Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Sacramento Mountains Checkerspot Butterfly, 54263-54288 [2023-16967]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 88, Number 153 (Thursday, August 10, 2023)]
[Proposed Rules]
[Pages 54263-54288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16967]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2023-0023; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BH13


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Sacramento Mountains Checkerspot Butterfly

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Sacramento Mountains checkerspot 
butterfly (Euphydryas anicia cloudcrofti), a butterfly from New Mexico, 
under the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 1,636.9 acres (662.4 hectares) in Otero County, New 
Mexico, fall within the boundaries of the proposed critical habitat 
designation. We also announce the availability of a draft economic 
analysis of the proposed designation of critical habitat for the 
Sacramento Mountains checkerspot butterfly.

DATES: We will accept comments received or postmarked on or before 
October 10, 2023. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by September 25, 2023.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R2-ES-2023-0023, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R2-ES-2023-0023, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: For this proposed critical 
habitat designation, the coordinates or plot points or both from which 
the maps are generated are included in the decision file for this 
critical habitat designation and are available, along with other 
supporting materials, at https://www.regulations.gov at Docket No. FWS-
R2-ES-2023-0023 and on the Service's website at https://www.fws.gov/about/region/southwest.

FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office, 2105 Osuna NE, Albuquerque, NM 87113; telephone 505-346-2525. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, when we determine 
that any species is an endangered or threatened species, we are 
required to designate critical habitat, to the maximum extent prudent 
and determinable. Designations of critical habitat can be completed 
only by issuing a rule through the Administrative Procedure Act 
rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. We propose to designate critical habitat 
for the Sacramento Mountains checkerspot butterfly, which is listed as 
an endangered species under the Act.
    The basis for our action. Under section 4(a)(3) of the Act, if we 
determine that a species is an endangered or threatened species we 
must, to the maximum extent prudent and determinable, designate 
critical habitat. Section 3(5)(A) of the Act defines critical habitat 
as (i) the specific areas within the geographical area occupied by the 
species, at the time it is listed, on which are found those physical or 
biological features (I) essential to the conservation of the species 
and (II) which may require special management considerations or 
protections; and (ii) specific areas outside the geographical area 
occupied by the species at the time it is listed, upon a determination 
by the Secretary that such areas are essential for the conservation of 
the species. Section 4(b)(2) of the Act states that the Secretary must 
make the designation on the basis of the best scientific data available 
and after taking into consideration the economic impact, the impact on 
national security, and any other relevant impacts of specifying any 
particular area as critical habitat.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule. We particularly seek 
comments concerning:
    (1) Specific information on:
    (a) The amount and distribution of Sacramento Mountains checkerspot 
butterfly habitat;
    (b) Any additional areas occurring within the range of the species 
in Otero County, New Mexico, that should be included in the designation 
because they (i) are occupied at the time of listing and contain the 
physical or biological features that are essential to the conservation 
of the species and that may require special management considerations, 
or (ii) are unoccupied at the time of listing and are essential for the 
conservation of the species;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) To evaluate the potential to include areas not occupied at the 
time of listing, we particularly seek comments regarding whether 
occupied areas are adequate for the conservation of the species. 
Additionally, please provide specific information regarding whether or 
not unoccupied areas would, with reasonable certainty, contribute to 
the conservation of the species and contain at least one physical or 
biological feature essential to the

[[Page 54264]]

conservation of the species. We also seek comments or information 
regarding whether areas not occupied at the time of listing qualify as 
habitat for the species.
    (7) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (8) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (9) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts and the description of the 
environmental impacts in the draft environmental assessment is complete 
and accurate and any additional information regarding probable economic 
impacts that we should consider.
    (10) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act, in particular for those on Tribal lands. We 
are considering the land owned by the Mescalero Apache Tribe in Unit 3 
(Spud Patch Canyon) for exclusion. If you think we should exclude any 
additional areas, please provide information supporting a benefit of 
exclusion.
    (11) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(2) of 
the Act directs that the Secretary shall designate critical habitat on 
the basis of the best scientific data available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Because we will consider all comments and information we receive 
during the comment period, our final designation may differ from this 
proposal. Based on the new information we receive (and any comments on 
that new information), our final designation may not include all areas 
proposed, may include some additional areas that meet the definition of 
critical habitat, or may exclude some areas if we find the benefits of 
exclusion outweigh the benefits of inclusion and exclusion will not 
result in the extinction of the species.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. We may hold the public hearing in person or virtually via 
webinar. We will announce any public hearing on our website, in 
addition to the Federal Register. The use of virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    On January 25, 2022, we published a proposed rule in the Federal 
Register (87 FR 3739) to list the Sacramento Mountains checkerspot 
butterfly as an endangered species (16 U.S.C. 1531 et seq.). At the 
time of our proposal, we determined that designation of critical 
habitat was prudent but not determinable because we lacked specific 
information on the impacts of our designation. In our proposed listing 
rule, we stated we were in the process of obtaining information on the 
impacts of the designation. We published the final listing rule on 
January 31, 2023. Please refer to the proposed and final listing rules 
(87 FR 3739, January 25, 2022; 88 FR 6177; January 31, 2023) for a 
detailed description of previous Federal actions concerning this 
butterfly.

Peer Review

    An assessment team prepared a current condition assessment report 
for the Sacramento Mountains checkerspot butterfly. The assessment team 
was composed of Service biologists, in consultation with other species 
experts. The current condition assessment report represents a 
compilation of the best scientific and commercial data available 
concerning the status of the species, including the impacts of past and 
present factors (both negative and beneficial) affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the Sacramento Mountains 
checkerspot butterfly current condition assessment report. We sent the 
report to five independent peer reviewers and received three responses. 
Results of this structured peer review process can be found at https://www.regulations.gov at Docket No. FWS-R2-ES-2021-0069, which is the 
docket for the listing rules for the Sacramento Mountains checkerspot 
butterfly, or Docket No. FWS-R2-ES-2023-0023, which is the docket 
number for this rulemaking. In preparing this proposed rule, we 
incorporated the results of these reviews, as appropriate, into the 
current condition assessment report, which is the foundation for this 
proposed rule.

Background

    The Sacramento Mountains checkerspot butterfly (butterfly) is a 
subspecies of the Anicia checkerspot, or variable checkerspot, in the 
Nymphalidae (brush-footed butterfly) family that is native to the 
Sacramento Mountains in south-central New Mexico. The Sacramento 
Mountains checkerspot butterfly inhabits high-altitude meadows in the 
upper-montane and subalpine zone at elevations between 2,380 and 2,750 
meters (m) (7,800 and 9,000 feet (ft)) within the Sacramento Mountains, 
which is an isolated mountain range in south-central New Mexico 
(Service 2005 et al., p. 9). The species requires host plants for

[[Page 54265]]

larvae, nectar sources for adults, and climatic moisture.
    Since 1998, populations have been known from 10 meadow units on 
U.S. Forest Service (Forest Service) land (Forest Service 1999, p. 2). 
The meadows cover the occupied areas within the species' range and give 
the most accurate representation of species and habitat conditions 
available. These meadow units include Bailey Canyon, Pines Meadow 
Campground, Horse Pasture Meadow, Silver Springs Canyon, Cox Canyon, 
Sleepygrass Canyon, Spud Patch Canyon, Deerhead Canyon, Pumphouse 
Canyon, and Yardplot Meadow. The species has been extirpated from 
several of these meadows recently. The Yardplot Meadow was sold and 
developed, while suitable habitat in Horse Pasture Meadow was 
eliminated by logging (Forest Service 2017, p. 3) but has since become 
somewhat revegetated. No adults or caterpillars have been detected 
within Pumphouse Canyon since 2003, and the species has likely been 
extirpated at that site (Forest Service 2017, p. 3). In 2020, all 10 
meadows were surveyed for butterflies and larvae; a total of 8 
butterflies were detected in only Bailey Canyon and Pines Meadow 
Campground combined (Forest Service 2020a, p. 3), and no larval tents 
were found at any site (Forest Service 2020a, pp. 1-3; Hughes 2020, 
pers. comm.).
    Critical habitat is defined in section 3 of the Act as:
    (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.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    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 also 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 Federal agency would be required to 
consult with the Service under section 7(a)(2) of the Act. However, 
even if the Service were to conclude that the proposed activity would 
likely result in destruction or adverse modification of the critical 
habitat, the Federal action agency and the landowner are not required 
to abandon the proposed activity, or to restore or recover the species; 
instead, they must 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 data available, those physical or biological features that 
are essential to the conservation of the species (such as space, food, 
cover, and protected habitat).
    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.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific 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 from the current condition assessment report (Service 2022, 
entire) and information developed during the listing process for the 
species. Additional information sources may include any generalized 
conservation strategy, criteria, or outline that may have been 
developed for the species; 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

