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


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

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


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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

DATES: We will consider comments received on or before March 14, 2013. 
Comments submitted electronically using the Federal eRulemaking Portal 
(see ADDRESSES section, below) must be received by 11:59 p.m. Eastern 
Time on the closing date.

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

[[Page 9877]]

Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Wally Murphy, Field Supervisor, U.S. 
Fish and Wildlife Service, New Mexico Ecological Services Field Office, 
2105 Osuna NE., Albuquerque, NM 87113; by telephone 505-346-2525; or by 
facsimile 505-346-2542. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
800-877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed listing and designation of 
critical habitat for the Jemez Mountains salamander (Plethodon 
neomexicanus) that was published in the Federal Register on September 
12, 2012 (77 FR 56482), our draft economic analysis and draft 
environmental assessment of the proposed designation, the amended 
required determinations provided in this document, and the proposed 
changes to the primary constituent elements and critical habitat units 
described in this document. We will consider information and 
recommendations from all interested parties.
    We are also notifying the public that we will publish two separate 
rules for the final listing determination and the final critical 
habitat determination for the Jemez Mountains salamander. The final 
listing rule will publish under the existing docket number, FWS-R2-ES-
2012-0063, and the final critical habitat designation will publish 
under docket number FWS-R2-ES-2013-0005.
    We will publish two separate rules because we are basically 
engaging in two separate rulemaking actions. The Secretary of the 
Interior has delegated authority to the Director of the Service to make 
determinations regarding listing species under the Act, which the Act 
requires to be based entirely on science. However, in making critical 
habitat designations, the Act requires that we consider economic 
implications as well as science, and, therefore, these rules are 
subject to a higher level of governmental review and signature. In 
addition, as the result of a 2011 settlement agreement for a 
multidistrict lawsuit regarding the listing process, we must publish 
numerous rulemaking documents on a prescribed schedule until 2017, and 
dividing this rulemaking action into two separate rules will help us 
adhere to this schedule.
    We request that you provide comments specifically on our listing 
determination under the existing docket number FWS-R2-ES-2012-0063. We 
will consider information and recommendations from all interested 
parties. We are particularly interested in comments concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and regulations that may 
be addressing those threats.
    (2) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (3) Any information on the biological or ecological requirements of 
the species, and ongoing conservation measures for the species and its 
habitat.
    (4) Current or planned activities in the areas occupied by the 
species and possible impacts of these activities on this species.
    We request that you provide comments specifically on the critical 
habitat determination under docket number FWS-R2-ES-2013-0005. We will 
consider information and recommendations from all interested parties. 
We are particularly interested in comments concerning:
    (5) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat is not 
prudent.
    (6) Specific information on:
    (a) The amount and distribution of Jemez Mountains salamander 
habitat;
    (b) What areas occupied by the species at the time of listing that 
contain features essential for the conservation of the species we 
should include in the designation and why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential to 
the conservation of the species and why.
    (7) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (8) Any foreseeable economic, national security, or other relevant 
impacts that may result from designating any area that may be included 
in the final designation. We are particularly interested in any impacts 
on small entities, and the benefits of including or excluding areas 
from the proposed designation that are subject to these impacts.
    (9) Information on the extent to which the description of economic 
impacts in the draft economic analysis is complete and accurate.
    (10) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the draft economic analysis and 
draft environmental assessment, and how the consequences of such 
reactions, if likely to occur, would relate to the conservation and 
regulatory benefits of the proposed critical habitat designation.
    (11) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you submitted comments or information on the proposed rule (77 
FR 56482; September 12, 2012) during the initial comment period from 
September 12, 2012, to November 13, 2012, please do not resubmit them. 
We will incorporate them into the public record as part of this comment 
period, and we will fully consider them in the preparation of our final 
rules.
    You may submit your comments and materials concerning the September 
12, 2012, proposed rule, the draft economic analysis, the draft 
environmental assessment, the amended required determinations provided 
in this document, or the proposed changes to the primary constituent 
elements and critical habitat units described in this document by one 
of the methods listed in the ADDRESSES section. We request that you 
send comments only by the methods described in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top

[[Page 9878]]

of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used, will be available for public inspection on 
http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0063 (for the 
proposed listing rule) and Docket No. FWS-R2-ES-2013-0005 (for the 
proposed critical habitat designation and draft economic analysis), or 
by appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, New Mexico Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT). You may obtain copies of the proposed 
rule on the Internet at http://www.regulations.gov at Docket No. FWS-
R2-ES-2012-0063 and the draft economic analysis at Docket No. FWS-R2-
ES-2013-0005, or by mail from the New Mexico Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT section).

Background

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

Critical Habitat

    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting critical habitat must consult with us on the effects of their 
proposed actions, under section 7(a)(2) of the Act.

Changes from the Previously Proposed Critical Habitat Designation

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

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

Amended Proposed Critical Habitat Units

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

[[Page 9879]]



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

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

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. We have not 
proposed to exclude any areas from critical habitat. However, the final 
decision on whether to exclude any areas will be based on the best 
scientific data at the time of the final designation, including 
information obtained during the comment period and information about 
the economic impact of designation. Accordingly, we have prepared a 
draft economic analysis and draft environmental assessment concerning 
the proposed critical habitat designation, which are available for 
review and comment (see ADDRESSES section).

