[Federal Register Volume 79, Number 67 (Tuesday, April 8, 2014)]
[Proposed Rules]
[Pages 19307-19313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-07629]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0014; 4500030113]
RIN 1018-AZ32


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the New Mexico Meadow Jumping Mouse

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 June 20, 2013, proposed 
designation of critical habitat for the New Mexico meadow jumping mouse 
(Zapus hudsonius luteus) 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, as well as an amended required determinations of the 
proposal. We are reopening the comment period to allow all interested 
parties an opportunity to comment simultaneously on the proposed 
critical habitat rule, the associated draft economic analysis and draft 
environmental assessment, and the amended required determinations 
section. Comments previously submitted need not be resubmitted, as they 
will be fully considered in preparation of the final rule.

DATES: The comment due date for the proposed rule published in the 
Federal Register on June 20, 2013 (78 FR 37328) is extended. We will 
consider comments received or postmarked on or before May 8, 2014. 
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: 
    Document availability: You may obtain copies of the proposed rule 
and the associated documents of the draft economic analysis and draft 
environmental assessment on the internet at http://www.regulations.gov 
at Docket No. FWS-R2-ES-2013-0014 or by mail from the New Mexico 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Written comments: 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 critical habitat proposal 
and associated draft economic analysis and draft environmental 
assessment by searching for FWS-R2-ES-2013-0014, which is the docket 
for the critical habitat rulemaking.
    (2) By hard copy: Submit comments on the critical habitat proposal 
and associated draft economic analysis and draft environmental 
assessment by U.S. mail or hand-delivery to: Public Comments 
Processing, Attn: FWS-R2-ES-2013-0014; Division of Policy and 
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 ``J'' 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: 

[[Page 19308]]

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed designation of critical habitat 
for the New Mexico meadow jumping mouse that was published in the 
Federal Register on June 20, 2013 (78 FR 37328), our draft economic 
analysis, the draft environmental assessment, and the amended required 
determinations provided in this document. We will consider information 
and recommendations from all interested parties. We are particularly 
interested in comments concerning:
    (1) 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 may not be 
prudent.
    (2) Specific information on:
    (a) The distribution of the New Mexico meadow jumping mouse;
    (b) The amount and distribution of New Mexico meadow jumping mouse 
habitat;
    (c) 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 critical habitat designation and why; and
    (d) What areas not occupied at the time of listing are essential to 
the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their probable impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the New Mexico meadow jumping mouse and proposed 
critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, the benefits of including or excluding 
areas that exhibit these impacts.
    (6) Information on the extent to which the description of 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.
    (7) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the associated documents of the 
draft economic analysis, 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.
    (8) Whether any 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.
    (9) 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.
    If you submitted comments or information on the proposed rule 
during the initial comment period from June 20, 2013, to August 19, 
2013, please do not resubmit them. We have incorporated them into the 
public record and will fully consider them in the preparation of our 
final determination. Our final determination will take into 
consideration all written comments and any additional information we 
receive during both comment periods. On the basis of public comments, 
we may, during the development of our final determination, find that 
areas proposed as critical habitat are not essential, are appropriate 
for exclusion under section 4(b)(2) of the Act, or are not appropriate 
for exclusion.
    You may submit your comments and materials concerning the proposed 
rule, draft economic analysis, or draft environmental assessment by one 
of the methods listed in ADDRESSES. We request that you send comments 
only by the methods described in ADDRESSES.
    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 
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 in preparing the proposed rule, draft economic 
analysis, and draft environmental assessment, will be available for 
public inspection on http://www.regulations.gov at Docket No. FWS-R2-
ES-2013-0014 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).

Background

    On June 20, 2013, we published in the Federal Register a proposed 
rule to list the New Mexico meadow jumping mouse as endangered (78 FR 
37363) and designate critical habitat (78 FR 37328). For more 
information on the species and the species' habitat, refer to the May 
2013 Draft Species Status Assessment Report for the New Mexico Meadow 
Jumping Mouse (SSA Report; Service 2013), available online at http://www.regulations.gov in Docket No. FWS-R2-ES-2013-0023 in association 
with the proposed listing rule. We proposed to designate approximately 
310.5 kilometers (km) (193.1 miles (mi)) (5,892 hectares (ha) (14,560 
acres (ac)) in eight units as critical habitat within Bernalillo, 
Colfax, Mora, Otero, Rio Arriba, Sandoval, and Socorro Counties, in New 
Mexico; Las Animas, Archuleta, and La Plata Counties, Colorado; and 
Greenlee and Apache Counties, Arizona. Those proposals had 60-day 
comment periods, ending August 19, 2013. We will publish in the Federal 
Register a final listing for the New Mexico meadow jumping mouse on or 
before June 20, 2014.

