of critical habitat have to do with above ground 
components of mixed conifer forests.
    Our Response: Please see our responses to comments 4, 10, and 34. 
Additionally, above ground surface activity during wet surface 
conditions is a characteristic of the natural history of the Jemez 
Mountains salamander. Stomach contents consist primarily of above-
ground and ground-dwelling invertebrates. Further, plethodontid 
salamanders store fat reserves in their tails for energetic use when 
foraging opportunities are reduced or do not exist (e.g., underground). 
Consequently, we conclude that one purpose for above ground activity is 
to feed. Additionally, based on reproductive studies, this species 
mates in July and August, which coincides with the above-ground 
activity period. We, therefore, conclude that time above ground is 
necessary for foraging and mating. See the Criteria Used To Identify 
Critical Habitat section of this final rule for a complete description 
of the information used to designate critical habitat.
    (38) Comment: One commenter stated that the draft economic analysis 
should include a section explaining the benefits of having critical 
habitat for the Jemez Mountains salamander. The commenter also stated 
that itemized costs would be beneficial to the analysis.
    Our Response: Chapter 6 of the draft economic analysis discussed 
benefits of the designation. Chapters 3-5 and Appendix B present 
detailed information and assumptions used to develop estimates of the 
anticipated incremental costs of the designation.

Changes From the Previously Proposed Critical Habitat Designation

    In this final critical habitat designation, we are finalizing the 
minor changes that were proposed in the reopening of the public comment 
period that published on February 12, 2013 (78 FR 9876). At that time, 
we amended the PCEs that we proposed in our September 12, 2012 proposed 
rule (77 FR 56482) to provide additional clarification to the PCEs 
concerning tree canopy cover and ground surface in forest areas (PCEs 1 
and 3a). The overall intent of the proposed PCEs did not change. 
Additionally, we revised the size of the two proposed critical habitat 
units from our September 12, 2012, rule, 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 was 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 updated the approximate area and land 
ownership of both proposed critical habitat units; the updated 
information is in Table 2 below. The total Federal 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. When we used the updated map 
information, 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 proposed and are now finalizing 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 proposed our September 12, 
2012 proposed rule (77 FR 56482). 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. Finally, in the Proposed Regulation 
Promulgation section of our September 12, 2012 (77 FR 56482), proposed 
rule we erroneously presented the map as an index map. We have 
corrected this error in this final rule by presenting the map as the 
map of Unit 1 and Unit 2.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:

[[Page 69578]]

    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed, are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of the physical or biological features that provide 
for a species' life-history processes and are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological

[[Page 69579]]

