[Federal Register Volume 74, Number 153 (Tuesday, August 11, 2009)]
[Proposed Rules]
[Pages 40132-40138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19024]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2009-0041] [MO-922105 0083-B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the Jemez Mountains Salamander (Plethodon 
neomexicanus) as Threatened or Endangered With Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of a status 
review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list the Jemez Mountains salamander 
(Plethodon neomexicanus) (salamander) as threatened or endangered and 
designate critical habitat under the Endangered Species Act of 1973, as 
amended. Following a review of the petition, we find that the petition 
provides substantial scientific or commercial information indicating 
that listing the Jemez Mountains salamander may be warranted. 
Therefore, with the publication of this notice, we are initiating a 
status review of the species to determine if the petitioned action is 
warranted. To ensure that the status review is comprehensive, we are 
soliciting scientific and commercial data and other information 
regarding this species. At the conclusion of this review, we will issue 
a 12-month finding to determine if the petitioned action is warranted. 
We will make a determination on critical habitat for this species if we 
initiate a listing action.

DATES: We made the finding announced in this document on August 11, 
2009. To allow us adequate time to conduct this review, we request that 
we receive information on or before October 13, 2009.

ADDRESSES: You may submit information by one of the following methods:
    <bullet<ls-thn-eq> Federal eRulemaking Portal: http://www.regulations.gov. Search for docket FWS-R2-ES-2009-0041 and then 
follow the instructions for submitting comments.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R2-ES-2009-0041; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all information received on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Information Solicited 
section below for more details).

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
New Mexico Ecological Services 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:

Information Solicited

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly commence a review of the status of the species. To 
ensure that the status review is complete and based on the best 
available scientific and commercial information, we are soliciting 
information on the status of the Jemez Mountains salamander. We request 
information from the public, other concerned governmental agencies, 
Native American Tribes, the scientific community, industry, or any 
other interested parties concerning the status of the salamander. We 
are seeking information regarding:
    (1) The historical and current status and distribution of the Jemez 
Mountains salamander, its biology and ecology, and ongoing conservation 
measures for the species and its habitat;
    (2) The species' population size and population trend;
    (3) Its taxonomy; and
    (4) Information relevant to the factors that are the basis for 
making a listing determination for a species under section 4(a) of the 
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of the species' habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence and threats to the species or its habitat.
    In this finding, we have identified gaps in the information 
provided in the petition to help to focus the public on areas where we 
would like relevant data submitted. If we determine that listing the 
Jemez Mountains salamander is warranted, we intend to propose critical 
habitat to the maximum extent prudent and determinable at the time we 
propose to list the species. Therefore, with regard to areas within the 
geographical range currently occupied by the salamander, we also 
request data and information on what may constitute physical or 
biological features essential to the conservation of the species, where 
these features are currently found, and whether any of these features 
may require special management considerations or protection. In 
addition, we request data and information regarding whether there are 
areas outside the geographical area occupied by the species that are 
essential to the conservation of the species. Please provide specific 
comments and information as to what, if any, critical habitat you think 
we should propose for designation if the species is proposed for 
listing, and why such habitat meets the requirements of the Act.
    We will base our 12-month finding on a review of the best 
scientific and commercial information available, including all 
information received during this public comment period. Please note 
that submissions merely stating support for or opposition to the action 
under consideration, without providing supporting information, although 
noted, will not be considered in making a determination, as section 
4(b)(1)(A) of the Act directs that determinations as to whether any 
species is a threatened or endangered species must be made ``solely on 
the basis of the best scientific and commercial data available.'' Based 
on the status review, we will issue a 12-month finding on the petition, 
as provided in section 4(b)(3)(B) of the Act.
    You may submit your information concerning this finding by one of 
the methods listed in the ADDRESSES section.
    If you submit information via http://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