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.

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

[[Page 19309]]

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 that 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. In the case of 
the New Mexico meadow jumping mouse, the benefits of critical habitat 
include public awareness of the presence of the New Mexico meadow 
jumping mouse and the importance of habitat protection, and, where a 
Federal nexus exists, increased habitat protection for the New Mexico 
meadow jumping mouse due to protection from adverse modification or 
destruction of critical habitat. In practice, situations with a Federal 
nexus exist primarily on Federal lands or for projects undertaken by 
Federal agencies.
    We are considering exclusion of the proposed critical habitat areas 
on Isleta Pueblo and Ohkay Owingeh to the extent consistent with the 
requirements of section 4(b)(2) of the Act. Areas owned by Isleta 
Pueblo that we are considering for exclusion from the final critical 
habitat designation include 43 ha (105 ac) along 3.7 km (2.3 mi) of 
ditches, canals, and marshes in Subunit 6-A. Areas owned by Ohkay 
Owingeh that we are considering for exclusion from the final critical 
habitat designation include 51 ha (125 ac) along 4.8 km (3.0 mi) of 
ditches, canals, and marshes in Subunit 6-B.
    For the reasons described below, the Service is considering these 
lands for exclusion under section 4(b)(2) of the Act. We sent 
notification letters in November 2011 to both Tribes describing our 
listing and critical habitat designation process, and we have engaged 
in conversations with both Tribes about the proposed rules to the 
extent possible without disclosing predecisional information. At their 
invitation, on August 14, 2013, we attended a coordination meeting with 
the Isleta Pueblo to discuss the proposed rules, and they provided 
additional information regarding their land management practices and 
the potential for developing an endangered species management plan. The 
Isleta Pueblo has conducted a variety of voluntary measures, 
restoration projects, and management actions to conserve riparian 
vegetation, including not allowing cattle to graze within the bosque 
(riparian areas) and protecting riparian habitat from fire, maintaining 
native vegetation, and preventing habitat fragmentation (Service 2005; 
70 FR 60955; Pueblo of Isleta 2005, entire). Since the meeting, Isleta 
Pueblo indicated that they intend to amend their riverine management 
plan for the Rio Grande silvery minnow (Hybognathus amarus) and 
southwestern willow flycatcher (Empidonax traillii extimus), which will 
address and contribute to the conservation of the New Mexico meadow 
jumping mouse (Pueblo of Isleta 2013, entire).
    Ohkay Owingeh has conducted a variety of voluntary measures, 
restoration projects, and management actions to conserve the New Mexico 
meadow jumping mouse and its habitat on their lands. The Pueblo has 
engaged in riparian vegetation and wetland improvement projects, while 
managing to reduce the occurrence of wildfire due to the abundance of 
exotic flammable riparian vegetation, including using Tribal Wildlife 
Grants in both 2004 and 2006 to restore riparian and wetland habitat to 
benefit the southwestern willow flycatcher, bald eagle (Haliaeetus 
leucocephalus), and other riparian species on 36.4 ha (90 ac) of the 
Rio Grande (Service 2007a, p. 42; Service 2005, 70 FR 60963). Funding 
for another 10.9 ha (27 ac) of riparian and wetland restoration was 
provided in 2007 (Service 2012f, p. 12). The Pueblo received an 
additional Tribal Wildlife Grant in 2011 to conduct surveys and restore 
habitat for the New Mexico meadow jumping mouse (Service 2012f, p. 12). 
The long-term goal of the Pueblo's riparian management is to implement 
innovative restoration techniques, decrease fire hazards by restoring 
native vegetation, share information with other restoration 
practitioners, utilize restoration projects in the education of the 
Tribal community and surrounding community, and provide a working and 
training environment for the people of the Pueblo. Ohkay Owingeh 
indicated that they intend to use their Riparian and Bosque Habitat 
Restoration and Management Plan to maintain dense wetland vegetation 
and moist soil conditions to provide suitable habitat for the 
conservation of the New Mexico meadow jumping mouse (Ohkay Owingeh 
2013, entire).
    In addition to these management plans under development by the 
tribes, the Service also is considering exclusion of these tribal lands 
on the basis of the working relationship we have established. We are 
aware that designation of critical habitat on tribal lands is generally 
viewed as an intrusion on their sovereign abilities to manage natural 
resources in accordance with their own policies, customs, and laws. To 
this end, we have received public comments indicating that tribes 
prefer to work with us on a Government-to-Government basis. Therefore, 
we are considering exclusion of these tribal lands in critical habitat 
Subunits 6-A and 6-B to maintain our working relationships with the 
tribes.
    A final determination on whether the Secretary will exercise her 
discretion to exclude any of these areas from critical habitat for the 
New Mexico meadow jumping mouse will be made when we publish the final 
rule designating critical habitat. We will take into account public 
comments and carefully weigh the benefits of exclusion versus inclusion 
of these areas. The potential benefits of designating critical habitat 
include: (1) Triggering consultation under section 7 of the Act in new 
areas for actions in which there may be a Federal nexus where it would 
not otherwise occur because, for example, it is unoccupied or the 
occupancy is in question; (2) focusing conservation activities on the 
most essential features and areas; (3) providing educational benefits 
to State or county governments or private entities; and (4) preventing 
people from causing inadvertent harm to the species. In practice, 
situations with a Federal nexus exist primarily on Federal lands or for 
projects funded or undertaken by Federal agencies.
    However, the final decision on whether to exclude any areas will be 
based on the best scientific data available 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 concerning the proposed 
critical habitat designation, which is now available for