[[Page 54266]]

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 ensure their actions are not likely to jeopardize the continued 
existence of any endangered or threatened species; and (3) the 
prohibitions found in section 9 of the Act. 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 the 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 those planning efforts calls for a different outcome.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features.
    A feature may be a single habitat characteristic or a more complex 
combination of habitat characteristics. Features may include habitat 
characteristics that support ephemeral or dynamic habitat conditions. 
Features may also be expressed in terms relating to principles of 
conservation biology, such as patch size, distribution distances, and 
connectivity. For example, physical features essential to the 
conservation of the species might include gravel of a particular size 
required for spawning, alkaline soil for seed germination, protective 
cover for migration, or susceptibility to flooding or fire that 
maintains necessary early-successional habitat characteristics. 
Biological features might include prey species, forage grasses, 
specific kinds or ages of trees for roosting or nesting, symbiotic 
fungi, or absence of a particular level of nonnative species consistent 
with conservation needs of the listed species. The features may also be 
combinations of habitat characteristics and may encompass the 
relationship between characteristics or the necessary amount of a 
characteristic essential to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of Sacramento Mountains checkerspot butterfly from 
studies of the species' habitat, ecology, and life history as described 
below. Additional information can be found in the current condition 
assessment report (Service 2022, entire; available on https://www.regulations.gov at Docket No. FWS-R2-ES-2023-0023).
    The main larval host plant for the Sacramento Mountains checkerspot 
butterfly is the New Mexico beardtongue (Penstemon neomexicanus) 
(Ferris and Holland 1980, p. 7), also known as New Mexico penstemon. 
The larvae rely nearly entirely upon the New Mexico beardtongue during 
pre- and post-diapause. Because of the Sacramento Mountains checkerspot 
butterfly's dependency on New Mexico beardtongue, it is vulnerable to 
any type of habitat degradation that reduces the host plant's health 
and abundance (Service et al. 2005, p. 9). New Mexico beardtongue is a 
member of the Plantaginaceae, or figwort, family (Oxelman et al. 2005, 
p. 425). These perennial plants prefer wooded slopes or open glades in 
ponderosa pine and spruce/fir forests at elevations between 1,830 and 
2,750 m (6,000 and 9,000 ft) (New Mexico Rare Plant Technical Council 
1999, entire). New Mexico beardtongue is native to the Sacramento 
Mountains within Lincoln and Otero Counties (Sivinski and Knight 1996, 
p. 289). The plant is perennial, has purple or violet-blue flowers, and 
grows to be half a meter tall (1.9 ft). New Mexico beardtongue occurs 
in areas with loose soils or where there has been recent soil 
disturbance, such as eroded banks and pocket gopher burrows (Pittenger 
and Yori 2003, p. ii).
    The preferred adult nectar source is orange sneezeweed (Hymenoxys 
hoopesii), a native perennial forb (Service et al. 2005, p. 9). To 
contribute to the species' viability, orange sneezeweed must bloom at a 
time that corresponds with the emergence of adult Sacramento Mountains 
checkerspot butterflies. Although orange sneezeweed flowers are most 
frequently used, the butterfly has been observed collecting nectar on 
various other native nectar sources (Service et al. 2005, pp. 9-10). If 
orange sneezeweed is not blooming during the adult flight period (i.e., 
experiencing phenological mismatch), the butterfly's survival and 
fecundity could decrease.
    Before human intervention, the habitat of the Sacramento Mountains 
checkerspot butterfly was dynamic, with meadows forming and 
reconnecting due to natural wildfire regimes (Service et al. 2005, p. 
21). These patterns would have facilitated natural dispersal and 
recolonization of meadow habitats following disturbance events, 
especially when there was high butterfly population density in adjacent 
meadows (Service et al. 2005, p. 21). Currently, spruce-fir forests 
punctuate suitable butterfly habitat (i.e., mountain meadows), creating 
intrinsic barriers to butterfly dispersal and effectively isolating 
populations from one another (Pittenger and Yori 2003, p. 1). 
Preliminary genetic research suggested there is extremely low gene flow 
across the species' range or between meadows surveyed (Ryan 2021, pers. 
comm.). If new sites are to become colonized or recolonized by the 
butterfly, meadow areas will need to be connected enough to allow 
dispersal from occupied areas. Therefore, habitat connectivity is 
needed for genetically healthy populations across the species' range 
(Service 2022, p. 11).
    We have determined that the following physical or biological 
features are essential to the conservation of the Sacramento Mountains 
checkerspot butterfly:
    (1) Open meadow, grassland habitat within the larger mixed-conifer 
forest in high-altitude areas within the upper-montane and subalpine 
zones at elevations between 2,380 and 2,750 meters (m) (7,800 and 9,000 
feet (ft))

[[Page 54267]]

within the Sacramento Mountains of southern New Mexico.
    (2) The larval food plant (host plant), primarily New Mexico 
beardtongue (Penstemon neomexicanus), or other potential host plants 
such as other Penstemon species and tobacco root (Valeriana edulis), is 
present as:
    (a) Patches of plants clustered together;
    (b) Large, robust individual plants; and/or
    (c) Stands of plants adjacent to other tobacco root plants.
    (3) Access to nectar sources, primarily orange sneezeweed 
(Hymenoxys hoopesii), native Asteraceae species, and other native 
flowering plants.
    (4) Habitat connectivity consisting of up to 890 m (2,920 ft) 
between populations or areas of suitable habitat to allow for dispersal 
and gene flow.
    (5) Less than 5 percent canopy cover.

Special Management Considerations or Protection

    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 which are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    A detailed discussion of activities influencing the Sacramento 
Mountains checkerspot butterfly and its habitat can be found in the 
proposed listing rule (87 FR 3739; January 25, 2022). It is possible 
all areas of critical habitat may require some level of management to 
address the current and future threats to the physical or biological 
features. The features essential to the conservation of this species 
may require special management considerations or protection to reduce 
the following threats: incompatible grazing by large ungulates, 
recreation, invasive and nonnative plants, climate change (i.e., 
drought, altered precipitation regime), and altered fire regime. 
Management activities that could ameliorate these threats include, but 
are not limited to, erecting exclosures or other methods to remove 
browse pressure from large ungulates; growing and transplanting nectar 
sources, including orange sneezeweed, New Mexico beardtongue, and other 
native nectar sources; managing invasive plant species; reducing 
recreational use; and instituting fire management aimed at reducing 
tree stocking within forested areas surrounding meadows. These 
management activities may protect the physical or biological features 
for the species by improving and protecting suitable habitat and 
connectivity throughout the range of the butterfly.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are proposing to designate 
critical habitat in areas within the geographical area occupied by the 
species at the time of listing. We also are proposing to designate 
specific areas outside the geographical area occupied by the species 
because we have determined that a designation limited to occupied areas 
would be inadequate to ensure the conservation of the species. Occupied 
areas are inadequate for the conservation of this species because the 
species needs to have sufficient quality and quantity of habitat for 
adequately resilient populations, numerous populations to create 
redundancy to survive catastrophic events, and enough genetic diversity 
to allow for adaptations to changing environmental conditions 
(representation) to achieve viability. Currently, the Sacramento 
Mountains checkerspot butterfly is extant in two locations, 
representing only two metapopulation units, which is insufficient to 
support a robust, functioning metapopulation structure and, therefore, 
the viability of the species. We are reasonably certain that the 
unoccupied areas will contribute to the conservation of the species and 
contain one or more of the physical or biological features and are, 
therefore, considered habitat for the species. Additionally, the 
unoccupied units qualify as ``habitat'' for the species because they 
contain the resources necessary (i.e., open meadow, grassland habitat 
with nectar sources) to support the life processes of the Sacramento 
Mountains checkerspot butterfly.
    To identify critical habitat units for the Sacramento Mountains 
checkerspot butterfly, we used a variety of sources for species data. 
We used literature published on the species (Ferris and Holland 1980, 
entire; Forest Service 1999, entire; Pittenger and Yori 2003, entire) 
and the conservation plan developed by the Service (2005, entire) to 
determine habitat needs and locations of the butterfly. We also relied 
on annual Forest Service survey reports and data collected between 1999 
and 2020 (Forest Service 1999, entire; Forest Service 2017, entire; 
Forest Service 2020a, entire) and associated mapping data (Forest 
Service 2020b, unpaginated) provided by the Forest Service for areas 
currently occupied by the Sacramento Mountains checkerspot butterfly 
and areas surveyed regularly. We supplemented this information with 
expert knowledge gathered during the development of the current 
condition assessment report (Service 2022, entire).
    We determined that an area (in this case a meadow) was occupied at 
the time of listing for Sacramento Mountains checkerspot butterfly if:
    (1) The meadow is located within the historical range of the 
species;
    (2) The meadow contains at least physical or biological features 
(1) through (3), and (5), as described above under Summary of Essential 
Physical or Biological Features;
    (3) Adults have been observed during surveys from 3 or more of the 
most recent consecutive years (2021 and earlier); and
    (4) There is evidence of reproduction during one of the three most 
recent consecutive surveys (2021 and earlier).
    Therefore, if meadows do not meet these criteria, we determined 
that those areas were unoccupied at the time of listing. The sources of 
data for our occupied proposed critical habitat units for the 
Sacramento Mountains checkerspot butterfly were the original digitized 
polygons provided by the Forest Service.
    For areas outside the geographical area occupied by the species at 
the time of listing, we delineated critical habitat unit boundaries 
using the original digitized polygons provided by the Forest Service 
and the 2020 National Agricultural Imagery Program (NAIP) 0.6-meter 
imagery. We resampled the NAIP imagery to 1 meter using ESRI ArcGIS Pro 
and classified that data into two classes: open space or tree cover. We 
were then able to identify areas that had greater than 95 percent open 
canopy, as required by the species. Using the Focal Statistics results 
(95-100 percent) as a guide, we digitized new polygons at the 1:5000 
scale and updated the original Forest Service polygons to include and 
connect areas that meet the definition of critical habitat for the 
Sacramento Mountains checkerspot butterfly.
    In summary, for areas outside the geographical area occupied by the 
species at the time of listing, we delineated critical habitat unit 
boundaries using the following criteria:

[[Page 54268]]

    (1) Areas within the historical range of the species (i.e., areas 
where the butterfly was detected by Forest Service surveys, but not 
necessarily in the past 3 consecutive years).
    (2) Areas with 95 percent or greater open canopy.
    (3) Areas not currently occupied but presumed to be suitable 
habitat because they contain at least some of the essential physical or 
biological features.
    (4) Habitat that provides connectivity due to its proximity between 
currently occupied and/or unoccupied areas.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features necessary for the Sacramento Mountains 
checkerspot butterfly. 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 developed lands. Any such lands 
inadvertently left inside critical habitat boundaries shown on the maps 
of this proposed rule have been excluded by text in the proposed rule 
and are not proposed for designation as critical habitat. Therefore, if 
the critical habitat is finalized as proposed, a Federal action 
involving these lands would 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.
    We propose to designate as critical habitat lands that we have 
determined are occupied at the time of listing (i.e., currently 
occupied) and that contain one or more of the physical or biological 
features that are essential to support life-history processes of the 
species. We have determined that occupied areas are inadequate to 
ensure the conservation of the species. Therefore, we have also 
identified, and propose for designation as critical habitat, unoccupied 
areas that are essential for the conservation of the species.
    Units are proposed for designation based on one or more of the 
physical or biological features being present to support the Sacramento 
Mountains checkerspot butterfly's life-history processes. Some units 
contain all of the identified physical or biological features and 
support multiple life-history processes. Some units contain only some 
of the physical or biological features necessary to support the 
Sacramento Mountains checkerspot butterfly's particular use of that 
habitat.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document under Proposed Regulation Promulgation. 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 each map is based available 
to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-
2023-0023 and on our internet site https://www.fws.gov/about/region/southwest.

Proposed Critical Habitat Designation

    We are proposing nine units as critical habitat for the Sacramento 
Mountains checkerspot butterfly. The critical habitat areas we describe 
below constitute our current best assessment of areas that meet the 
definition of critical habitat for the Sacramento Mountains checkerspot 
butterfly. The nine areas we propose as critical habitat are: (1) 
Bailey Canyon; (2) Pines Meadow Campground; (3) Spud Patch Canyon; (4) 
Silver Springs Canyon; (5) Horse Pasture Meadow; (6) Sleepygrass 
Canyon; (7) Pumphouse Canyon; (8) Deerhead Canyon; and (9) Cox Canyon. 
Table 1 shows the proposed critical habitat units, the approximate 
area, land ownership, and occupancy of each unit.

                                 Table 1--Proposed Critical Habitat Units for Sacramento Mountains Checkerspot Butterfly
                [Area estimates reflect all land within critical habitat unit boundaries, including areas being considered for exclusion]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Land ownership * acres  (hectares)
                 Unit name                              Occupied             ---------------------------------------------------------       Total
                                                                                   Federal             Tribal            Private
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Bailey Canyon..........................  Yes.............................       200.5 (81.1)  .................  .................       200.5 (81.1)
2. Pines Meadow Campground................  Yes.............................        62.2 (25.2)  .................         0.2 (0.08)        62.4 (25.2)
3. Spud Patch Canyon......................  No..............................       203.9 (82.5)         22.4 (9.1)        50.9 (20.6)      277.2 (112.2)
4. Silver Springs Canyon..................  No..............................       132.9 (53.8)  .................        70.5 (28.5)       203.4 (82.3)
5. Horse Pasture Meadow...................  No..............................        82.4 (33.4)  .................  .................        82.4 (33.4)
6. Sleepygrass Canyon.....................  No..............................       123.5 (50.0)  .................       100.0 (40.5)       223.5 (90.5)
7. Pumphouse Canyon.......................  No..............................       134.4 (54.4)  .................          2.2 (0.9)       136.6 (55.3)
8. Deerhead Canyon........................  No..............................         22.1 (8.9)  .................         11.0 (4.5)        33.1 (13.4)
9. Cox Canyon.............................  No..............................       132.1 (53.5)  .................      285.7 (115.6)      417.8 (169.0)
                                                                             ---------------------------------------------------------------------------
    Total.................................  ................................            1,093.9               22.4              520.5            1,636.9
                                                                                        (442.7)              (9.1)            (210.6)            (662.4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* 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 Sacramento Mountains 
checkerspot butterfly, below. All areas in the unoccupied units (Units 
3 through 9) meet the definition of critical habitat because they are 
outside the geographical area occupied by the species at the time of 
listing, were historically occupied by the Sacramento Mountains 
checkerspot butterfly, and are essential for the conservation of the 
species (see each unit description below for details). Units 3 through 
9 qualify as habitat for the species because they contain the resources 
necessary (i.e., open meadow, grassland habitat with nectar sources) to 
support the life processes of the Sacramento Mountains checkerspot 
butterfly. The Forest Service is assessing the unoccupied meadows to 
prioritize them for habitat restoration efforts that would benefit the 
Sacramento Mountains checkerspot butterfly. Once restored, these areas 
will be used to establish future occupancy via translocations and 
reintroductions. Establishing new populations in suitable habitat 
through captive rearing

[[Page 54269]]

and reintroduction or translocation is part of our recovery planning 
efforts for the Sacramento Mountains checkerspot butterfly. Individuals 
from extant meadows (Bailey Canyon and Pines Meadow Campground) may be 
translocated to currently unoccupied meadows once they contain suitable 
habitat. Additionally, captive rearing efforts are ongoing from which 
we plan to reintroduction individuals to restored meadows. We are 
reasonably certain that these areas will contribute to the conservation 
of the Sacramento Mountains checkerspot butterfly because these areas 
were historically occupied by the species and, since the species is 
currently restricted to two canyon systems, it is necessary to expand 
the existing population into other areas to reach recovery. 
Furthermore, we are working closely with the Forest Service, where a 
majority of the proposed critical habitat falls on Forest Service-
managed lands, to ensure conservation measures and habitat restoration 
are conducted and ongoing in all areas possible to support the species 
for translocations and reintroductions. Additionally, the threats 
specified in each unit (see descriptions below), can be managed in ways 
to ensure survival and future reproduction of reintroduced populations. 
Site-specific reasons that we are reasonably certain that each area 
will contribute to the conservation of the species are explained below.