features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the Jemez Mountains salamander from studies of this species' 
habitat, ecology, and life history as described in the Critical Habitat 
section of the proposed rule to designate critical habitat published in 
the Federal Register on September 12, 2012 (77 FR 56482), and in the 
information presented below. Additional information can be found in the 
final listing rule published in the Federal Register on September 10, 
2013 (78 FR 55599). We have determined that the Jemez Mountains 
salamander requires the following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
    The Jemez Mountains salamander is restricted to areas in the Jemez 
Mountains around the rim of a large volcanic crater. There are also 
some Jemez Mountain salamanders that have been found on topographic 
features (e.g., resurgent domes) on the interior of the crater. The 
widespread presence of igneous rock throughout the area is the result 
of the volcanic origins of the Jemez Mountains. It is possible that the 
salamander may be distributed in this restricted area because of the 
fractured rock and interstitial crevices and gaps that occur here.
    The Jemez Mountains salamander has been observed in forested areas 
of the Jemez Mountains located along two sides of the volcanic crater, 
ranging in elevation from 6,998 to 10,990 ft (2,133 to 3,350 m) 
(Ramotnik 1988, pp. 78, 84). The Jemez Mountains salamander spends much 
of its life underground, but it can be found active above ground from 
July through September, when environmental conditions are warm and wet. 
The aboveground habitat occurs within forested areas, primarily within 
areas that contain Douglas fir (Pseudotsuga menziesii), blue spruce 
(Picea pungens), Engelman spruce (P. engelmannii), white fir (Abies 
concolor), limber pine (Pinus flexilis), Ponderosa pine (Pinus 
ponderosa), Rocky Mountain maple (Acer glabrum), and aspen (Populus 
tremuloides) (Degenhardt et al. 1996, p. 28; Reagan 1967, p. 17). 
Redondo Peak contains both the maximum elevation in the Jemez Mountains 
(11,254 ft (3,430 m)) and the highest salamander observation (10,990 ft 
(3,350 m)). Surveys have not yet been conducted above this highest 
observation on Redondo Peak, but the habitat contains those primary 
constituent elements we have identified from areas known to contain the 
salamander. Alternatively, the vegetation communities and moisture 
conditions at elevations below 6,998 ft (2,133 m) are not suitable for 
the Jemez Mountains salamander.
    The salamander's underground habitat appears to be deep, fractured, 
subsurface igneous rock in areas with high soil moisture (NMEST 2000, 
p. 2). Subsurface geology and loose rocky soil structure may be an 
important attribute of underground salamander habitat (Degenhardt et 
al. 1996, p. 28). Geologic and moisture constraints likely limit the 
distribution of the species (NMEST 2000, p. 2). Soil pH (acidity or 
alkalinity) may limit distribution as well. However, the composition of 
this subterranean habitat has not been fully investigated. Everett 
(2003) reported that the salamander occurred in areas where soil 
texture was composed of 56 percent sandy clay loam, 36 percent clay 
loam, 6 percent sandy loam, and 2 percent silty clay loam (p. 28); the 
overall soil bulk density ranged from 0.2 to 0.98 ounces per cubic inch 
(oz per in 3) (0.3 to 1.7 grams per cubic centimeter (g per 
cm3) (p. 28); and average soil moisture ranged from 4.85 to 
59.7 percent (p. 28). Sites with salamanders had a soil pH of 6.6 
( 0.08), and sites without salamanders had a soil pH of 6.2 
( 0.06) (Ramotnik 1988, pp. 24-25). The salamander's 
subterranean habitat appears to be deep, fractured, subterranean 
igneous rock in areas with high soil moisture (New Mexico Endemic 
Salamander Team 2000, p. 2). Many terrestrial salamander species 
deposit eggs in well-hidden sites, such as underground cavities, 
decaying logs, and moist rock crevices (Pentranka 1998, p. 6). Because 
the Jemez Mountain salamander spends the majority of its life below 
ground and because Jemez salamander eggs have not been discovered in 
the wild, Jemez Mountains salamander eggs are probably laid and hatch 
underground in the fractured interstices of subterranean igneous rock.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Jemez Mountains salamanders are terrestrial salamanders that are 
generally active at night and have diurnal (daytime) retreats to places 
that have higher moisture content relative to surrounding areas that 
are exposed to warming from the sun and air currents (Duellman and 
Trueb 1986, p. 198). Jemez Mountain salamanders lack lungs; instead, 
they are cutaneous respirators (meaning they exchange gases, such as 
oxygen and carbon dioxide, through their skin). To support cutaneous 
respiration, its skin is permeable and must be kept moist at all times. 
Consequently, Jemez Mountains salamanders must address hydration needs 
above all other life-history needs. The salamander must obtain its 
water from its habitat, and the salamander has no physiological 
mechanism to stop dehydration or water loss to the environment. We 
suspect that these components may be a main driver behind salamander 
occurrences and distribution. Diurnal retreats that provide moist and 
cool microhabitats are important for physiological requirements in 
terrestrial salamanders and also influence the salamander's ability to 
forage, because foraging typically dehydrates individuals and these 
retreats allow for rehydration (Duellman and Trueb 1986, p. 198). 
Temperature also affects hydration and dehydration rates, oxygen 
consumption, heart rate, and metabolic rate, and thus influences body 
water and body mass in Jemez Mountains salamanders (Duellman and Treub 
1986, p. 203; Whitford 1968, pp. 247-251). Daytime retreats can be 
under rocks, in interiors of logs, in depths of leaf mulch, in shaded 
crevices, and in burrows in the soil (Duellman and Trueb 1986, p. 198). 
When Jemez Mountains salamanders have been observed above ground during 
the day, they are primarily found in high moisture retreats (such as 
under and inside decaying logs and stumps, and under rocks and bark) 
(Everett 2003, p. 24) with high overstory canopy cover. Everett (2003, 
p. 24) characterized the Jemez Mountains salamander's habitat as having 
an average canopy cover of 76 percent, with a range between 58 to 94 
percent and soil that had average soil moisture from 4.85 to 59.7 
percent (p. 28). If water uptake is sufficient during the day, the 
animal can afford to lose water during nocturnal activities (Duellman 
and Trueb 1986, p. 198). Even though many kinds of terrestrial

[[Page 69580]]