[[Page 40133]]

guarantee that we will be able to do so. We will post all hardcopy 
submissions on http://www.regulations.gov. Please include sufficient 
information with your comments to allow us to verify any scientific or 
commercial information you include.
    Information and materials we receive, as well as supporting 
documentation we used in preparing this finding, will be available for 
public inspection on http://www.regulations.gov, or by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
New Mexico Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition and publish our notice of this 
finding promptly in the Federal Register.
    Our standard for substantial information within the Code of Federal 
Regulations (CFR) with regard to a 90-day petition finding is ``that 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted'' (50 CFR 
424.14(b)). If we find that the petition presented substantial 
information, we are required to promptly commence a review of the 
status of the species.
    On October 15, 2008, we received a petition dated October 9, 2008, 
from WildEarth Guardians requesting that the Jemez Mountains salamander 
be listed as threatened or endangered under the Act, and critical 
habitat be designated. The petition clearly identified itself as such, 
and included the requisite identification information for the 
petitioner, as required by 50 CFR 424.14(a). In a November 26, 2008, 
letter to the petitioner, we responded that we had reviewed the 
petition and determined that an emergency listing was not necessary. We 
also stated that, to the maximum extent practicable, we would address 
their petition within 90 days.

Previous Federal Actions

    We initially considered the Jemez Mountains salamander for listing 
under the Act in the early 1980s (GAO August 1993, p. 30). In December 
1982, we published a notice of review classifying the salamander as a 
Category 2 species (47 FR 58454, December 30, 1982). Category 2 status 
included those taxa for which information in the Service's possession 
indicated that a proposed listing rule was possibly appropriate, but 
for which sufficient data on biological vulnerability and threats were 
not available to support a proposed rule. On February 21, 1990, we 
received a petition to list the salamander as threatened. Subsequently, 
we published a positive 90-day finding, indicating that the petition 
contained sufficient information to suggest that listing may be 
warranted (55 FR 38342, September 18, 1990). In the candidate notice of 
review (CNOR) published on November 21, 1991, we announced the 
salamander as a Category 1 species with a ``declining'' status (56 FR 
58814). Category 1 status included those species for which the Service 
had on file substantial information regarding the species' biological 
vulnerability and threat(s) to support proposals to list them as 
endangered or threatened species. The ``declining'' status indicated 
decreasing numbers and/or increasing threats.
    On May 30, 1991, the Service, the USDA Forest Service (Forest 
Service), and the New Mexico Department of Game and Fish (NMDGF) signed 
a Memorandum of Agreement (MOA) outlining actions to be taken to 
protect the salamander and its habitat on Forest Service lands, 
including the formation of a team of agency biologists to immediately 
implement the MOA and to develop a management plan for the species. The 
management plan was to be incorporated into the Santa Fe National 
Forest Plan. On April 3, 1992, we published a 12-month finding that 
listing the salamander was not warranted because of the conservation 
measures and commitments within the MOA (59 FR 11469). In the November 
15, 1994, CNOR, we included the salamander as a Category 2 species, 
with a trend status of ``improving'' (59 FR 58982). A status of 
``improving'' indicated those species known to be increasing in numbers 
and/or whose threats to their continued existence were lessening in the 
wild.
    In the CNOR published on February 28, 1996, we announced a revised 
list of animal and plant taxa that were regarded as candidates for 
possible addition to the Lists of Endangered and Threatened Wildlife 
and Plants (61 FR 7596). The revised candidate list included only 
former Category 1 species. All former Category 2 species were dropped 
from the list in order to reduce confusion about the conservation 
status of these species, and to clarify that the Service no longer 
regarded these species as candidates for listing. Because the 
salamander was a Category 2 species, it was no longer recognized as a 
candidate species as of the February 28, 1996, CNOR.
    In January 2000, the New Mexico Endemic Salamander Team (NMEST), a 
group of interagency biologists representing NMDGF, the Service, the 
U.S. Geological Survey, and the Forest Service, finalized a Cooperative 
Management Plan for the salamander on lands administered by the Forest 
Service (Management Plan), and the agencies signed an updated 
Conservation Agreement that superseded the MOA. The stated purpose of 
the Conservation Agreement and the Management Plan was to provide for 
the long-term conservation of salamanders by reducing or removing 
threats to the species and by proactively managing their habitat (NMEST 
2000 Conservation Agreement, p. 1).
    In a Decision Notice and Finding of No Significant Impact for the 
Forest Plan Amendment for Managing Special Status Species Habitat, 
signed on December 8, 2004, the Management Plan was incorporated into 
the Santa Fe National Forest Plan.