Unit 1: Bailey Canyon

    Unit 1 consists of approximately 200.5 ac (81.1 ha) and is in the 
Sacramento Ranger District in the northwestern portion of the 
butterfly's range. The unit is occupied and is located entirely on the 
Lincoln National Forest. This unit contains physical or biological 
features (1) through (3) and (5), as described above under Summary of 
Essential Physical or Biological Features.
    Threats that are occurring in this area include incompatible 
grazing by large ungulates, recreation, invasive and nonnative plants, 
climate change, and altered fire regime. The Forest Service is actively 
managing this unit by surveying for the butterfly during the active 
period, erecting exclosures to allow habitat to recover, and planting 
New Mexico beardtongue and other native nectar sources. This unit may 
require special management considerations to control invasive plant 
species, reduce recreational use, and reduce or remove browse pressure 
from large ungulates.

Unit 2: Pines Meadow Campground

    Unit 2 consists of approximately 62.4 ac (25.2 ha) and is located 
in the northwestern portion of the butterfly's range. The unit is 
primarily in the Sacramento Ranger District. The unit is occupied and 
contains all of the physical or biological features described above 
under Summary of Essential Physical or Biological Features.
    Threats that are occurring in this area include incompatible 
grazing by large ungulates, recreation, invasive and nonnative plants, 
climate change, and altered fire regime. The Forest Service is actively 
managing some areas of this unit by surveying for the butterfly during 
the species' active period and erecting exclosures to allow habitat to 
recover. This unit may require special management considerations to 
control invasive plant species, reduce recreational use, and reduce or 
remove browse pressure from f large ungulates.

Unit 3: Spud Patch Canyon

    Unit 3 consists of a total of approximately 277.2 ac (112.2 ha) and 
is located in the northeastern portion of the butterfly's historical 
range. The unit is primarily within the Sacramento Ranger District. 
This unit contains physical or biological features (1) through (3) and 
(5), as described above under Summary of Essential Physical or 
Biological Features. This unit is unoccupied and is essential for the 
conservation of the species because it contains most of the physical or 
biological features essential to the species and was historically 
occupied by the species. This unit would provide a suitable 
reintroduction site for the species and once established, would 
increase the species redundancy and representation by serving as a 
separate source population should any catastrophic events impact the 
other meadows proposed for designation as critical habitat. The Forest 
Service is currently conducting riparian restoration in this area, 
which will help expand and revitalize habitat for the Sacramento 
Mountains checkerspot butterfly through the reestablishment of native 
plant species. Because this unit is mostly located on Federal land and 
would contribute to metapopulation dynamics and genetic rescue should a 
population be reestablished, we are reasonably certain that the unit 
will contribute to the conservation of the species.
    Threats that are occurring in this area include incompatible 
grazing by large ungulates, recreation, invasive and nonnative plants, 
climate change, and altered fire regime. The Forest Service is 
surveying for adult butterflies annually in some of the areas on the 
Lincoln National Forest in this unit. Within this unit, a total of 22.4 
ac (9.1 ha) of land owned by the Mescalero Apache Tribe is being 
considered for exclusion.

Unit 4: Silver Springs Canyon

    Unit 4 consists of approximately 203.4 ac (82.3 ha) in the north-
central portion of the butterfly's historical range and lies to the 
northeast of the village of Cloudcroft. The unit is partly within the 
Sacramento Ranger District and is unoccupied. This unit contains 
physical or biological features (1), (3), and (5), as described above 
under Summary of Essential Physical or Biological Features. This unit 
is essential for the conservation of the species because it contains 
most of the physical or biological features essential to the 
conservation of the species and would increase species redundancy and 
representation by serving as a separate population from the other 
meadows proposed for designation as critical habitat if a population is 
reestablished in this areas in the future, contributing to 
metapopulation dynamics while enhancing connectivity between meadows 
with recently detected butterflies and meadows that contain suitable 
habitat. Because this unit is primarily on federally owned lands and 
abuts areas that are currently occupied by the Sacramento Mountains 
checkerspot butterfly, we are reasonably certain that the unit will 
contribute to the conservation of the species.
    Threats that are occurring in this area include incompatible 
grazing by large ungulates, recreation, invasive and nonnative plants, 
climate change, and altered fire regime. The Forest Service is also 
surveying the areas on the Lincoln National Forest in this unit 
annually for adult butterflies.

Unit 5: Horse Pasture Meadow

    Unit 5 consists of approximately 82.4 ac (33.4 ha) and is located 
in the central portion of the butterfly's historical range. It lies to 
the east of the village of Cloudcroft. This unit is unoccupied, 
contains all of the physical or biological features described above 
under Summary of Essential Physical or Biological Features, and is 
entirely on the Lincoln National Forest in the Sacramento Ranger 
District. This unit is essential for the conservation of the species 
because it contains all of the physical or biological features 
essential to the conservation of the species and would increase species 
redundancy by serving as a separate population from other meadows 
proposed for designation as critical habitat should a

[[Page 54270]]

population be reestablished in this area in the future, contributing to 
metapopulation dynamics while enhancing connectivity between meadows 
with recently detected butterflies and meadows that contain suitable 
habitat. Because this unit abuts an area that is currently occupied by 
the Sacramento Mountains checkerspot butterfly, we are reasonably 
certain that the unit will contribute to the conservation of the 
species.
    Threats that are occurring in this area include incompatible 
grazing by large ungulates, recreation, invasive and nonnative plants, 
climate change, and altered fire regime. Suitable habitat in Horse 
Pasture Meadow was previously eliminated by logging to create a 
helicopter pad. The butterfly has not been detected in this unit since 
construction of the helicopter pad, which was constructed for 
helicopters that transport people and supplies to fight forest fires. 
The helicopter pad is no longer there, and there is open meadow 
habitat. This unit has been somewhat revegetated, and New Mexico 
beardtongue and nectar sources now exist in this area. Additional 
habitat restoration techniques could be used to restore butterfly 
habitat in this area. Forest Service is planning to actively manage 
this former habitat to encourage species recovery.

Unit 6: Sleepygrass Canyon

    Unit 6 consists of approximately 223.5 ac (90.5 ha) and is located 
in the central portion of the butterfly's historical range, east of the 
village of Cloudcroft. This unit is unoccupied; 55.3 percent of the 
unit is located on the Lincoln National Forest in the Sacramento Ranger 
District, and 44.7 percent is located on privately owned land. This 
unit contains all of the physical or biological features described 
above under Summary of Essential Physical or Biological Features. This 
unit is essential for the conservation of the species because it 
contains all of the physical or biological features and would increase 
species redundancy by serving as a separate population from other 
meadows proposed for designation as critical habitat should a 
population be reestablished in this area in the future, while enhancing 
connectivity between meadows with recently detected butterflies and 
meadows that contain suitable habitat. Because this unit would 
contribute to metapopulation dynamics should a population be 
reestablished, is located partially on Federal land, and abuts two 
other areas that contain several of the essential physical or 
biological features for the Sacramento Mountains checkerspot butterfly, 
we are reasonably certain that the unit will contribute to the 
conservation of the species.
    Threats that are occurring in this area include incompatible 
grazing by large ungulates, recreation, invasive and nonnative plants, 
climate change, and altered fire regime. Forest Service is surveying 
areas on the Lincoln National Forest in this unit annually for adult 
butterflies.

Unit 7: Pumphouse Canyon

    Unit 7 consists of a total of approximately 136.6 ac (55.3 ha) and 
is located in the southern portion of the butterfly's range, southeast 
of the village of Cloudcroft. The unit is unoccupied and contains 
physical or biological features (1) through (3) and (5), as described 
above under Summary of Essential Physical or Biological Features. This 
unit is essential for the conservation of the species because it 
contains several of the physical or biological features essential to 
the conservation of the species and would increase species redundancy 
and representation by, while enhancing connectivity between meadows 
with recently detected butterflies and meadows that contain suitable 
habitat, and serving as a separate population from other meadows 
proposed for designation as critical habitat should a population be 
reestablished in this area in the future. Because this unit abuts an 
area that contains several of the essential physical or biological 
features for the Sacramento Mountains checkerspot butterfly, and is 
located mostly on Federal lands, we are reasonably certain that the 
unit will contribute to the conservation of the species.
    A portion of this unit is part of an active grazing allotment. The 
Forest Service consults on active grazing allotment permits every 5 
years. Threats that are occurring in this area include incompatible 
grazing by large ungulates (including livestock), recreation, invasive 
and nonnative plants, climate change, and altered fire regime. The 
Forest Service restored this area using invasive species management, 
and native habitat has already been established. The Forest Service is 
also surveying the portions of this unit located on the Lincoln 
National Forest for adult butterflies annually.