amphibians are normally active only at night, they often become active 
during the day immediately after heavy rains (Duellman and Trueb 1986, 
p. 198).
    High moisture diurnal retreats and high canopy closure are typical 
habitat features that correlate with plethodontid salamanders. For 
example, the three habitat features with apparently strong associations 
with the Siskiyou Mountains salamander (Plethodon stormi), a western 
plethodon species, are rocky soil types with adequate interstitial 
spaces, forest canopy closure above 70 percent, and conifer forest 
types with average tree size above 17 in (43.2 cm) diameter at breast 
height (Olson et al. 2009, p. 24). Another example is that course woody 
debris is the most important habitat feature for two other plethodontid 
salamanders in Douglas fir forests in Washington. It was suggested that 
these two plethodontid salamanders may prefer certain types of woody 
debris as cover, especially those associated with large, moderately to 
well-decomposed snags and logs (Aubry et al. 1988, pp. 32, 35).
    Based on this information, we conclude that substrate moisture 
through its effect on absorption and loss of water is the most 
important factor in the ecology of this species (Heatwole and Lim 1961, 
p. 818). Thus, moist and cool microhabitats are essential for the 
conservation of the species.
    In regard to food, Jemez Mountains salamanders have been found to 
consume prey species that are diverse in size and type, with ants, 
mites, and beetles being eaten most often (Cummer 2005, p. 43).
Cover or Shelter
    When active above ground, the Jemez Mountains salamander is usually 
found within forested areas under decaying logs, rocks, bark, or moss 
mats, or inside decaying logs and stumps. Jemez Mountains salamanders 
are generally found in association with decaying coniferous logs, 
particularly Douglas fir, considerably more often than deciduous logs, 
likely due to the differences in physical features (e.g., coniferous 
logs have blocky pieces with more cracks and spaces than deciduous 
logs) (Ramotnik 1988, p. 53). Large-diameter (greater than 10 in (25 
cm)) decaying logs provide important aboveground habitat because they 
are moist and cool compared to other cover; larger logs maintain higher 
moisture and lower temperature longer than smaller logs. These high-
moisture retreats also offer shelter and protection from some predators 
(e.g., skunks (Mephitidae), owls (Strigiformes)).
    The percent surface area of occupied salamander habitat covered by 
decaying logs, rocks, bark, moss mats, and stumps averaged 25 percent 
(Everett 2003, p. 35); however, Everett (2003, p. 35) noted that areas 
with high percentages of area of habitat covered by decaying logs, 
rocks, bark, moss mats, and stumps are difficult to survey and locate 
salamanders when present, and may bias the data toward lower 
percentages of area covered by decaying logs, rocks, bark, moss mats, 
and stumps.
    Furthermore, there may be high-elevation meadows located within the 
critical habitat units that are used by the Jemez Mountains salamander. 
Jemez Mountains salamanders utilize habitat vertically and horizontally 
above ground and below ground. Currently, we do not fully understand 
how salamanders utilize areas like meadows, where the aboveground 
vegetation component differs from areas where salamanders are more 
commonly encountered (e.g., forested areas); however, salamanders have 
been found in high-elevation meadows. Therefore, meadows are considered 
part of the physical or biological features for the Jemez Mountains 
salamander.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    Little is known about the reproduction of the Jemez Mountains 
salamander. Although many terrestrial salamanders deposit eggs in well-
hidden sites, such as underground cavities, decaying logs, and moist 
rock crevices (Pentranka 1998, p. 6), an egg clutch has never been 
observed during extensive Jemez Mountains salamander surveys. Because 
the salamander spends the majority of its life below ground, eggs are 
probably laid and hatch underground. However, we currently lack the 
information to identify the specific elements of the physical or 
biological features needed for breeding, reproduction, or rearing of 
offspring.
Habitats Protected From Disturbance or Representative of the 
Historical, Geographic, and Ecological Distributions of the Species
    All occupied salamander habitat has undergone change resulting from 
historical grazing practices and effective fire suppression, most often 
resulting in shifts in vegetation composition and structure and 
increased risk of large-scale, stand-replacing wildfire (see Factor A 
discussion in the final listing rule published on September 10, 2013 
(78 FR 55599)). This species was first described in 1950, about halfway 
through the approximate 100-year period of shifting vegetation 
composition and structure and building of fuels for wildfire in the 
Jemez Mountains. Thus, research and information pertaining to habitat 
for this species occurs in the context of a species existing in an 
altered ecological situation. Nonetheless, while we do not have a full 
understanding of how these particular alterations affect the salamander 
(potentially further drying habitat through increased water demand of 
increased density of trees, or, alternatively, potentially increasing 
habitat moisture from a higher canopy cover), we do know that the 
changes in the vegetative component of salamander habitat have greatly 
increased the risk of large-scale, stand-replacing wildfire. 
Furthermore, we are only aware of small-scale treatments or forest-
restoration projects that have been implemented to reduce this risk. 
Thus, there do not seem to be any areas in occupied salamander habitat 
that are entirely protected from disturbance. Even so, the 
representative geographic and ecological habitat includes salamander 
habitat in both burned and unburned areas. Although areas not burned by 
large-scale, stand-replacing fires are better habitat, the Jemez 
Mountains salamander has still been found in recently burned habitat 
(12 years post-fire in the Cerro Grande fire).

Primary Constituent Elements for the Jemez Mountains Salamander

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the Jemez Mountains salamander in areas occupied at the 
time of listing, focusing on the features' primary constituent 
elements. Primary constituent elements are those specific elements of 
the physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to 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

[[Page 69581]]

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 spp.); or shrubby oaks (Quercus spp.).
    (2) Elevations from 6,988 to 11,254 ft (2,130 to 3,430 m).
    (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 in (25 cm) 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.
    With this designation of critical habitat, we intend to identify 
the physical or biological features essential to the conservation of 
the species, through the identification of the features' primary 
constituent elements sufficient to support the life-history processes 
of the species.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of this species 
may require special management considerations or protection to reduce 
the following threats: Historical and current fire management 
practices; severe wildland fire; forest composition and structure 
conversions; post-fire rehabilitation; forest management; roads, 
trails, and habitat fragmentation; recreation; and climate change. 
Furthermore, disease and the use of fire retardants or other chemicals 
may threaten the salamander in the future, and may need special 
management considerations. Amphibians, like the salamander, are 
typically very susceptible to chemicals (LABAT Environmental 2007) due 
to their permeable skin. However, at this time, the Service does not 
consider disease or chemical use a threat. A more complete discussion 
of the threats to the salamander and its habitats can be found in 
Summary of Factors Affecting the Species section of the final listing 
rule published on September 10, 2013 (78 FR 55599).
    Management activities that could ameliorate these threats include 
(but are not limited to): (1) Reducing fuels to minimize the risk of 
severe wildfire in a manner that considers the salamander's biological 
requirements; (2) not implementing post-fire rehabilitation techniques 
that are detrimental to the salamander in the geographic areas of 
occupied salamander habitat; and (3) removing unused roads and trails, 
and restoring habitat. A more complete discussion of the threats to the 
salamander and its habitats can be found in Summary of Factors 
Affecting the Species section of the final listing rule published on 
September 10, 2013 (78 FR 55599).