Species Information

    The Jemez Mountains salamander is a member of the family of 
lungless salamanders (Plethodontidae), the largest family of 
salamanders. The salamander is uniformly dark brown above, with 
occasional fine gold/brassy stippling dorsally (on the back and sides) 
and is sooty gray ventrally (underside). The body form is slender and 
elongate. The salamander possesses foot webbing and a reduced fifth 
toe. The salamander was originally reported as Spelerpes multiplicatus 
(=Eurycea multiplicata) in 1913 (Degenhardt et al. 1996, p. 27); 
however, it was described as a new and distinct species (Plethodon 
neomexicanus) in 1950 (Stebbins and Riemer, pp. 73-80).
    Two species of plethodontid salamanders occur in New Mexico: The 
Jemez Mountains salamander and the Sacramento Mountains salamander 
(Aneides hardii). Molecular studies on plethodontid salamanders in 
North America indicate that western species of the genus Plethodon (the 
woodland salamanders) may be more closely related to species of the 
genus Aneides (the climbing salamanders) than to eastern species of 
Plethodon (Larson et al., 1981, p. 419; Mahoney 2001, p. 174). The 
relationship of the Jemez

[[Page 40134]]

Mountains salamander to other western plethodontids is not completely 
understood, but the salamander is considered basal (the earliest 
grouping that branches to larger groupings of relative relatedness) 
(Mahoney 2001, p. 184). No subspecies of the salamander are recognized.
    The Jemez Mountains salamander is strictly terrestrial, does not 
possess lungs, and does not require standing surface water for any life 
stage. Respiration occurs through the skin and requires a moist 
microclimate for gas exchange. Reproduction in the wild remains 
unobserved, but it is presumed that the salamander lays eggs in spaces 
underground. Fully-formed salamanders hatch from the eggs. Based on 
examination of 57 female salamanders, Williams (1978, p. 475) concluded 
that females likely lay 7 or 8 eggs every other year, either in mid-
August or, more likely, the spring after mating occurs in late July and 
August. Sexual maturity is reached at 3 to 4 years in females and 3 
years in males (Degenhardt et al. 1996, p. 28).
    The salamander occurs in the Jemez Mountains in northern New Mexico 
in Los Alamos, Rio Arriba, and Sandoval Counties. The species 
predominantly occurs in mixed-conifer forest at an elevation between 
2,200 and 2,900 meters (7,220 and 9,510 feet), consisting mainly of 
Douglas fir (Pseudotsuga menziesii), blue spruce (Picea pungens), 
Engelman spruce (Picea engelmannii), white fir (Abies concolor), limber 
pine (Pinus flexilis), and aspen (Populus tremuloides) (Degenhardt et 
al. 1996, p. 28), but occasionally can be found in Ponderosa pine 
(Pinus ponderosa) stands. The microhabitat is characterized by deep, 
igneous, subsurface rock with high soil moisture (NMEST 2000, p. 2). 
The salamander spends much of its life underground, and can be found at 
the surface when conditions are warm and wet, which is typically July 
through September, but the period may extend from May through October 
depending on conditions. When surface-active, the species is usually 
found under rocks, bark, logs, moss mats, or inside decomposing logs. 
The species is restricted to the moist habitats of the Jemez Mountains.
    A feeding habits study for the Jemez Mountains salamander was 
conducted by NMDGF in 1992. Salamander prey items were diverse in size 
and type; however, there were three categories of prey that were 
recognized as more important than the remaining groups: ants, mites, 
and beetles (Cummer 2005, p. 43). Cummer (2005, pp. 45-50) stated that 
prey specialization on any particular species of invertebrate was 
unlikely in the salamander; however, she did observe that selection of 
food appeared to not be random.
    Although the petitioner believes that the number of salamanders 
likely exceeds 10,000, we are not aware of any current information from 
which a population estimate can be made. The petitioner's population 
estimate was derived from survey efforts conducted from 1967 through 
2003; however, the petitioner acknowledges, and we agree, that these 
surveys are potentially unreliable because salamander observations are 
dependent on multiple factors, such as environmental conditions (e.g., 
temperature or moisture), detection probabilities, and time when the 
observations were made. Because of these variables, it is difficult to 
determine population size or trends. Based upon the information 
presented in the petition and in our files, we believe that a 
comprehensive assessment of all of the survey and population 
information is needed.