Unit 8: Deerhead Canyon

    Unit 8 consists of approximately 33.1 ac (13.4 ha) and is southeast 
of the village of Cloudcroft in the southern portion of the butterfly's 
historical range. This unit is unoccupied and contains physical or 
biological features (1) through (3) and (5), as described above under 
Summary of Essential Physical or Biological Features. This unit is 
essential for the conservation of the species because it contains most 
of the physical or biological features essential to the conservation of 
the species, and would increase species redundancy and representation 
by serving as a separate source population should any catastrophic 
events impact the other meadows proposed for designation as critical 
habitat should a population be reestablished in this area in the 
future, while enhancing connectivity between meadows with suitable 
habitat. Because this unit is mostly located on Federal land and would 
contribute to metapopulation dynamics and genetic rescue if a 
population were to be reestablished in this area, we are reasonably 
certain that the unit will contribute to the conservation of the 
species.
    Threats that are occurring in this area include incompatible 
grazing by large ungulates, recreation, invasive and nonnative plants, 
climate change, and altered fire regime. The Forest Service is 
surveying the portions of this unit on the Lincoln National Forest for 
adult butterflies annually.

Unit 9: Cox Canyon

    Unit 9 consists of approximately 417.8 ac (169.0 ha) and is located 
in the southern portion of the butterfly's historical range, south of 
the village of Cloudcroft. This unit is unoccupied; 31.62 percent is 
located on the Lincoln National Forest, and 68.38 percent is located on 
privately owned land. This unit contains physical or biological 
features (1) through (3) and (5), as described above under Summary of 
Essential Physical or Biological Features. This unit is essential for 
the conservation of the species because it contains most of the 
physical or biological features essential to the conservation of the 
species and would increase species redundancy and representation by 
serving as a separate source population from other meadows proposed for 
designation as critical habitat if a population were to be 
reestablished here, while enhancing connectivity between meadows with 
recently detected butterflies and meadows that contain suitable 
habitat. Because this unit would contribute to metapopulation dynamics 
should a population be reestablished, we are reasonably certain that 
the unit will contribute to the conservation of the species.
    Threats that are occurring in this area include incompatible 
grazing by large ungulates, recreation, invasive and

[[Page 54271]]

nonnative plants, climate change, and altered fire regime. Forest 
Service is surveying the portions of this unit on the Lincoln National 
Forest for adult butterflies annually.

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 proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed 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, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2) is documented 
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 Service 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 set forth requirements for Federal 
agencies to reinitiate consultation on previously reviewed actions. 
These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation: (a) if the amount or extent of 
taking specified in the incidental take statement is exceeded; (b) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (c) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion or written 
concurrence; or (d) if a new species is listed or critical habitat 
designated that may be affected by the identified action. The 
reinitiation requirement applies only to actions that remain subject to 
some discretionary Federal involvement or control. As provided in 50 
CFR 402.16, the requirement to reinitiate consultations for new species 
listings or critical habitat designation does not apply to certain 
agency actions (e.g., land management plans issued by the Bureau of 
Land Management in certain circumstances.

Application of the ``Destruction or Adverse Modification'' Standard

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat for the 
conservation of the listed species. As discussed above, the role of 
critical habitat is to support the physical or biological features 
essential to the conservation of a listed species 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 violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that we may, during a consultation under section 7(a)(2) 
of the Act, consider likely to destroy or adversely modify critical 
habitat include, but are not limited to:
    (1) Actions that would remove or alter Sacramento Mountains 
checkerspot butterfly's native food plants (New Mexico beardtongue, 
orange sneezeweed, and other native nectar sources), or tobacco root. 
Such activities could include, but are not limited to, grading, 
leveling, plowing, mowing, burning, herbicide or pesticide spraying, 
incompatible grazing, or otherwise disturbing non-forested openings 
that result in the death of or injury to eggs, larvae, or adult 
Sacramento Mountains checkerspot butterflies. These activities could 
significantly impair or eliminate the habitat necessary for the taxon's 
breeding, foraging, sheltering, or other essential life functions.
    (2) Actions that would alter the soil structure on which native 
food plants are dependent. Such activities could include, but are not 
limited to, erosion control activities, such as the installation of 
structures or vegetation and grading for construction purposes. These 
activities could significantly impair or eliminate the habitat that is 
essential for the survival and reproduction of Sacramento Mountains 
checkerspot butterfly's native food plants.

[[Page 54272]]

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 geographical areas owned or controlled by the Department 
of Defense (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act Improvement Act of 1997 (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 proposed for 
designation. No DoD lands with a completed INRMP are within the 
proposed critical habitat designation.

Consideration of Impacts Under 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 designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. Exclusion decisions are governed by the regulations at 50 CFR 
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of 
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226, 
February 11, 2016), both of which were developed jointly with the 
National Marine Fisheries Service (NMFS). We also refer to a 2008 
Department of the Interior Solicitor's opinion entitled, ``The 
Secretary's Authority to Exclude Areas from a Critical Habitat 
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016).
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise discretion to exclude the area only if such exclusion would 
not result in the extinction of the species. In making the 
determination to exclude a particular area, 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. In our final rules, we explain any decision to exclude 
areas, as well as decisions not to exclude, to demonstrate that the 
decision is reasonable. We describe below the process that we use for 
taking into consideration each category of impacts and any initial 
analyses of the relevant impacts.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). Therefore, the baseline represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat 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 would not be expected 
without 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 use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary 4(b)(2) 
exclusion analysis.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities 
Section 3(f) of E.O. 12866 identifies four criteria when a regulation 
is considered a ``significant regulatory action'' and requires 
additional analysis, review, and approval if met. The criterion 
relevant here is whether the designation of critical habitat may have 
an economic effect of $200 million or more in any given year (section 
3(f)(1)). Therefore, our consideration of economic impacts uses a 
screening analysis to assess whether a designation of critical habitat 
for Sacramento Mountains checkerspot butterfly is likely to exceed the 
economically significant threshold.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the Sacramento Mountains checkerspot butterfly 
(IEc 2023, entire). We began by conducting a screening analysis of the 
proposed designation of critical habitat in order to focus our analysis 
on the key factors that are likely to result in incremental economic 
impacts. The purpose of the screening analysis is to filter out 
particular geographical areas of critical habitat that are already 
subject to such protections and are, therefore, unlikely to incur 
incremental economic impacts. In particular, the screening analysis 
considers baseline costs (i.e., absent critical habitat designation) 
and includes any probable incremental economic impacts where land and 
water use may already be subject to conservation plans, land management 
plans, best management practices, or regulations that protect the 
habitat area as a result of the Federal listing status of the species. 
Ultimately, the screening analysis allows us to focus our analysis on 
evaluating the specific areas or sectors that may incur probable 
incremental economic impacts as a result of the designation.

[[Page 54273]]