[[Page 19310]]

review and comment (see ADDRESSES section).

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 
proposed 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). The baseline, 
therefore, 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 an optional section 4(b)(2) exclusion analysis.
    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 New Mexico meadow jumping mouse. 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 the geographic areas in which the 
critical habitat designation is unlikely to result in probable 
incremental economic impacts. In particular, the screening analysis 
considers baseline costs (i.e., absent critical habitat designation) 
and includes probable economic impacts where land and water use may 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. The screening analysis 
filters out particular areas of critical habitat that are already 
subject to such protections and are, therefore, unlikely to incur 
incremental economic impacts. The screening analysis also assesses 
whether units are unoccupied by the species and may require additional 
management or conservation efforts as a result of the critical habitat 
designation for the species, which may incur incremental economic 
impacts. This screening analysis combined with the information 
contained in our IEM are what we consider our draft economic analysis 
of the proposed critical habitat designation for the New Mexico meadow 
jumping mouse, and this information is summarized in the narrative 
below.
    Executive Orders 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 regulatory analysis requirements of the executive orders, our 
effects analysis under the Act may take into consideration impacts to 
both directly and indirectly impacted entities, where practicable and 
reasonable. We assess to the extent practicable, the probable impacts, 
if sufficient data are available, to both directly and indirectly 
impacted entities. 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 New Mexico meadow 
jumping mouse, first we identified, in the IEM dated July 8, 2013, 
probable incremental economic impacts associated with the following 
categories of activities: riparian habitat restoration, fire management 
plans, fire suppression, fuel reduction treatments, forest plans, 
livestock grazing allotment management plans, travel management plans 
recreational use (with U.S. Forest Service), water management and 
delivery (with Bureau of Reclamation, Army Corps of Engineers, and Fish 
and Wildlife Service), bridge and road realignment projects (Federal 
Highways Administration), National Wildlife Refuge planning and 
projects, beaver management (Department of Agriculture's Animal and 
Plant Health Inspection Service), and restoration or recovery 
activities that may affect this species.
    We considered each industry or category individually. Additionally, 
we 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 New Mexico meadow jumping mouse is 
present, Federal agencies would already be 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, consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
consultation process.
    In our IEM, we attempted to clarify the distinction between the 
effects that will result from the species being listed and those 
attributable to the critical habitat designation (i.e., the difference 
between the jeopardy and adverse modification standards) for the New 
Mexico meadow jumping mouse's critical habitat. The designation of 
critical habitat for New Mexico meadow jumping mouse was proposed 
concurrently with the listing. In our experience with such simultaneous 
rulemaking actions, discerning which conservation efforts are 
attributable to the species being listed and those which will result 
solely from the designation of critical habitat is difficult. However, 
the following specific circumstances in this case help to inform our 
evaluation: (1) The essential physical and biological features 
identified for critical habitat are the same features essential for the 
life requisites of the species, and (2) any actions that would result 
in sufficient harm or harassment to constitute