Five-Factor Evaluation

    Section 4 of the Act (16 U.S.C. 1533), and implementing regulations 
at 50 CFR 424, set forth the procedures for adding species to the 
Federal Lists of Endangered and Threatened Wildlife and Plants. A 
species may be determined to be an endangered or threatened species due 
to one or more of the five factors described in section 4(a)(1) of the 
Act: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.
    In making this 90-day finding, we evaluated whether information 
regarding threats to the salamander, as presented in the petition and 
other information available in our files, is substantial, thereby 
indicating that the petitioned action may be warranted. Our evaluation 
of this information is presented below.

 A. The Present or Threatened Destruction, Modification, or Curtailment 
of the Species' Habitat or Range

Information Provided in the Petition
    The petitioner asserts that the Jemez Mountains salamander or its 
habitat is threatened by the following conditions or actions: habitat 
loss and fragmentation, climate change, stand-replacing fires, fire 
suppression and rehabilitation, salvage logging, slash removal, forest 
thinning treatment projects, use and construction of roads and dams, 
chemical use, trail construction, and mining. We will address climate 
change and chemical use under Factor E.
    The petitioner contends that the main threat and cause of Jemez 
Mountains salamander habitat loss is extensive, stand-replacing fires 
(severe fires in which most mature trees are destroyed). The petitioner 
reports on land area burned during the Dome (1996), Cerro Grande 
(2000), and BMG/Lakes (2002) wildfires. Information in our files 
indicates that these stand-replacing fires overlapped with salamander 
habitat; however the petition did not contain, nor we do have, a 
complete analysis of the extent or degree of salamander habitat that 
burned. The NMEST (2000, p. 9) stated that, ``the greatest threat to 
this species is thought to be the potential for extensive stand-
replacing fires.'' The petitioner contends that there were negative 
effects to the salamander and its habitat from the Cerro Grande Fire, 
such as removal of canopy cover and increased soil temperatures 
(WildEarth Guardians 2008, pp. 23-24). Cummer and Painter (2007, p. 26) 
reported significant changes in microhabitat temperatures following the 
Cerro Grande Fire. The petitioner asserts that impacts on the 
salamander and its habitat from other stand-replacing wildfires (e.g. 
Dome Fire, BMG/Lakes Fires) was likely the same as effects from the 
Cerro Grande fire. We agree; however, we are not aware of an analysis 
that estimates the amount of salamander habitat affected by other 
wildfires. Finally, our files indicate that future stand-replacing 
wildfires in salamander habitat remain a threat.
    The petitioner also claims that the effects of fire suppression and 
rehabilitation activities following wildfire threaten the Jemez 
Mountains salamander. For example, the petitioner indicates that, 
during the Cerro Grande Fire, suppression activities included the 
construction of 26 kilometers (km) (16 miles (mi)) of hand line (hand-
dug trenches 1.5 to 3 meters (m) (5 to 10 feet (ft)) wide from which 
all combustible material was removed), 63 km (39 mi) of bulldozer line 
(larger fire breaks with vegetation removed by bulldozing), and safety 
zones; release of 514,000 liters (135,800 gallons) of fire retardant; 
and 53 km (32 mi) of road improvement resulting in vegetation removal 
within 30 m (100 ft) of either side of the roads (WildEarth Guardians 
2008, p. 26). However, while information in our files

[[Page 40135]]