Draft Economic Analysis

    The purpose of the draft economic analysis is to identify and 
analyze the potential economic impacts associated with the proposed 
critical habitat designation for the Jemez Mountains salamander. The 
draft economic analysis describes the economic impacts of all potential 
conservation efforts for the Jemez Mountains salamander; some of these 
costs will likely be incurred regardless of whether we designate 
critical habitat. The economic impact of the proposed critical habitat 
designation is analyzed by comparing scenarios both ``with critical 
habitat'' and ``without critical habitat.'' The ``without critical 
habitat'' scenario represents the baseline for the analysis, 
considering protections already in place for the species (e.g., under 
the Federal listing and other Federal, State, and local regulations). 
The baseline, therefore, represents the costs incurred regardless of 
whether critical habitat is designated. The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts are those not expected to 
occur absent the designation of critical habitat for the species. In 
other words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs; 
these are the costs we may consider in the final designation of 
critical habitat when evaluating the benefits of excluding particular 
areas under section 4(b)(2) of the Act. The analysis forecasts both 
baseline and incremental impacts likely to occur if we finalize the 
proposed critical habitat designation. For a further description of the 
methodology of the analysis, see Chapter 2, ``FRAMEWORK FOR THE 
ANALYSIS,'' of the draft economic analysis.
    The draft economic analysis provides estimated costs of the 
foreseeable potential economic impacts of the proposed critical habitat 
designation for the Jemez Mountains salamander over the next 20 years, 
which was determined to be the appropriate period for analysis because 
limited planning information is available for most activities to 
forecast activity levels for projects beyond a 20-year timeframe. It 
identifies potential incremental costs as a result of the proposed 
critical habitat designation; these are those costs attributed to 
critical habitat over and above those baseline costs attributed to 
listing.
    The draft economic analysis quantifies economic impacts of Jemez 
Mountains salamander conservation efforts associated with the following 
categories of activity: (1) Severe wildland fire, (2) fire management, 
(3) other Federal land management, (4) private development, (5) 
transportation, and (6) livestock grazing. Economic impacts are 
estimated for severe wildland fire, fire management, other Federal land 
management, livestock grazing, and transportation. No impacts are 
forecast for private development, because no projects with a Federal 
nexus were identified within the study area.
    Total present value incremental impacts are approximately $260,000 
over 20 years following the designation, assuming a 7 percent discount 
rate ($330,000 assuming a 3 percent discount rate). All incremental 
costs are administrative in nature and result from

[[Page 9880]]

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

Draft Environmental Assessment

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

Required Determinations--Amended

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

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Based on our draft economic analysis of the 
proposed designation, we provide our analysis for determining whether 
the proposed rule would result in a significant economic impact on a 
substantial number of small entities. Based on comments we receive, we 
may revise this determination as part of our final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
the Jemez Mountains salamander would affect a substantial number of 
small entities, we considered the number of small entities affected 
within particular types of economic activities, such as fire 
management, private development, transportation, and livestock grazing. 
In order to determine whether it is appropriate for our agency to 
certify that this proposed rule would not have a significant economic 
impact on a substantial number of small entities, we considered each 
industry or category individually. In estimating the numbers of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement. Critical habitat designation 
will not affect activities that do not have any Federal involvement; 
designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies. In areas where 
the Jemez Mountains salamander is present, Federal agencies already are 
required to consult with us under section 7 of the Act on activities 
they fund, permit, or implement that may affect the species. If we 
finalize this proposed critical habitat designation, consultations to 
avoid the destruction or adverse modification of critical habitat would 
be

[[Page 9881]]

incorporated into the existing consultation process.
    In the draft economic analysis, we evaluated the potential economic 
effects on small entities resulting from implementation of conservation 
actions related to the proposed designation of critical habitat for the 
Jemez Mountains salamander. The designation of critical habitat for the 
salamander is unlikely to directly affect any small entities. Ninety-
seven percent of land in the designation is Federally owned. 
Anticipated incremental impacts in proposed critical habitat are 
primarily related to consultations on fire management and other Federal 
land management activities (comprising approximately 99 percent of the 
annual anticipated incremental costs of the designation). The remaining 
forecast impacts are anticipated to be conducted for road and highway 
maintenance projects. Little to no impact to third parties is expected 
associated with these activities. For this reason, there would be 
little to no impacts to small entities as a result of critical habitat 
designation for the salamander. Please refer to the draft economic 
analysis of the proposed critical habitat designation for a more 
detailed discussion of potential economic impacts.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. For the 
above reasons and based on currently available information, we certify 
that, if promulgated, the proposed critical habitat designation would 
not have a significant economic impact on a substantial number of small 
business entities. Therefore, an initial regulatory flexibility 
analysis is not required.

Takings--Executive Order 12630

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

National Environmental Policy Act (NEPA)

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

Authors

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

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


Sec.  17.95  Critical habitat--fish and wildlife.

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

[[Page 9882]]

    (C) Burrows of rodents or large invertebrates.
* * * * *

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