[[Page 19311]]

jeopardy to the New Mexico meadow jumping mouse would also likely 
adversely affect the essential physical and biological features of 
critical habitat. The IEM outlines our rationale concerning 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 New Mexico meadow 
jumping mouse is approximately 310.5 river km (193.1 river mi) (5,892 
ha (14,560 ac)) in eight units as critical habitat. Some of these 
eights units are divided into subunits. There are a total of 23 units 
plus subunits encompassed by the 8 main units. We consider the 29 
locations where the jumping mouse has been found since 2005 to be 
within the geographic area occupied at the time of listing (occupied 
areas). All of these 29 occupied locations are contained within 19 of 
the 23 proposed critical habitats units. Approximately 1 percent (59.7 
ha (147.5 ac)) of the proposed critical habitat is currently occupied 
by the species. Four of the proposed units are completely unoccupied: 
3-C Rio de las Vacas, 4-B Upper Rio Pe[ntilde]asco, 6-A Isleta Pueblo, 
and 6-B Ohkay Owingeh. The remaining 5,832.1 ha (14,411.5 ac), 
approximately 99 percent of the total proposed critical habitat 
designation, are currently unoccupied by the species, but are essential 
for the conservation of the species.
    Because the main factor making the New Mexico jumping mouse 
vulnerable to extinction is the loss of suitable habitat, proposed 
critical habitat units must be protected and allowed to regrow the 
needed vegetation for suitable New Mexico jumping mouse habitat, 
particularly those that contain unoccupied areas. Because the jumping 
mouse populations are currently small and isolated from one another, 
the survival and recovery of the species will require expanding the 
size of currently occupied areas containing suitable habitat into 
currently unoccupied areas that need to reestablish suitable 
conditions. Regeneration of suitable habitat in these areas will 
involve modifying or limiting actions that preclude the development of 
PCEs (i.e., modifying proposed actions in order to allow appropriate 
vegetation to regrow) that make up suitable habitat.
    During section 7 consultation for unoccupied areas, we would expect 
some conservation measures to be implemented to avoid destruction or 
adverse modification. As a result, we anticipate the most probable 
incremental economic impacts would be associated with developing and 
implementing conservation measures within unoccupied areas because no 
section 7 consultation would have likely occurred without the critical 
habitat designation. Incremental costs would be both administrative 
costs and the actual costs for implementing measures needed to avoid 
adverse modification in unoccupied areas. Therefore, we anticipate 
incremental effects with regard to ongoing and proposed Federal 
actions, including developing and implementing conservation measures 
that may differ between currently occupied and unoccupied critical 
habitat and habitat for the jumping mouse.
    In the case of the jumping mouse, we anticipate that additional 
project modifications as a result of designating critical habitat are 
predictable because: (1) The majority of each proposed critical habitat 
unit is considered unoccupied by the species; and (2) the New Mexico 
jumping mouse is intimately tied to its habitat such that any potential 
project modifications to avoid adverse modification of unoccupied 
critical habitat would likely differ substantially from those that are 
likely to be required to avoid jeopardizing this species. This 
difference in anticipated project modifications results from the 
difference in the riparian vegetation within occupied and unoccupied 
areas within units. The unoccupied areas of proposed critical habitat 
do not presently contain suitable habitat. All of these completely or 
partially unoccupied areas currently contain flowing water that is 
required for future regeneration of the physical and biological 
features of habitat required to sustain the species' life-history 
processes. These unoccupied areas will require reestablishment of the 
primary constituent elements (PCEs), and are essential to the 
conservation of the mouse because having multiple local populations 
within each critical habitat unit is the best defense against local 
extirpation and complete extinction. There is nothing to indicate that 
the situation will improve without significant conservation 
intervention focused on allowing the currently lacking physical 
features related to the wetland vegetation to regrow (either naturally 
or through management or protection) into suitable habitat. For 
example, reestablishing PCEs can likely be accomplished from mowing at 
different times of the year, fencing riparian areas, or changing the 
livestock grazing regime.
    Within the 59.7 ha (147.5 ac) currently occupied by the species, 
any actions that may affect the species or its habitat would also 
affect designated critical habitat, and it is unlikely that any 
additional conservation efforts would be recommended to address the 
adverse modification standard over and above those recommended as 
necessary to avoid jeopardizing the continued existence of the New 
Mexico meadow jumping mouse. Therefore, only administrative costs are 
expected in approximately 1 percent of the proposed critical habitat 
designation. Consequently, the majority of proposed critical habitat 
will require additional time and resources by both the Federal action 
agency and the Service.
    The most likely source of incremental effects of the proposed 
critical habitat comes from the inclusion of unoccupied areas (where 
the species historically occurred and are currently not known to 
occur). The vast majority of each of the proposed critical habitat 
units are considered unoccupied and currently contain small areas of 
suitable habitat. In the unoccupied areas, any conservation efforts or 
associated probable impacts would be considered incremental effects 
attributed to the critical habitat designation. Within the 5,832.1 ha 
(14,411.5 ac) of unoccupied critical habitat, incremental costs would 
be both administrative costs and the actual costs for implementing 
measures needed to avoid adverse modification in unoccupied areas. 
Therefore, we anticipate incremental effects with regard to ongoing and 
proposed Federal actions, including developing and implementing 
conservation measures that may differ between currently occupied and 
unoccupied critical habitat and habitat for the jumping mouse. Based on 
this rationale, we anticipate some increase in overall consultation 
workload and administrative efforts related to the designation of New 
Mexico jumping mouse critical habitat, including: (1) The potential 
increase in the number of consultations resulting from unoccupied areas 
being proposed as critical habitat; (2) initiation of consultations for 
ongoing projects to address adverse effects to critical habitat; and 
(3) possible project modification to avoid adverse modification of 
critical habitat in areas where significant alteration of habitat is 
likely or where regeneration of habitat will be precluded. 
Nevertheless, we expect the majority of this workload will be 
addressing effects to critical habitat that do not constitute adverse 
modification within unoccupied areas.