indicates that some of these activities occurred in salamander habitat 
and corroborate some of the claims of the petitioner on fire 
suppression and rehabilitation, the petitioner does not provide, nor 
are we aware of, a complete assessment of the extent of these 
activities in salamander habitat. Please note that chemical use 
resulting from fire suppression activities is addressed separately in 
Factor E.
    The petitioner describes how historical grazing and fire 
suppression have contributed to changes in forest structure and 
composition in the Jemez Mountains. Scientific literature (e.g., Allen 
1989; Touchan et al. 1996) supports this conclusion; however, we are 
not aware of an assessment of how such changes may affect the 
salamander or its habitat.
    The petitioner believes that salvage logging after wildfire and 
associated thinning with removal of snags and slash in Jemez Mountains 
salamander habitat has had negative impacts to salamanders and their 
habitat. Logging can interrupt the development of salamander habitat by 
removing the requisite habitat components of canopy cover and dead and 
downed logs, while increasing temperature, erosion, runoff, and soil 
compaction (NMEST 2000, p. 5). Additionally, if these activities occur 
when salamanders are surface active, salvage logging could result in 
direct injury or mortality to individuals. The petitioner identifies 
that salvage logging and forest thinning have been proposed within 
salamander habitat, but we have no estimate on the amount of salamander 
habitat that has been impacted by these activities. Nevertheless, we 
found substantial information indicating that the Forest Service has 
conducted, and will likely continue to conduct, salvage logging in 
salamander habitat.
    The petitioner asserts that habitat alteration due to road and 
trail building in salamander habitat has deleterious effects to the 
Jemez Mountains salamander and its habitat. The petitioner believes 
that construction of roads and trails fragments habitat, and high 
vehicular traffic or heavy equipment could cause excessive vibration 
resulting in settling of the subsurface rock and elimination of the 
underground spaces, presumed necessary as subterranean habitat. The 
petitioner provides information on the length of roads that were re-
opened during and subsequent to wildfire. These roads likely affected 
the salamander and its habitat through vegetation removal, soil 
compaction, and the elimination of subsurface spaces. Roads are known 
to fragment terrestrial salamander habitat and act as partial barriers 
to movement (deMaynadier and Hunter 2000, p. 56; Marsh et al. 2005, p. 
2004). Moreover, roads can reduce the quality of adjacent habitat by 
increasing light and wind penetration, exposure to pollutants, and the 
spread of invasive species (Marsh et al. 2005, pp. 2004-2005). Although 
the petitioner does not quantify the amount of salamander habitat 
impacted by roads, information in our files supports the claim that 
roads may have led, and may continue to contribute in the future, to 
the degradation of salamander habitat.
    The petitioner asserts that the improvement and realignment of New 
Mexico State Highway 126 (also called Forest Highway 12) has 
threatened, and will continue to threaten, the Jemez Mountains 
salamander. Information concerning the project provided by the 
petitioner was found to be reliable. For example, our files indicate 
that portions of the Highway 126 project resulted in the removal of 
salamander habitat as well as the destruction of individual salamanders 
and fragmentation of a relatively isolated population of salamanders.
    The petitioner also notes that construction and maintenance of log 
skidder trails, while not likely to be as destructive as road 
construction and maintenance, still has similar effects on the Jemez 
Mountains salamander. The petitioner believes that trail construction 
and salvage logging operations are a threat to the salamander. The 
petitioner correctly indicates that approximately 4 km (2.5 mi) of 
trail were constructed by bulldozer in occupied salamander habitat.
    The petitioner asserts that one of the common techniques used to 
survey for the presence or absence of the salamander destroys habitat 
because it involves destructive sampling by rearranging cover objects 
such as rocks and logs as well as tearing apart decayed logs. We have 
no information regarding the effects to salamander habitat from survey 
techniques (NMEST 2000, pp. 27-36); however, we will examine this claim 
more closely in our status review, and we request any additional 
information the public may have on this potential threat.
    The petitioner asserts that the construction of dams and mining 
modify Jemez Mountains salamander habitat. Information in our files 
supports the claim that dams or water retention structures may have 
been constructed in salamander habitat. Specifically, the petitioner 
contends that an extension of the El Cajete Mine in the Jemez Mountains 
affects the salamander. Our files indicate that the Forest Service 
determined that the mine would not impact the salamander because the 
project was not located on northerly or moist slopes greater than 35 to 
40 percent that support mature or old growth mixed conifer (Forest 
Service 1995a, pp. 12-13; Forest Service 1995b, p. 2). At the time of 
the project, steep slopes (greater than 30 percent) were thought to be 
a critical element of salamander habitat (Ramotnik 1988, p. 50). 
However, salamanders have been documented in areas of no significant 
slope (less than 5 percent) (NMDGF 2000, p. 8), and steep slopes are no 
longer considered a requirement of occupied habitat. Based on this more 
recent information, this project may have affected the salamander and 
its habitat, and there is potential for future mining activities to 
affect the salamander and its habitat. We find that the petition and 
information in our files indicate that construction of dams and future 
mining activities may result in adverse modifications to salamander 
habitat.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    The petitioner provides substantial and reliable information that 
the salamander and its habitat may be threatened from stand-replacing 
fires; salvage logging; fire suppression; construction, maintenance, 
and use of roads and trails; construction of dams; and mining 
activities. The information presented in the petition is supported by 
information in our files, and presents substantial information 
indicating that the petitioned action may be warranted due to the 
present or threatened destruction, modification, or curtailment of the 
habitat or range of the salamander.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