    The presence of the listed species in occupied areas of critical 
habitat means that any destruction or adverse modification of those 
areas is also likely to jeopardize the continued existence of the 
species. Therefore, designating occupied areas as critical habitat 
typically causes little if any incremental impact above and beyond the 
impact of listing the species. As a result, we generally focus the 
screening analysis on areas of unoccupied critical habitat (unoccupied 
units or unoccupied areas within occupied units). Overall, the 
screening analysis assesses whether designation of critical habitat is 
likely to result in any additional management or conservation efforts 
that may incur incremental economic impacts. This screening analysis 
combined with the information contained in our IEM constitute what we 
consider to be our draft economic analysis (DEA) of the proposed 
critical habitat designation for the Sacramento Mountains checkerspot 
butterfly; our DEA is summarized in the narrative below.
    As part of our screening analysis, we considered the types of 
economic activities that are likely to occur within the areas likely 
affected by the critical habitat designation. In our evaluation of the 
probable incremental economic impacts that may result from the proposed 
designation of critical habitat for the Sacramento Mountains 
checkerspot butterfly, first we identified, in the IEM dated November 
3, 2022, probable incremental economic impacts associated with the 
following categories of activities: (1) Fire management (i.e., fuels 
reduction projects, controlled burns); (2) habitat restoration (i.e., 
growing and planting native plants, building and maintaining 
exclosures, selective watering); (3) erosion control; (4) invasive 
plant management; (5) recreation management; (6) road construction and 
maintenance; and (7) grazing. We considered each industry or category 
individually. Additionally, we considered whether their activities have 
any Federal involvement. Critical habitat designation generally will 
not affect activities that do not have any Federal involvement; under 
the Act, designation of critical habitat affects only activities 
conducted, funded, permitted, or authorized by Federal agencies. In 
areas where the Sacramento Mountains checkerspot butterfly is present, 
Federal agencies are already required to consult with the Service under 
section 7 of the Act on activities they fund, permit, or implement that 
may affect the species. If we finalize this proposed critical habitat 
designation, Federal agencies would be required to consider the effects 
of their actions on the designated habitat, and if the Federal action 
may affect critical habitat, our consultations will include an 
evaluation of measures to avoid the destruction or adverse modification 
of critical habitat.
    In our IEM, we attempted to clarify the distinction between the 
effects that would result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the 
Sacramento Mountains checkerspot butterfly's critical habitat. The IEM 
outlines our rationale concerning this limited distinction between 
baseline conservation efforts and incremental impacts of the 
designation of critical habitat for this species. This evaluation of 
the incremental effects has been used as the basis to evaluate the 
probable incremental economic impacts of this proposed designation of 
critical habitat.
    The proposed critical habitat designation for the Sacramento 
Mountains checkerspot butterfly includes approximately 1,636.9 acres 
(662.4 hectares) in nine units in Otero County, New Mexico. Two of the 
units are occupied, and seven of the units are unoccupied, by the 
Sacramento Mountains checkerspot butterfly. The unoccupied areas 
comprise 84 percent of the total proposed critical habitat area. 
Approximately 32 percent of the total proposed designation is located 
on private lands, 67 percent on Federal lands, and 1 percent on Tribal 
lands.
    For the areas that are occupied by the species (16 percent of the 
proposed critical habitat designation), the economic impacts of 
designating critical habitat under section 7 of the Act are likely 
limited to additional administrative efforts to consider adverse 
modification under section 7. This is because any activities occurring 
in these areas and that require Federal approval or funding will be 
subject to section 7 consultation requirements regardless of critical 
habitat designation because the species may be present and any 
recommended project modifications to avoid adversely modifying critical 
habitat are the same as those needed to avoid jeopardizing the species.
    For the areas unoccupied by the species (84 percent of the proposed 
critical habitat designation), incremental section 7 costs may include 
the administrative costs of consultation, as well as the costs of 
developing and implementing conservation measures for the species. This 
may include invasive species management activities, feral horse/large 
ungulate management activities (including fencing), and other land 
management activities by the Forest Service on the Lincoln National 
Forest. On private lands, consultation activities and related 
conservation actions are anticipated to be limited. Because a portion 
of Unit 3 (Spud Patch Canyon) is on Mescalero Apache Tribal land, we 
are considering that area for exclusion. Therefore, the probable 
economic impact may be less than anticipated for this unit.
    The overall incremental costs of critical habitat designation for 
the Sacramento Mountains checkerspot butterfly are anticipated to be 
less than $117,000 per year during the next 10 years. In total, fewer 
than one programmatic consultation, one formal consultation, two 
informal consultations, and six technical assistance efforts are 
anticipated to occur annually in proposed critical habitat areas. The 
incremental administrative costs of consultations are approximately 
$32,000 per year (2022 dollars). Project modifications in unoccupied 
habitat for the Sacramento Mountains checkerspot butterfly have the 
potential to increase conservation in these areas, resulting in an 
incremental benefit. Data limitations preclude our ability to monetize 
these benefits; however, project modifications are unlikely to exceed 
$200 million in a given year. Data limitations impede our ability to 
confidently estimate the total incremental costs of establishing 
critical habitat for the Sacramento Mountains checkerspot butterfly. 
However, available information suggests it is unlikely that the 
incremental costs will reach $200 million in a given year based on the 
estimated annual number of consultations and per-unit consultation 
costs. The designation is unlikely to trigger additional requirements 
under State or local regulations and is not expected to affect property 
values.
    We are soliciting data and comments from the public on the DEA 
discussed above. During the development of a final designation, we will 
consider the information presented in the DEA and any additional 
information on economic impacts we receive during the public comment 
period to determine whether any specific areas should be excluded from 
the final critical habitat designation under the authority of section 
4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and 
the 2016 Policy. We may exclude an area from critical habitat if we 
determine that the benefits of excluding the area outweigh the benefits 
of including the area, provided the exclusion will not result in the 
extinction of this species.

[[Page 54274]]

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), then national-security 
or homeland-security concerns are not a factor in the process of 
determining what areas meet the definition of ``critical habitat.'' 
However, the Service must still consider impacts on national security, 
including homeland security, on those lands or areas not covered by 
section 4(a)(3)(B)(i) because section 4(b)(2) requires the Service to 
consider those impacts whenever it designates critical habitat. 
Accordingly, if DoD, Department of Homeland Security (DHS), or another 
Federal agency has requested exclusion based on an assertion of 
national-security or homeland-security concerns, or we have otherwise 
identified national-security or homeland-security impacts from 
designating particular areas as critical habitat, we generally have 
reason to consider excluding those areas.
    However, we cannot automatically exclude requested areas. When DoD, 
DHS, or another Federal agency requests exclusion from critical habitat 
on the basis of national-security or homeland-security impacts, we must 
conduct an exclusion analysis if the Federal requester provides 
information, including a reasonably specific justification of an 
incremental impact on national security that would result from the 
designation of that specific area as critical habitat. That 
justification could include demonstration of probable impacts, such as 
impacts to ongoing border-security patrols and surveillance activities, 
or a delay in training or facility construction, as a result of 
compliance with section 7(a)(2) of the Act. If the agency requesting 
the exclusion does not provide us with a reasonably specific 
justification, we will contact the agency to recommend that it provide 
a specific justification or clarification of its concerns relative to 
the probable incremental impact that could result from the designation. 
If we conduct an exclusion analysis because the agency provides a 
reasonably specific justification or because we decide to exercise the 
discretion to conduct an exclusion analysis, we will defer to the 
expert judgment of DoD, DHS, or another Federal agency as to: (1) 
Whether activities on its lands or waters, or its activities on other 
lands or waters, have national-security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected in 
the absence of an exclusion. In that circumstance, in conducting a 
discretionary section 4(b)(2) exclusion analysis, we will give great 
weight to national-security and homeland-security concerns in analyzing 
the benefits of exclusion.
    In preparing this proposal, we have determined that the lands 
within the proposed designation of critical habitat for the Sacramento 
Mountains checkerspot butterfly are not owned or managed by the DoD or 
DHS, and, therefore, we anticipate no impact on national security or 
homeland security.

Consideration of 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 discussed above. To identify other relevant impacts that may 
affect the exclusion analysis, we consider a number of factors, 
including whether there are permitted conservation plans covering the 
species in the area--such as HCPs, safe harbor agreements (SHAs), or 
candidate conservation agreements with assurances (CCAAs)--or whether 
there are non-permitted conservation agreements and partnerships that 
may be impaired by designation of, or exclusion from, critical habitat. 
In addition, we look at whether Tribal conservation plans or 
partnerships, Tribal resources, or government-to-government 
relationships of the United States with Tribal entities may be affected 
by the designation. We also consider any State, local, social, or other 
impacts that might occur because of the designation.
    When analyzing other relevant impacts of including a particular 
area in a designation of critical habitat, we weigh those impacts 
relative to the conservation value of the particular area. To determine 
the conservation value of designating a particular area, we consider a 
number of factors, including, but not limited to, the additional 
regulatory benefits that the area would receive due to the protection 
from destruction or adverse modification as a result of actions with a 
Federal nexus, the educational benefits of mapping essential habitat 
for recovery of the listed species, and any benefits that may result 
from a designation due to State or Federal laws that may apply to 
critical habitat.
    In the case of the Sacramento Mountains checkerspot butterfly, the 
benefits of critical habitat include public awareness of the presence 
of the Sacramento Mountains checkerspot butterfly and the importance of 
habitat protection, and, where a Federal nexus exists, increased 
habitat protection for the Sacramento Mountains checkerspot butterfly 
due to protection from destruction or adverse modification of critical 
habitat. Continued implementation of an ongoing management plan that 
provides conservation equal to or more than the protections that result 
from a critical habitat designation would reduce those benefits of 
including that specific area in the critical habitat designation.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.
Tribal Lands
    Several Executive Orders, Secretary's Orders, and policies concern 
working with Tribes. These guidance documents generally confirm our 
trust responsibilities to Tribes, recognize that Tribes have sovereign 
authority to control Tribal lands, emphasize the importance of 
developing partnerships with Tribal governments, and direct the Service 
to consult with Tribes on a government-to-government basis.
    A joint Secretary's Order that applies to both the Service and 
NMFS--Secretary's Order 3206, American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 
1997) (S.O. 3206)--is the most comprehensive of the various guidance 
documents related to Tribal relationships and Act implementation, and 
it provides the most detail directly relevant to the designation of 
critical habitat. In addition to the general direction discussed above, 
the appendix to S.O. 3206 explicitly recognizes the right of Tribes to 
participate fully in any listing process that may affect Tribal rights 
or Tribal trust resources; this includes the designation of critical 
habitat. Section 3(B)(4) of the appendix requires the Service to 
consult with affected Tribes, ``when considering the designation of 
critical habitat in an area that may impact Tribal trust resources, 
Tribally-