[[Page 19312]]

    Critical habitat designation for the New Mexico meadow jumping 
mouse is unlikely to generate costs exceeding $100 million in a single 
year. The total incremental section 7 costs associated with the 
proposed designation are estimated to be $19,000,000 over the next 20 
years, or $1,100,000 on an annualized basis (seven percent discount 
rate) for both administrative and conservation effort costs.
    This analysis forecasts the total number and administrative cost of 
future consultations likely to occur for grazing, transportation, 
recreation, water management, and species and habitat management 
undertaken by or permitted by Federal agencies within the study area. 
In addition, the analysis forecasts costs associated with conservation 
efforts that may be recommended in consultation for those activities 
occurring in unoccupied areas.
    In occupied areas, the economic impacts of implementing the rule 
through section 7 of the Act will most likely be limited to additional 
administrative effort to consider adverse modification. This finding is 
based on the fact that any activities with a Federal nexus occurring 
within occupied habitat will be subject to section 7 consultation 
requirements regardless of critical habitat designation, due to the 
presence of the listed species; and in most cases, project 
modifications requested to avoid adverse modification are likely to be 
the same as those needed to avoid jeopardy in occupied habitat. In 
unoccupied areas, incremental section 7 costs will include both the 
administrative costs of consultation and the costs of developing and 
implementing conservation measures needed to avoid adverse modification 
of critical habitat.
    Various economic benefits may result from the incremental 
conservation efforts identified in this analysis, including: (1) Those 
associated with the primary goal of species conservation (i.e., direct 
benefits) and (2) those additional beneficial services that derive from 
conservation efforts but are not the purpose of the Act (i.e., 
ancillary benefits). Due to existing data limitations, we are unable to 
assess the likely magnitude of these benefits.
    As we stated earlier, we are soliciting data and comments from the 
public on our consideration of economic impacts, as well as all aspects 
of the proposed critical habitat 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 
pursuant to 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 New Mexico meadow jumping mouse. In the draft 
environmental assessment, three alternatives are evaluated: Alternative 
A, the no action alternative; Alternative B, the proposed rule without 
exclusion or exemption areas; and Alternative C, the proposed rule with 
exclusion or exemption areas. The no action alternative is required by 
NEPA for comparison to the other alternatives analyzed in the draft 
environmental assessment. The no action alternative is equivalent to no 
designation of critical habitat for the New Mexico meadow jumping 
mouse. Under Alternative B, critical habitat would be designated, as 
proposed, with no exclusions. Under Alternative C, critical habitat 
would be designated; however, tribal lands on Isleta Pueblo and Ohkay 
Owingeh would be excluded from critical habitat designation. Our 
preliminary determination is that designation of critical habitat for 
the New Mexico meadow jumping mouse will not have direct impacts on the 
environment. However, we will further evaluate this issue as we 
complete our final environmental assessment.