Information Provided in the Petition
    The petitioner asserts that the salamander is threatened by loss of 
individuals through collection of specimens and surveying. The petition 
cites a report by the NMEST (2000) that summarizes the history of 
collection of the species. According to the petition, 977 Jemez 
Mountains salamanders were collected for scientific purposes from 1910 
to 1999. The petitioner cites the report (NMEST 2000) in concluding 
that such collecting has likely reduced populations in localized areas. 
The petitioner also cites the report (NMEST

[[Page 40136]]

2000) in asserting that a 2 person-hour survey protocol was developed 
to search for Jemez Mountains salamanders. Following this protocol, 
likely cover objects (rocks, bark, and decayed logs) are searched for 
salamanders (NMEST 2000). The petition cites a NMDGF (2000) report in 
claiming that this technique can destroy habitat and that continual 
searches in the same habitat have been shown to result in a decrease in 
salamander populations.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    We find that the petition presents substantial information 
indicating that the petitioned action may be warranted due to 
overutilization for scientific purposes.

C. Disease or Predation

Information Provided in the Petition
    The petitioner states that disease is affecting the salamander. 
Information in our files indicates that the amphibian pathogenic 
fungus, Batrachochytrium dendrobatidis (Bd), was found in one 
salamander in 2003 (Cummer et al. 2005, p. 248). The individual 
salamander was collected and sent to the U.S. Geological Survey 
National Wildlife Health Center in Madison, Wisconsin, for diagnostic 
analysis. Results from the analysis included a dual infection of Bd and 
a bacterial species (Cladosporium spp). The virulence of Bd relative to 
the Jemez Mountains salamander remains unknown. However, because in 
formation in our files indicates that Bd can be highly infectious and 
lethal in other species of amphibians, we believe there is substantial 
information that the petitioned action may be warranted due to the 
threat of disease.
    The petitioner provides no information addressing predation. Cummer 
(2005, p. 30) speculated that predation could increase subsequent to 
stand-replacing wildfire because of lack of sufficient cover objects 
while salamanders are surface active; however, we are not aware of any 
information to support this.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Because of the presence of Bd in the Jemez Mountains salamander's 
range and the deleterious effect of Bd on other species of amphibians, 
we believe the threat of disease to the Jemez Mountains salamander may 
be substantial. On the other hand, neither the information in our files 
nor that presented by the petitioner is substantial to suggest that 
predation on the salamander is a significant threat to the species. In 
summary, we have information in our files indicating that the 
petitioned action may be warranted due to disease, but not due to 
predation.