[[Page 54275]]

owned fee lands, or the exercise of Tribal rights.'' That provision 
also instructs the Service to avoid including Tribal lands within a 
critical habitat designation unless the area is essential to conserve a 
listed species, and it requires the Service to ``evaluate and document 
the extent to which the conservation needs of the listed species can be 
achieved by limiting the designation to other lands.''
    Our implementing regulations at 50 CFR 424.19 and the 2016 Policy 
are consistent with S.O. 3206. When we undertake a discretionary 
exclusion analysis under section 4(b)(2) of the Act, in accordance with 
S.O. 3206, we consult with any Tribe whose Tribal trust resources, 
tribally owned fee lands, or Tribal rights may be affected by including 
any particular areas in the designation. We evaluate the extent to 
which the conservation needs of the species can be achieved by limiting 
the designation to other areas and give great weight to Tribal concerns 
in analyzing the benefits of exclusion.
    However, S.O. 3206 does not override the Act's statutory 
requirement of designation of critical habitat. As stated above, we 
must consult with any Tribe when a designation of critical habitat may 
affect Tribal lands or resources. The Act requires us to identify areas 
that meet the definition of ``critical habitat'' (i.e., areas occupied 
at the time of listing that contain the essential physical or 
biological features that may require special management considerations 
or protection and unoccupied areas that are essential to the 
conservation of a species), without regard to land ownership. While 
S.O. 3206 provides important direction, it expressly states that it 
does not modify the Secretary's statutory authority under the Act or 
other statutes. The proposed critical habitat designation includes 
Mescalero Apache Tribal lands.
    Mescalero Apache Tribal Resources--The Mescalero Apache Tribe owns 
22.4 ac (9.1 ha) of land in the Spud Patch Canyon Unit (Unit 3). The 
Mescalero Apache Tribe does not have any conservation plans regarding 
the Sacramento Mountains checkerspot butterfly. We solicited 
information from the Mescalero Apache Tribe within the range of the 
Sacramento Mountains checkerspot butterfly to inform the development of 
the current condition assessment report, but we did not receive a 
response. We also provided the Mescalero Apache Tribe the opportunity 
to review a draft of the current condition assessment report and 
provide input prior to making our final determination on the status of 
the Sacramento Mountains checkerspot butterfly. The Mescalero Apache 
Tribe is a valued partner in endangered species conservation within the 
State of New Mexico. We have recently invited the Mescalero Apache 
Tribe to participate in conducting surveys for the Sacramento Mountains 
checkerspot butterfly on Forest Service land. We recognize and endorse 
their fundamental right to provide for Tribal resource management 
activities and we will continue to coordinate with the Mescalero Apache 
Tribe on this rulemaking.

Summary of Exclusions Considered Under 4(b)(2) of the Act

    We are considering excluding the following areas under section 
4(b)(2) of the Act from the final critical habitat designation for the 
Sacramento Mountains checkerspot butterfly: 22.4 ac (9.1 ha) of land 
owned by the Mescalero Apache Tribe in Unit 3 of the Spud Patch Canyon 
Unit based on Tribal resources and government-to-government 
relationships of the United States with Tribal entities. We 
specifically solicit comments on the inclusion or exclusion of such 
areas. If through this proposed rule's public comment period (see 
DATES, above) we receive information that we determine indicates that 
there are potential economic, national security, or other relevant 
impacts from designating particular areas as critical habitat, then as 
part of developing the final designation of critical habitat, we will 
evaluate that information and may conduct a discretionary exclusion 
analysis to determine whether to exclude those areas under authority of 
section 4(b)(2) of the Act and our implementing regulations at 50 CFR 
424.19. If we receive a request for exclusion of a particular area and 
after evaluation of supporting information we do not exclude, we will 
fully describe our decision in the final rule for this action.

Required Determinations

Clarity of the Rule

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

Regulatory Planning and Review--Executive Orders 12866, 13563, and 
14094

    Executive Order 14094 reaffirms the principles of E.O. 12866 and 
E.O. 13563 and states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and are consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. 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 final rule in a manner consistent with 
these requirements.
    E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides 
that the Office of Information and Regulatory Affairs (OIRA) in the 
Office of Management and Budget (OMB) will review all significant 
rules. OIRA has determined that this rule is not significant.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not

[[Page 54276]]

have a significant economic impact on a substantial number of small 
entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine whether potential 
economic impacts to these small entities are significant, we considered 
the types of activities that might trigger regulatory impacts under 
this designation as well as types of project modifications that may 
result. In general, the term ``significant economic impact'' is meant 
to apply to a typical small business firm's business operations.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies to evaluate the potential impacts to indirectly 
regulated entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried out by the agency is not 
likely to destroy or adversely modify critical habitat. Therefore, 
under section 7, only Federal action agencies are directly subject to 
the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies would be directly 
regulated if we adopt the proposed critical habitat designation. The 
RFA does not require evaluation of the potential impacts to entities 
not directly regulated. Moreover, Federal agencies are not small 
entities. Therefore, because no small entities would be directly 
regulated by this rulemaking, the Service certifies that, if made final 
as proposed, the proposed critical habitat designation will not have a 
significant economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if made final, the proposed 
critical habitat designation will not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial 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. In our economic analysis, we did not find that this 
proposed critical habitat designation would 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 finding:
    (1) This proposed rule would 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 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 are not likely to 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 would 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. Therefore, a small government agency plan 
is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the Sacramento Mountains checkerspot butterfly in a takings 
implications assessment. The Act does not authorize the Service to 
regulate private actions on private lands or confiscate private 
property as a result of critical habitat designation. Designation of 
critical

[[Page 54277]]

habitat does not affect land ownership, or establish any closures, or 
restrictions on use of or access to the designated areas. Furthermore, 
the designation of critical habitat does not affect landowner actions 
that do not require Federal funding or permits, nor does it preclude 
development of habitat conservation programs or issuance of incidental 
take permits to permit actions that do require Federal funding or 
permits to go forward. However, Federal agencies are prohibited from 
carrying out, funding, or authorizing actions that would destroy or 
adversely modify critical habitat. A takings implications assessment 
has been completed for the proposed designation of critical habitat for 
the Sacramento Mountains checkerspot butterfly, and it concludes that, 
if adopted, this designation of critical habitat does not pose 
significant takings implications for lands within or affected by the 
designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A federalism summary impact 
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 proposed critical habitat designation 
with, appropriate State resource agencies. From a federalism 
perspective, the designation of critical habitat directly affects only 
the responsibilities of Federal agencies. The Act imposes no other 
duties with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the proposed rule does 
not have substantial direct effects either on the States, or on the 
relationship between the Federal government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The proposed designation may have some benefit to these 
governments because the areas that contain the features essential to 
the conservation of the species are more clearly defined, and the 
physical or biological features of the habitat necessary for 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 State and local 
governments in long-range planning because they no longer have to 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) of the Act would 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 E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule would not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Act. To assist the public in 
understanding the habitat needs of the species, this proposed rule 
identifies the physical or biological features essential to the 
conservation of the species. The proposed areas of critical habitat are 
presented on maps, and the proposed 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 information collection requirements, and 
a submission to OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor, 
and you are 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.)

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations. In a line of cases starting with Douglas County 
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this 
position.
    However, when any of the areas that meet the definition of 
``critical habitat'' for the species are in States within the Tenth 
Circuit, such as that of the Sacramento Mountains checkerspot 
butterfly, we undertake a NEPA analysis for that critical habitat 
designation consistent with 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 invite the public to comment on the extent to 
which this proposed critical habitat designation may have a significant 
impact on the human environment or fall within one of the categorical 
exclusions for actions that have no individual or cumulative effect on 
the quality of the human environment. We will complete our analysis, in 
compliance with NEPA, before finalizing this proposed rule.