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we used the best 
scientific data available to designate critical habitat. We reviewed 
available information pertaining to the habitat requirements of this 
species. In accordance with the Act and its implementing regulation at 
50 CFR 424.12(e), we considered whether designating additional areas 
outside those currently occupied is necessary to ensure the 
conservation of the species. We are not designating any areas outside 
the geographic area occupied by the species because the designated 
areas can support populations large enough to provide for the 
conservation of the species.
    Our initial step in identifying critical habitat was to determine 
the physical or biological habitat features essential to the 
conservation of the species, as explained in the previous section. We 
then identified the geographic areas that contain one or more of the 
physical or biological features. We also considered information on 
salamander locations from recent surveys. We used various sources of 
available information and supporting data that pertain to the habitat 
requirements of the Jemez Mountains salamander. These included, but 
were not limited to, the 12-month finding published on September 9, 
2010 (75 FR 54822); reports under section 6 of the Act submitted by New 
Mexico Department of Game and Fish that provided information regarding 
biology, survey data, and habitat; the Multi-Agency (New Mexico 
Department of Game and Fish, USFS, and NPS) Jemez Mountains Salamander 
Conservation Management Plan that provides information on salamander 
habitat and biology; research published in peer-reviewed articles 
concerning the biology, habitat, and ecology of Jemez Mountains 
salamanders and other plethodontid species; unpublished academic theses 
that provided information regarding location, habitat, ecology, 
physiology, and ecological shifts of Jemez Mountains salamander; agency 
reports from USFS, NPS, and Los Alamos National Lab; and Bureau of Land 
Management mapping information.
    We plotted point data of survey locations for the salamander using 
ArcMap (Environmental Systems Research Institute, Inc.), a computer GIS 
program, which were then used in conjunction with elevation, 
topography, vegetation, and land ownership information. The point data 
consisted of detection (367 points) and non-detection (1,022 points) 
survey locations. The designated critical habitat units are based on 
the detection and non-detection data, and physical and biological data 
on habitat features necessary to support life-history processes of the 
species. These areas were all located within the unit boundaries 
generated by the GIS model. Areas that have been burned in recent fires 
(e.g., Las Conchas Fire and Cerro Grande Fire) were not excluded from 
the units because fire burns in a mosaic pattern (a mix pattern of 
burned and unburned patches), and sufficient elements of physical and 
biological features remain subsequent to wildfire that allow 
salamanders to continuously occupy areas that have been burned. We 
selected areas within the geographical area occupied at the time of 
listing that contain the physical or biological features essential to 
their conservation. We also verified that these areas required special 
management. Large areas with very limited or no detections were not 
included in the designation. Finally, both units are considered wholly 
occupied because salamanders use both aboveground and belowground 
habitat, moving and utilizing habitat vertically and horizontally. 
Also, high-elevation meadows located within the units are also 
considered wholly occupied because the salamanders have been found 
there. While it is possible that salamanders may not be detected at the 
small scale of a survey (measured in meters), the entire unit is 
considered with the geographic area occupied by the species because of 
the similarity and continuous nature of the physical and biological 
features such as dense tree

[[Page 69582]]

canopy cover, higher levels of ground moisture, many fallen logs, 
surface rocks and woody debris, and igneous soil that allows the 
salamanders to travel below ground as well as above ground. This is due 
to the fact that the lands within the units are virtually all high-
elevation forests growing on top of igneous soil located around the rim 
of a long extinct volcano.
    Recent surveys of Jemez Mountains salamanders conducted by the USFS 
found Jemez Mountain salamanders in a specific area where the 
salamander had not been located before, but was within the area we are 
designating as critical habitat. This demonstrates the occupancy of the 
areas we have designated as critical habitat.
    After utilizing the above methods, we refined the model to exclude 
areas of isolated historical survey point data, which are predominantly 
on USFS and Valles Caldera National Preserve lands within the 
northeastern and northwestern part of the Jemez Mountains, but also 
include small areas on the Santa Clara Pueblo, Los Alamos National 
Laboratory, and private lands.
    The areas we are designating are not located within developed 
lands. They contain very few buildings, but do include several highways 
and forest roads. When determining critical habitat boundaries within 
this final rule, we made every effort to avoid including lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features for the Jemez Mountains salamander. The 
scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such buildings and roads. Any such lands inadvertently left inside 
critical habitat boundaries shown on the map of this final rule have 
been excluded by text in the rule and are not designated as critical 
habitat. Therefore, a Federal action involving these lands will not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    The critical habitat designation is defined by the map, as modified 
by any accompanying regulatory text, presented at the end of this 
document in the Regulation Promulgation section. We include more 
detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which the map is based available 
to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-
2013-0005, on our Internet site at http://www.fws.gov/southwest/es/NewMexico/, and at the New Mexico Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT).
    We are designating as critical habitat lands that we have 
determined are occupied at the time of listing and contain sufficient 
physical or biological features to support life-history processes 
essential for the conservation of the Jemez Mountains salamander.
    We are designating two units based on sufficient elements of 
physical or biological features being present to support the Jemez 
Mountains salamander's life processes. Some portions of the units 
contain all of the identified elements of physical or biological 
features and support multiple life processes. Some portions of units 
contain only some elements of the physical or biological features 
necessary to support the Jemez Mountains salamander's particular use of 
that habitat.