D. The Inadequacy of Existing Regulatory Mechanisms

Information Provided in the Petition
    The petitioner asserts that the salamander is threatened by 
inadequacy of existing regulatory mechanisms. The petitioner states 
that the regulatory mechanisms in place--the 2000 Conservation 
Agreement, the Management Plan, the Forest Plan and its amendments, and 
State law--are ineffective and unenforceable. The Management Plan was 
prepared by NMEST biologists ``to provide guidance for the conservation 
and management of sufficient habitat to maintain viable populations of 
the species'' (NMEST 2000, p. i.). Known and potential threats to the 
species were identified and detailed; management areas based on habitat 
zones were identified; potential management actions in salamander 
habitat and their potential impacts were identified; and guidelines 
were set forth pertaining to certain management actions relative to 
habitat categories (NMEST 2000, pp. 4-22). The intent of the 
Conservation Agreement, the Management Plan, and amendment of the 
Forest Plan was to protect the Jemez Mountains salamander and its 
habitat on lands administered by the Forest Service. However, the 
petitioner identifies multiple projects, both on and off Forest Service 
lands, that were counter to guidelines set forth in the Management Plan 
and recommendations by the NMEST (WildEarth Guardians 2008, pp. 28-54).
    The petitioner provides examples of projects that they claim 
demonstrate the inadequacy of existing regulatory mechanisms and 
ongoing threats to the Jemez Mountains salamander and its habitat. 
Examples provided by the petitioner include actions following the 1996 
Dome Fire, the 2000 Cerro Grande Fire, and the 2003 BMG/Lakes Fires; 
actions relative to the Valles II project (forest thinning and fuel 
reduction activities in areas adjacent to residential development); the 
Highway 126 project; dams at Los Alamos National Laboratory; and the El 
Cajete mine extension (WildEarth Guardians 2008, pp. 28-54). Our files 
support the claim that the Cooperative Agreement, Management Plan, and 
Federal or State laws have been ineffective at preventing actions that 
may threaten the salamander and its habitat.
    The petitioner acknowledges that because the Jemez Mountains 
salamander was uplisted in New Mexico in 2005 from State threatened to 
endangered (NMDGF 2005, p. 2), it gained the protection of the Wildlife 
Conservation Act. The Wildlife Conservation Act prohibits direct take 
of the species except under issuance of a scientific collecting permit. 
However, this law only conveys protection from collection or 
intentional harm; no New Mexico State statutes address habitat 
protection, indirect effects, or other threats to the species 
identified by the State as endangered. NMDGF has the authority to 
consider and recommend actions to mitigate potential adverse effects to 
the salamander during its review of development proposals. The 
petitioner pointed out that the New Mexico State Game Commission, a 
part of the NMDGF, received financial reimbursement and provided 
easements for construction of the Highway 126 project (New Mexico Game 
Commission, 2006, p. 13). We could not find that any measures were 
incorporated to limit impacts to the salamander or its habitat (New 
Mexico Game Commission, 2006, pp. 12-13). Information in our files 
indicates that the Highway 126 project directly impacted salamanders 
and destroyed habitat.
    Additionally, the petitioner asserts that threats to the species 
are not addressed on lands where the salamander occurs outside of the 
Santa Fe National Forest. Populations of salamanders have been observed 
on Tribal lands, Los Alamos National Laboratory lands, the Valles 
Caldera National Preserve, and private lands. Information in our files 
demonstrates that outside of State protection from collection and 
intentional harm, there are no State or Federal regulations providing 
specific protections for the salamander or its habitat beyond those 
populations within the Santa Fe National Forest.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    The information provided by the petitioner was found reliable and 
was corroborated by information in our files. Consequently, we find 
that the petition contains substantial information that listing the 
salamander due to the inadequacy of existing regulatory mechanisms may 
be warranted.

[[Page 40137]]

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

Information Provided in the Petition
    The petitioner asserts that fire suppression, chemical use, and 
climate change threaten the salamander. Fire suppression is addressed 
under Factor A. Chemical use in salamander habitat includes fire 
suppression retardant and insecticides to prevent tree loss. Although 
information in our files indicates that fire retardant has been used in 
salamander habitat, it is unknown how much salamander habitat has been 
affected. Prior to 2006 (71 FR 42798, July 28, 2006) fire retardant 
used by the Forest Service contained sodium ferrocyanide, which is 
highly toxic to fish and amphibians (Pilliod et al. 2003, p. 175). 
Because the salamander breathes and carries out physiological functions 
through its skin, chemicals that are toxic to fish and other amphibians 
may have had negative effects to the salamander. It is unclear whether 
the chemicals used in current fire retardants or insecticides affect 
the salamander. Thus, the information provided by the petition and in 
our files is not substantial to indicate adverse effects of fire 
retardant or insecticides on the salamander or its habitat.
    The petitioner asserts that climate change is likely an increasing 
threat to the salamander due to overall habitat drying and the species' 
requirement of moist microhabitats. In addition, the petitioner states 
that warmer springs and summers, earlier snowmelt, and increased forest 
fire severity, frequency, and duration will likely impact the 
salamander. The petitioner provides citations on climate change 
(Wildearth Guardians 2008, p. 55) and references Enquist and Gori 
(2008) to provide information regarding climate change in the Jemez 
Mountains. Enquist and Gori (2008, p. iii) report the Jemez Mountains 
as one of three areas in New Mexico that may be most vulnerable to 
climate change, in part, due to warmer-drier conditions or greater 
vulnerability in temperature and precipitation. The petitioner contends 
that the identified threats are exacerbated by the salamander's 
restricted distribution.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    In general, the information currently available on the effects of 
climate change does not make sufficiently precise estimates of the 
location and magnitude of the effects in order to predict impacts to 
specific wildlife. However, given a specific prediction in scientific 
literature of warmer and drier conditions for the Jemez Mountains, and 
that such change would likely have a negative impact on the salamander, 
which requires moist microclimates, we find that the petitioned action 
may be warranted due to climate change.
    Regarding the potential threat of chemical use, even though fire 
retardants and insecticides are currently being used, we did not find 
any substantial information that chemical use is actually affecting the 
salamander. We will investigate this potential threat further in our 
status review, and request any additional information the public may 
have on this potential threat.
    We reviewed the petition and readily available supporting 
information and find that the petition presents substantial information 
for this factor under the threat of climate change, but not under the 
threat of chemical use.