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), E.O. 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 federally recognized Tribes on a 
government-to-government basis. In accordance with Secretary's 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 solicited information from the Mescalero Apache Nation 
within the range of the Sacramento Mountains checkerspot butterfly to 
inform the development of the current condition assessment report, but 
we did not receive a response. We will continue to work with Tribal 
entities during the development of a final rule for the designation of 
critical habitat for the Sacramento Mountains checkerspot butterfly.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the New Mexico Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish

[[Page 54278]]

and Wildlife Service's Species Assessment Team and the New Mexico 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. In Sec.  17.95, amend paragraph (i) by adding an entry for 
``Sacramento Mountains Checkerspot Butterfly (Euphydryas anicia 
cloudcrofti)'' following the entry for ``Quino Checkerspot Butterfly 
(Euphydryas editha quino)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *
Sacramento Mountains Checkerspot Butterfly (Euphydryas anicia 
cloudcrofti)
    (1) Critical habitat units are depicted for Otero County, New 
Mexico, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the Sacramento Mountains checkerspot 
butterfly consist of the following components:
    (i) Open meadow, grassland habitat within the larger mixed-conifer 
forest in high-altitude areas within the upper-montane and subalpine 
zones at elevations between 2,380 and 2,750 meters (m) (7,800 and 9,000 
feet (ft)) within the Sacramento Mountains of southern New Mexico.
    (ii) The larval food plant (host plant), primarily New Mexico 
beardtongue (Penstemon neomexicanus), or other potential host plants 
such as other Penstemon species and tobacco root (Valeriana edulis), is 
present as:
    (A) Patches of plants clustered together;
    (B) Large, robust individual plants; and/or
    (C) Stands of plants adjacent to other tobacco root plants.
    (iii) Access to nectar sources, primarily orange sneezeweed 
(Hymenoxis hoopesii), native Asteraceae species, and other native 
flowering plants.
    (iv) Habitat connectivity consisting of less than 890 m (2,920 ft) 
between populations or areas of suitable habitat to allow for dispersal 
and gene flow.
    (v) Less than 5 percent canopy cover.
    (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 
the effective date of the final rule.
    (4) Data layers defining map units were created using U.S. 
Department of Agriculture, Forest Service shapefiles delimiting the 
known range of the species based on surveys. Then additional areas were 
mapped using satellite imagery of meadow habitat within the appropriate 
elevation (2,380 to 2,750 m (7,800 to 9,000 feet)). The maps in this 
entry, as modified by any accompanying regulatory text, establish the 
boundaries of the critical habitat designation. The coordinates or plot 
points or both on which each map is based are available to the public 
at the Service's internet site at https://www.fws.gov/about/region/southwest, at https://www.regulations.gov at Docket No. FWS-R2-ES-2023-
0023, and at the field office responsible for this designation. 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) Index map follows:

Figure 1 to Sacramento Mountains Checkerspot Butterfly (Euphydryas 
anicia cloudcrofti) paragraph (5)
BILLING CODE 4333-15-P

[[Page 54279]]

[GRAPHIC] [TIFF OMITTED] TP10AU23.000

    (6) Unit 1: Bailey Canyon; Otero County, New Mexico.
    (i) Unit 1 consists of 200.5 ac (81.1 ha) in Otero County and is 
composed of lands entirely in Federal ownership.
    (ii) Map of Unit 1 follows:

Figure 2 to Sacramento Mountains Checkerspot Butterfly (Euphydryas 
anicia cloudcrofti) paragraph (6)(ii)

[[Page 54280]]

[GRAPHIC] [TIFF OMITTED] TP10AU23.001

    (7) Unit 2: Pines Meadow Campground; Otero County, New Mexico.
    (i) Unit 2 consists of 62.4 ac (25.2 ha) in Otero County and is 
composed of lands in Federal (62.2 ac (25.2 ha)) and private (0.2 ac 
(0.08 ha)) ownership.
    (ii) Map of Unit 2 follows:

Figure 3 to Sacramento Mountains Checkerspot Butterfly (Euphydryas 
anicia cloudcrofti) paragraph (7)(ii)

[[Page 54281]]

[GRAPHIC] [TIFF OMITTED] TP10AU23.002

    (8) Unit 3: Spud Patch Canyon; Otero County, New Mexico.
    (i) Unit 3 consists of 277.2 ac (112.2 ha) in Otero County and is 
composed of lands in Federal (203.9 ac (82.5 ha)), Tribal (22.4 ac (9.1 
ha)), and private (50.9 ac (20.6 ha)) ownership.
    (ii) Map of Unit 3 follows:

Figure 4 to Sacramento Mountains checkerspot butterfly (Euphydryas 
anicia cloudcrofti) paragraph (8)(ii)

[[Page 54282]]

[GRAPHIC] [TIFF OMITTED] TP10AU23.003

    (9) Unit 4: Silver Springs Canyon; Otero County, New Mexico.
    (i) Unit 4 consists of 203.4 ac (82.3 ha) in Otero County and is 
composed of lands in Federal (132.9 ac (53.8 ha)) and private (70.5 ac 
(28.5 ha)) ownership.
    (ii) Map of Unit 4 follows:

Figure 5 to Sacramento Mountains checkerspot butterfly (Euphydryas 
anicia cloudcrofti) paragraph (9)(ii)

[[Page 54283]]

[GRAPHIC] [TIFF OMITTED] TP10AU23.004

    (10) Unit 5: Horse Pasture Meadow; Otero County, New Mexico.
    (i) Unit 5 consists of 82.4 ac (33.4 ha) in Otero County and is 
composed of lands entirely in Federal ownership.
    (ii) Map of Unit 5 follows:

Figure 6 to Sacramento Mountains checkerspot butterfly (Euphydryas 
anicia cloudcrofti) paragraph (10)(ii)

[[Page 54284]]

[GRAPHIC] [TIFF OMITTED] TP10AU23.005

    (11) Unit 6: Sleepygrass Canyon; Otero County, New Mexico.
    (i) Unit 6 consists of 223.5 ac (90.5 ha) in Otero County and is 
composed of lands in Federal (123.5 ac (50.0 ha)) and private (100.0 ac 
(40.5 ha)) ownership.
    (ii) Map of Unit 6 follows:

Figure 7 to Sacramento Mountains checkerspot butterfly (Euphydryas 
anicia cloudcrofti) paragraph (11)(ii)

[[Page 54285]]

[GRAPHIC] [TIFF OMITTED] TP10AU23.006

    (12) Unit 7: Pumphouse Canyon; Otero County, New Mexico.
    (i) Unit 7 consists of 136.6 ac (55.3 ha) in Otero County and is 
composed of lands in Federal (134.4 ac (54.4 ha)) and private (2.2 ac 
(0.9 ha)) ownership.
    (ii) Map of Unit 7 follows:

Figure 8 to Sacramento Mountains checkerspot butterfly (Euphydryas 
anicia cloudcrofti) paragraph (12)(ii)

[[Page 54286]]

[GRAPHIC] [TIFF OMITTED] TP10AU23.007

    (13) Unit 8: Deerhead Canyon; Otero County, New Mexico.
    (i) Unit 8 consists of 33.1 ac (13.4 ha) in Otero County and is 
composed of lands in Federal (22.1 ac (8.9 ha)) and private (11.0 ac 
(4.5 ha)) ownership.
    (ii) Map of Unit 8 follows:

Figure 9 to Sacramento Mountains checkerspot butterfly (Euphydryas 
anicia cloudcrofti) paragraph (13)(ii)

[[Page 54287]]

[GRAPHIC] [TIFF OMITTED] TP10AU23.008

    (14) Unit 9: Cox Canyon; Otero County, New Mexico.
    (i) Unit 9 consists of 417.8 ac (169.0 ha) in Otero County and is 
composed of lands in Federal (132.1 ac (53.5 ha)) and private (285.7 ac 
(115.6 ha)) ownership.
    (ii) Map of Unit 9 follows:

Figure 10 to Sacramento Mountains checkerspot butterfly (Euphydryas 
anicia cloudcrofti) paragraph (14)(ii)

[[Page 54288]]

[GRAPHIC] [TIFF OMITTED] TP10AU23.009

* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-16967 Filed 8-9-23; 8:45 am]
BILLING CODE 4333-15-C