Final Critical Habitat Designation

    We are designating two units as critical habitat for the Jemez 
Mountains salamander. The critical habitat areas described below 
constitute our best assessment at this time of areas that meet the 
definition of critical habitat. Those two units are: (1) Western Jemez 
Mountains Unit, and (2) Southeastern Jemez Mountains Unit. Table 1 
shows the occupied units.

 Table 1--Occupancy of Jemez Mountains Salamander By Designated Critical
                              Habitat Units
------------------------------------------------------------------------
                          Occupied at time of
         Unit                  listing?            Currently occupied?
------------------------------------------------------------------------
1....................  Yes.....................  Yes.
2....................  Yes.....................  Yes.
------------------------------------------------------------------------

    The approximate area of each critical habitat unit is shown in 
Table 2.

     Table 2--Designated Critical Habitat Units for Jemez Mountains
                               Salamander
      [Area estimates reflect all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
                                Land ownership    Size of unit in acres
    Critical habitat unit           by type             (hectares)
------------------------------------------------------------------------
1. Western Jemez Mountains     Federal.........          41,466 (16,781)
 Unit.
                               Private.........                906 (367)
                               State...........                  73 (30)
                                                ------------------------
                               Total Unit 1....          42,445 (17,177)
2. Southeastern Jemez          Federal.........          46,374 (18,767)
 Mountains 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.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the Jemez Mountains 
salamander, below.

Unit 1: Western Jemez Mountains

    Unit 1 consists of 42,445 ac (17,177 ha) in Rio Arriba and Sandoval 
Counties, New Mexico, in the western portion of the Jemez Mountains. In 
Unit

[[Page 69583]]

1, 41,466 ac (16,781 ha) are federally managed, with 26,531 ac (10,736 
ha) on USFS lands and 14,935 ac (6,044 ha) on Valles Caldera National 
Preserve lands; 73 ac (30 ha) are New Mexico Department of Game and 
Fish lands; and 906 ac (367 ha) are private lands. This unit is located 
in the western portion of the distribution of the Jemez Mountains 
salamander and includes Redondo Peak. This unit is within the 
geographical area occupied by the salamander and contains elements of 
essential physical or biological features. The physical or biological 
features require special management or protection from large-scale, 
stand-replacing wildfire; actions that would disturb salamander habitat 
by warming and drying; actions that reduce the availability of 
aboveground cover objects including downed logs; or actions that would 
compact or disturb the soil or otherwise interfere with the capacity of 
salamanders to move between subterranean habitat and aboveground 
habitat.

Unit 2: Southeastern Jemez Mountains

    Unit 2 consists of 48,271 ac (19,535 ha) in Los Alamos and Sandoval 
Counties, New Mexico, in the eastern, southern, and southeastern 
portions of the Jemez Mountains. In Unit 2, 46,375 ac (18,767 ha) are 
federally managed, with 30,366 ac (12,288 ha) on USFS lands, 8,811 ac 
(3,565 ha) on Valles Caldera National Preserve lands, and 7,198 ac 
(2,912 ha) on National Park Service lands (Bandelier National 
Monument). The remaining 1,897 ac (768 ha) in Unit 2 are private lands. 
This unit is within the geographical area occupied by the salamander 
and contains elements of essential physical or biological features. The 
physical or biological features require special management or 
protection from large-scale, stand-replacing wildfire; actions that 
would disturb salamander habitat by warming and drying; actions that 
reduce the availability of aboveground cover objects including downed 
logs; or actions that would compact or disturb the soil or otherwise 
interfere with the capacity of salamanders to move between subterranean 
habitat and aboveground habitat.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species listed under the Act 
or result in the destruction or adverse modification of critical 
habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the Jemez Mountains 
salamander. As discussed above, the role of critical habitat is to 
support life-history needs of the species

[[Page 69584]]

and provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Jemez Mountains salamander. These activities 
include, but are not limited to:
    (1) Actions that would disturb salamander habitat by warming and 
drying. Such activities could include, but are not limited to, 
landscape restoration projects (e.g., forest thinning and 
manipulation); prescribed burns; wildland fire use; wildland-urban-
interface projects (forest management at the boundary of forested areas 
and urban areas); forest silvicultural practices (including salvage 
logging); or other forest management or landscape-altering activities 
that reduce canopy cover, or warm and dry habitat. These activities 
could reduce the quality of salamander habitat or reduce the ability of 
the salamander to carry out normal behavior and physiological 
functions, which are tightly tied to moist cool microhabitats. 
Additionally, these actions could also reduce available high-moisture 
retreats, which could increase the amount of time necessary to regulate 
body water for physiological function and thus reduce the amount of 
time available for foraging and finding a mate, ultimately reducing 
fecundity.
    (2) Actions that reduce the availability of the ground surface 
within forested areas containing downed logs that are greater than 10 
in (0.25 m) in diameter and of any stage of decomposition; or removal 
of large-diameter trees (especially Douglas fir) that would otherwise 
become future high quality cover. Such activities could include, but 
are not limited to, the activities listed in (1), above. Aboveground 
cover objects within the forest provide high-moisture retreats relative 
to surrounding habitat and offer opportunities to regulate body water 
and influence the salamander's capacity to forage and reproduce.
    (3) Actions that would compact or disturb the soil or otherwise 
interfere with the capacity of salamanders to move between subterranean 
habitat and aboveground habitat. Such activities could include, but are 
not limited to, use of heavy equipment, road construction, and pipeline 
installation.
    (4) Actions that spread disease into salamander habitat. Such 
activities could include water drops (i.e., picking up surface water 
contaminated with aquatic amphibian pathogens (e.g., Batrachochytrium 
dendrobatidis (Bd)) and dropping it in forested habitat). While we do 
not know the susceptibility of amphibian pathogens on the Jemez 
Mountains salamander, some pathogens (e.g., Bd) have caused many other 
amphibian species extinctions and declines and could potentially 
threaten the Jemez Mountains salamander.
    (5) Actions that contaminate forested habitats with chemicals. Such 
activities could include aerial drop of chemicals such as fire 
retardants or insecticides. Amphibians in general are sensitive to 
chemicals with which they come in contact because they use their skin 
for breathing and other physiological functions. We would need to 
consult to identify if the particular chemicals proposed for use in the 
action impacted the species.

Exemptions

Application of Section 4(a)(3) of the Act

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographic areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan [INRMP] prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is designated.'' There are no Department of 
Defense lands with a completed INRMP within the critical habitat 
designation.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat based on economic 
impacts, impacts on national security, or any other relevant impacts if 
she determines that the benefits of such exclusion outweigh the 
benefits of specifying such area as part of the critical habitat, 
unless she determines, based on the best scientific data available, 
that the failure to designate such area as critical habitat will result 
in the extinction of the species. In making that determination, the 
statute on its face, as well as the legislative history, are clear that 
the Secretary has broad discretion regarding which factor(s) to use and 
how much weight to give to any factor.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared a draft economic analysis of the 
proposed critical habitat designation and related factors (IEc 2013). 
The draft analysis, dated February 8, 2013, was made available for 
public review from February 12, 2013, through March 14, 2013 (78 FR 
9876). Following the close of the comment period, a final analysis 
(dated April 22, 2013) of the potential economic effects of the 
designation was developed taking into consideration the public comments 
we received and any new information (IEc 2013, entire).
    The intent of the final economic analysis (FEA) is to quantify 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 (baseline). The 
economic impact of the final 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 consider in the final designation of critical habitat. The 
analysis looks retrospectively at baseline impacts incurred since the 
species was listed, and forecasts both baseline and incremental impacts 
likely to occur with the designation of critical habitat.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat

[[Page 69585]]

conservation and the potential effects of conservation activities on 
government agencies, private businesses, and individuals. The FEA 
measures lost economic efficiency associated with residential and 
commercial development and public projects and activities, such as 
economic impacts on water management and transportation projects, 
Federal lands, small entities, and the energy industry. Decision-makers 
can use this information to assess whether the effects of the 
designation might unduly burden a particular group or economic sector. 
Finally, the FEA considers costs that may occur in the 20 years 
following the designation of critical habitat, which was determined to 
be the appropriate period for analysis because limited planning 
information was available for most activities to forecast activity 
levels for projects beyond a 20-year timeframe. The FEA quantifies 
economic impacts of Jemez Mountains salamander conservation efforts 
associated with the following categories of activity: 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.
    Key findings of the FEA include: total present value baseline costs 
are approximately $26 million over 20 years following the designation, 
assuming a 7 percent discount rate ($29 million assuming a 3 percent 
discount rate); 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 the consideration of adverse modification in section 7 
consultations; both units are expected to experience similar levels of 
incremental impact; and 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.
    Our economic analysis did not identify any disproportionate costs 
that are likely to result from the designation. Consequently, the 
Secretary is not exerting his discretion to exclude any areas from this 
designation of critical habitat for the Jemez Mountains salamander 
based on economic impacts.
    A copy of the FEA with supporting documents may be obtained by 
contacting the New Mexico Ecological Services Field Office (see 
ADDRESSES) or by downloading from the Internet at http://www.regulations.gov, or the Service's Internet site at http://www.fws.gov/southwest/es/NewMexico.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this final rule, we have 
determined that the lands within the designation of critical habitat 
for the Jemez Mountains salamander are not owned or managed by the 
Department of Defense, and, therefore, we anticipate no impact on 
national security. We considered excluding Los Alamos National Lab, 
which is under the Department of Energy. However, we have determined 
that lands within the designation of critical habitat are not owned or 
managed by the Los Alamos National Lab. Consequently, the Secretary is 
not exerting her discretion to exclude any areas from this final 
designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
    In preparing this final rule, we have determined that there are 
currently no HCPs or other management plans for the Jemez Mountains 
salamander, and the final designation does not include any tribal lands 
or trust resources. We anticipate no impact on tribal lands, 
partnerships, or HCPs from this critical habitat designation. We also 
considered impacts on private lands, but we do not predict any impacts 
to designated critical habitat, over and above those related to 
jeopardy consultation. Further, we do not anticipate restricting any 
fire suppression or forest restoration. Accordingly, the Secretary is 
not exercising her discretion to exclude any areas from this final 
designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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 
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must 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 (small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an 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. In this final rule, we are certifying that the critical 
habitat designation for the Jemez Mountains salamander will not have a 
significant economic impact on a substantial number of small entities. 
The following discussion explains our rationale.
    According to the Small Business Administration, small entities 
include small organizations, such as