Finding

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition and publish our notice of the 
finding promptly in the Federal Register.
    Our process for making this 90-day finding under section 4(b)(3)(A) 
of the Act is limited to a determination of whether the information in 
the petition presents ``substantial scientific and commercial 
information,'' which is interpreted in our regulations as ``that amount 
of information that would lead a reasonable person to believe that the 
measure proposed in the petition may be warranted'' (50 CFR 424.14(b)). 
We have reviewed the petition and the literature cited in the petition, 
and evaluated the information to determine whether the sources cited 
support the petitioned actions. We also reviewed reliable information 
that was readily available in our files to clarify and verify 
information in the petition. Based on our evaluation of the information 
provided in the petition, we find that the petition presents 
substantial scientific or commercial information indicating that 
listing the Jemez Mountains salamander may be warranted. The petitioner 
presents substantial information indicating that the salamander may be 
threatened by Factor A (the present or threatened destruction, 
modification, or curtailment of its habitat or range), Factor C 
(disease), Factor D (inadequacy of existing regulatory mechanisms), and 
Factor E (other natural or manmade factors affecting its continued 
existence) throughout the entire range of the Jemez Mountains 
salamander. The petitioner does not present substantial information 
that Factor B (overutilization for commercial, recreational, 
scientific, or educational purposes) is currently, or in the future may 
be, considered a threat to the salamander.
    Based on this review and evaluation, we find that the petition has 
presented substantial scientific or commercial information that listing 
the salamander throughout all or a portion of its range may be 
warranted due to current and future threats under Factors A, C, D, and 
E. Therefore, we are initiating a status review to determine whether 
listing the Jemez Mountains salamander under the Act is warranted. We 
will issue a 12-month finding as to whether any of the petitioned 
actions are warranted. To ensure that the status review is 
comprehensive, we are soliciting scientific and commercial information 
regarding the salamander.
    The ``substantial information'' standard for a 90-day finding is in 
contrast to the Act's ``best scientific and commercial data'' standard 
that applies to a 12-month finding to determine whether a petitioned 
action is warranted. A 90-day finding is not a status assessment of the 
species and does not constitute a status review under the Act. Our 
final determination of whether a petitioned action is warranted is not 
made until we have completed a thorough status review of the species, 
as part of the 12-month finding on a petition, which is conducted 
following a positive 90-day finding. Because the Act's standards for 
90-day and 12-month findings are different, as described above, a 
positive 90-day finding does not mean that the 12-month finding also 
will be positive.
    We encourage interested parties to continue gathering data that 
will assist with the conservation and monitoring of the salamander. The 
petitioner requests that critical habitat be designated for this 
species. If we determine in our 12-month finding that listing the 
salamander is warranted, we will address the designation of critical 
habitat at the time of the proposed rulemaking.

References Cited

    A complete list of all references cited in this finding is 
available upon request from the New Mexico Ecological

[[Page 40138]]

Services Office (see FOR FURTHER INFORMATION CONTACT).

Author

    The primary authors of this rule are the staff members of the New 
Mexico Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT).

Authority

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

    Dated: July 31, 2009.
James J. Slack,
Acting Deputy Director, Fish and Wildlife Service.
[FR Doc. E9-19024 Filed 8-10- 09; 8:45 am]
BILLING CODE 4310-55-S