Required Determinations--Amended

    In our June 20, 2013, proposed rule to designate critical habitat 
(78 FR 37328), we indicated that we would defer our determination of 
compliance with several statutes and executive orders until we had 
evaluated the probable effects on landowners and stakeholders and the 
resulting probable economic impacts of the designation. Following our 
evaluation of the probable incremental economic impacts resulting from 
the designation of critical habitat for the New Mexico meadow jumping 
mouse, we have amended or affirmed our determinations below. 
Specifically, 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.), and the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). However, based on our evaluation of the 
probable incremental economic impacts of the proposed designation of 
critical habitat for the New Mexico meadow jumping mouse, we are 
amending our required determinations concerning the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) and E.O. 12630 (Takings), and we 
are updating our required determinations regarding NEPA and the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951).

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.
    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

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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.
    Following recent court decisions, the Service's current 
understanding of the requirements under the RFA, as amended, is that 
Federal agencies are required to evaluate the potential incremental 
impacts of rulemaking only on those entities directly regulated by the 
rulemaking itself and, therefore, are not required 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 adversely modify critical 
habitat. Under these circumstances, only Federal action agencies are 
directly subject to the specific regulatory requirement (avoiding 
destruction and adverse modification) imposed by critical habitat 
designation. Therefore, it is our position that only Federal action 
agencies will be directly regulated by this designation. Federal 
agencies are not small entities, and there is no requirement under the 
RFA to evaluate the potential impacts to entities not directly 
regulated. Therefore, because no small entities are directly regulated 
by this rulemaking, the Service certifies that, if promulgated, 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 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.

E.O. 12630 (Takings)

    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 New Mexico meadow jumping mouse in a takings 
implications assessment. As discussed above, the designation of 
critical habitat affects only Federal actions. Although private parties 
that receive Federal funding or assistance or require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency.
    The economic analysis found that no significant economic impacts 
are likely to result from the designation of critical habitat for the 
New Mexico meadow jumping mouse. Because the Act's critical habitat 
protection requirements apply only to Federal agency actions, few 
conflicts between critical habitat and private property rights should 
result from this designation. Based on information contained in the 
economic analysis assessment and described within this document, 
economic impacts to a property owner are unlikely to be of a sufficient 
magnitude to support a takings action. Therefore, the takings 
implications assessment concludes that this designation of critical 
habitat for the New Mexico meadow jumping mouse does not pose 
significant takings implications for lands within or affected by the 
proposed designation.

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses as defined by NEPA in conjunction 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 (1966)). However, 
when the range of the species includes States within the Tenth Circuit, 
such as that of the New Mexico meadow jumping mouse, 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. Our preliminary determination 
is that the designation of critical habitat for the New Mexico meadow 
jumping mouse would not have direct impacts on the environment. 
However, we will further evaluate this issue as we complete our final 
environmental assessment.

Government-to-Government Relationship With Tribes

    We sent notification letters in November 2011 to both the Isleta 
Pueblo and Ohkay Owingeh describing the exclusion process under section 
4(b)(2) of the Act, and we have engaged in conversations with both 
tribes about the proposed rule to the extent possible without 
disclosing predecisional information. We sent out notification letters 
on June 20, 2013, notifying the tribes that the proposed rule had 
published in the Federal Register to allow for the maximum time to 
submit comments. Following their invitation, we met with Isleta Pueblo 
on August 14, 2013, to discuss the proposed rule, and they provided 
additional information regarding their land management practices and 
expressed their interest in developing an endangered species management 
plan. In addition to the letters sent to Ohkay Owingeh and telephone 
conversations, Ohkay Owingeh did not request Government-to-Government 
consultations or meetings. At this time, no meetings have been 
scheduled. In addition, we sent coordination letters to the Bureau of 
Indian Affairs on September 18, 2013, seeking information for our 
economic analysis. We will continue to communicate with all affected 
tribes.

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.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: March 27, 2014.
Rachel Jacobson,
 Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-07629 Filed 4-7-14; 8:45 am]
BILLING CODE 4310-55-P