[[Page 69586]]

independent nonprofit organizations; small governmental jurisdictions, 
including school boards and city and town governments that serve fewer 
than 50,000 residents; as well as small businesses. 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 on these small entities are significant, we consider the types 
of activities that might trigger regulatory impacts under this rule, as 
well as the 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 rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities such as fire 
management, private development, transportation, and livestock grazing. 
We apply the ``substantial number'' test individually to each industry 
to determine if certification is appropriate. However, the SBREFA does 
not explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat will only affect activities that 
have a 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. Some kinds of activities are unlikely to have 
any Federal involvement and so will not be affected by critical habitat 
designation. In areas where the species is present, Federal agencies 
already are required to consult with us under section 7 of the Act on 
activities they authorize, fund, or carry out that may affect the Jemez 
Mountains salamander. Federal agencies also must consult with us if 
their activities may affect critical habitat. Designation of critical 
habitat, therefore, could result in an additional economic impact on 
small entities due to the requirement to reinitiate consultation for 
ongoing Federal activities (see Application of the ``Adverse 
Modification'' Standard section).
    In our final economic analysis of the critical habitat designation, 
we evaluated the potential economic effects on small business entities 
resulting from conservation actions related to the listing of the Jemez 
Mountains salamander and the designation of critical habitat. The 
designation of critical habitat for the Jemez Mountains salamander is 
unlikely to directly affect any small entities. As described in the 
main text of the FEA, 97 percent of land in the designation is 
federally owned. Anticipated incremental impacts in critical habitat 
are primarily related to 37 formal consultations and 45 informal 
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, this analysis finds 
little to no impacts to small entities as a result of critical habitat 
designation for the salamander.
    In summary, we considered whether this designation will result in a 
significant economic effect on a substantial number of small entities. 
Based on the above reasoning and currently available information, we 
concluded that this rule will not result in a significant economic 
impact on a substantial number of small entities. Therefore, we are 
certifying that the designation of critical habitat for the Jemez 
Mountains salamander will not have a significant economic impact on a 
substantial number of small entities, and a regulatory flexibility 
analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration. The economic analysis finds that none of 
these criteria are relevant to this analysis. Thus, based on 
information in the economic analysis, energy-related impacts associated 
with the Jemez Mountains salamander conservation activities within 
critical habitat are not expected. As such, the designation of critical 
habitat is not expected to significantly affect energy supplies, 
distribution, or use. Therefore, this action is not a significant 
energy action, and no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support

[[Page 69587]]

Enforcement. ``Federal private sector mandate'' includes a regulation 
that ``would impose an enforceable duty upon the private sector, except 
(i) a condition of Federal assistance or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments and, as such, a Small Government Agency Plan 
is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for Jemez Mountains salamander in a takings 
implications assessment. As discussed above, the designation of 
critical habitat affects only Federal actions. Although private parties 
that receive Federal funding, assistance, or require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. The FEA found that this 
designation will not affect a substantial number of small entities, 
because 97 percent of land in the designation is federally owned. 
Further, based on information contained in the FEA and described within 
this document, it is not likely that economic impacts to a property 
owner will be of a sufficient magnitude to support a takings action. 
The takings implications assessment concludes that this designation of 
critical habitat for the Jemez Mountains salamander does not pose 
significant takings implications for lands within or affected by the 
designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this rule 
does not have significant Federalism effects. A federalism impact 
summary statement is not required. In keeping with Department of the 
Interior and Department of Commerce policy, we requested information 
from, and coordinated development of, this critical habitat designation 
with appropriate State resource agencies in New Mexico. We received 
comments from the New Mexico Department of Agriculture and have 
addressed them in the Summary of Comments and Recommendations section 
of this rule. The Service anticipates that in cases where an action is 
found to adversely modify critical habitat for the salamander, the 
action would also be found to jeopardize the species. That is, actions 
which the Service is likely to recommend to avoid adverse modification 
are the same as those to avoid jeopardy. Thus, the incremental impacts 
of the critical habitat designation for the salamander appear unlikely 
to include additional conservation actions/project modifications. The 
designation of critical habitat in areas currently occupied by the 
Jemez Mountains salamander imposes no additional restrictions to those 
put in place by the listing of the salamander and, therefore, has 
little incremental impact on State and local governments and their 
activities. The designation may have some benefit to these governments 
in that the areas that contain the physical or biological features 
essential to the conservation of the species are more clearly defined, 
and the elements of the features of the habitat necessary to the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist local governments in long-
range planning (rather than having them wait for case-by-case section 7 
consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) will be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. To assist the public in understanding the habitat needs of the 
species, the rule identifies the elements of physical or biological 
features essential to the conservation of the Jemez Mountains 
salamander. The designated areas of critical habitat are presented on a 
map, and the rule provides several options for the interested public to 
obtain more detailed location information, if desired.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

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

    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 pursuant to the National Environmental Policy 
Act (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

[[Page 69588]]

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 undertake a NEPA analysis for critical habitat 
designation and notify the public of the availability of the draft 
environmental assessment for a proposal when it is finished. We 
performed the NEPA analysis, and prepared a draft environmental 
assessment for critical habitat designation and notified the public of 
its availability in the Federal Register on February 12, 2013 (78 FR 
9876). The final environmental assessment concluded that the 
designation is unlikely to result in any significant environmental 
impacts. The Service then completed a finding of no significant impacts 
(FONSI). The final environmental assessment and the FONSI have been 
completed and are available for review with the publication of this 
final rule. You may obtain a copy of the final environmental assessment 
and FONSI online at http://www.regulations.gov, by mail from the New 
Mexico Ecological Services Field Office (see ADDRESSES), or by visiting 
our Web site at http://www.fws.gov/southwest/es/NewMexico/index.cfm.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations With Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. We determined that there are no tribal 
lands occupied by the Jemez Mountains salamander at the time of listing 
that contain the physical or biological features essential to 
conservation of the species, and no tribal lands unoccupied by the 
Jemez Mountains salamander that are essential for the conservation of 
the species. Therefore, we are not designating critical habitat for the 
Jemez Mountains salamander on tribal lands.
    However, this critical habitat designation includes lands within 
the Santa Fe National Forest and Valles Caldera National Preserve that 
are adjacent to the Santa Clara Pueblo. These lands include culturally 
important areas for the Santa Clara Pueblo and have unhealthy, unburned 
forest conditions that make them a continued, immediate threat to 
catastrophic wildfire spreading onto Santa Clara Pueblo lands (Santa 
Clara Pueblo 2013). Therefore, the Santa Clara Pueblo has entered in 
discussions with the USFS, pursuant to the Tribal Forest Protection 
Act, to co-manage stewardship projects on these lands, including 
hazardous fuels reduction and ensuring there are proper fuel breaks to 
protect remnant unburned areas on Santa Clara Pueblo lands from fires 
coming off National Forest lands. Consultations with Santa Fe National 
Forest on fire management activities proposed on Pueblo-adjacent lands 
pursuant to the Tribal Forest Protection Act will be conducted in 
accordance with the Service's responsibilities as outlined in 
Secretarial Order 3206.

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.fws.gov/southwest/es/NewMexico/index.cfm, at 
http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0005, and upon 
request from the New Mexico Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this rulemaking are the staff members of the 
New Mexico Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, 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; 1531-1544; 4201-4245, unless 
otherwise noted.


0
2. Amend Sec.  17.11(h) by revising the entry for ``Salamander, Jemez 
Mountains'' under ``AMPHIBIANS'' in the List of Endangered and 
Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
            Amphibians
 
                                                                      * * * * * * *
Salamander, Jemez Mountains......  Plethodon             U.S. (NM)..........  Entire.............  E                       819     17.95(d)           NA
                                    neomexicanus.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------



0
3. In Sec.  17.95, amend paragraph (d) by adding an entry for ``Jemez 
Mountains Salamander (Plethodon neomexicanus),'' in the same 
alphabetical order that the species

[[Page 69589]]

appears in the table at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *
Jemez Mountains Salamander (Plethodon neomexicanus)
    (1) Critical habitat units are depicted for Los Alamos, Rio Arriba, 
and Sandoval Counties, New Mexico, on the maps below.
    (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 spp.); 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
    (C) Burrows of rodents or large invertebrates.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
December 20, 2013.
    (4) Critical habitat map units. Data layers defining map units were 
created using digital elevation models, GAP landcover data, salamander 
observation data, salamander habitat suitability models, and were then 
mapped using the USA Contiguous Albers Equal Area Conic USGS version 
projection. The map in this entry, as modified by any accompanying 
regulatory text, establishes the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which the map is 
based are available to the public at the Service's internet site at 
http://www.fws.gov/southwest/es/NewMexico/ NewMexico/, at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0005, and at the New 
Mexico Ecological Services Field Office. You may obtain field office 
location information by contacting one of the Service regional offices, 
the addresses of which are listed at 50 CFR 2.2.
    (5) Unit 1: Western Jemez Mountains, Rio Arriba and Sandoval 
Counties, New Mexico. Map of Units 1 and 2 follows:

[[Page 69590]]

[GRAPHIC] [TIFF OMITTED] TR20NO13.000


[[Page 69591]]


    (6) Unit 2: Southeastern Jemez Mountains, Los Alamos and Sandoval 
Counties, New Mexico. Map of Unit 2 is provided at paragraph (5) of 
this entry.
* * * * *

    Dated: November 5, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-27736 Filed 11-19-13; 8:45 am]
BILLING CODE 4310-55-P