[Federal Register Volume 72, Number 43 (Tuesday, March 6, 2007)]
[Proposed Rules]
[Pages 9913-9917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3868]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 90-Day and 12-
Month Findings on a Petition To Revise Critical Habitat for the Indiana 
Bat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day and 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our 
90-day and 12-month findings on a petition to revise critical habitat 
for the federally endangered Indiana bat (Myotis sodalis). We find that 
the petition does not present substantial scientific information 
indicating that revising critical habitat for the Indiana bat may be 
warranted. However, we have also elected to make a 12-month finding at 
this time.

DATES: The finding announced in this document was made on March 6, 
2007. You may submit new information concerning this species or its 
habitat for our consideration at any time.

ADDRESSES: The complete supporting file for this finding is available 
for public inspection, by appointment, during normal business hours at 
the Bloomington Ecological Services Field Office, 620 South Walker 
Street, Bloomington, IN 47403-2121. New information, materials, 
comments, or questions concerning this species or its habitat may be 
submitted to us at any time.

FOR FURTHER INFORMATION CONTACT: Scott Pruitt, Field Supervisor of the 
Bloomington Ecological Services Field Office (see ADDRESSES), by 
telephone at (812) 334-4261, or by facsimile to (812) 334-4273. Persons 
who use a telecommunications device for the deaf (TDD) may call the 
Federal Information Relay Service (FIRS) at 800/877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(D) of the Endangered Species Act of 1973, as 
amended (Act) (16 U.S.C. 1531 et seq.), requires that we make a finding 
on whether a petition to revise critical habitat for a listed species 
presents substantial scientific information indicating that the 
revision may be warranted. Our listing regulations at 50 CFR 
424.14(c)(2)(i) further require that, in making a finding on a petition 
to revise critical habitat, we consider whether the petition contains 
information indicating that areas petitioned to be added to critical 
habitat contain physical and biological features essential to, and that 
may require special management to provide for, the conservation of the 
species involved. To the maximum extent practicable, we are to make 
this finding within 90 days of our receipt of the petition, and we must 
promptly publish our finding in the Federal Register.
    If we find that substantial information is presented, we are 
required to determine how we intend to proceed with the requested 
revision, and shall promptly publish notice of such intention in the 
Federal Register. The Act gives us discretion in determining whether to 
revise critical habitat, stating that the ``Secretary may, from time-
to-time thereafter as appropriate, revise such designation.''
    In making this finding, we relied on information provided by the 
petitioners and evaluated that information in accordance with 50 CFR 
424.14(c). Our

[[Page 9914]]

process of coming to a 90-day finding under section 4(b)(3)(D) of the 
Act and Sec.  424.14(c) of our regulations is limited to a 
determination of whether the information in the petition meets the 
``substantial information'' threshold. However, we have also elected to 
respond as if a positive 90-day finding was made, and to also render a 
12-month finding at this time.

Previous Federal Action

    We originally listed the Indiana bat as in danger of extinction 
under the Endangered Species Preservation Act of 1966 (32 FR 4001; 
March 11, 1967). This species is currently listed as endangered under 
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.). We designated critical habitat for the Indiana bat on September 
24, 1976 (41 FR 41914).
    On October 18, 2002, we received a petition to revise critical 
habitat for the endangered Indiana bat from Southern Appalachian 
Biodiversity Project, Buckeye Forest Council, Kentucky Heartwood, 
Virginia Forest Watch, Brent Bowker, Shenandoah Ecosystems Defense 
Group, Indiana Forest Alliance, and Heartwood. The submission clearly 
identified itself as a petition and included the identification 
information of the petitioners required by 50 CFR 424.14(a). At that 
time, we notified the petitioners that we lacked funding to develop a 
90-day finding on the petition. We also indicated that funding was not 
anticipated to be available until Fiscal Year 2004 or later and that we 
would not be able to process the petition until funding became 
available. On May 6, 2005, Heartwood, Southern Appalachian Biodiversity 
Project, Buckeye Forest Council, Kentucky Heartwood, Indiana Forest 
Alliance, Virginia Forest Watch, National Forest Protection Alliance, 
and Wild Virginia filed a complaint (Heartwood, et al. v Norton, et al. 
1:05CV313-SSB-TSH, District of Southern Ohio) that cited our failure to 
comply with the Act's section 4 petition deadlines and that made 
various claims of violations under section 7 of the Act. On May 24, 
2006, we reached a settlement agreement with the plaintiffs with 
regards to the section 4 portion of the complaint. In that settlement 
we agreed that we would submit to the Federal Register by February 28, 
2007, a 90-day finding as to whether the petition presents substantial 
information indicating that a critical habitat revision may be 
warranted for Indiana bat. We also agreed that if we determined in the 
90-day finding that the petition does present substantial information 
indicating that the petitioned action may be warranted we would submit 
to the Federal Register by December 15, 2007, a 12-month determination 
that would explain how the Secretary intends to proceed with the 
proposed revision pursuant to 16 U.S.C. 1533(b)(3)(D)(ii).

Species Information

    The Indiana bat is a temperate, insectivorous, migratory bat that 
occurs in 20 States in the eastern half of the United States. The 
Indiana bat hibernates colonially in caves and mines during winter. In 
spring, reproductive females migrate and form maternity colonies where 
they bear and raise their young in wooded areas, specifically behind 
exfoliating bark of large, usually dead, trees. Both males and females 
return to hibernacula (i.e., the caves and mines where Indiana bats 
hibernate) in late summer or early fall to mate and enter hibernation. 
As of October 2006, the Service had records of extant winter 
populations of approximately 281 hibernacula in 19 States and 269 
maternity colonies in 17 States (King 2007, pp. 2-23). The 2005 winter 
census estimate of the population was 457,000, which is a 15 percent 
increase from the 2003 estimate (King 2007, p. 24).

Analysis of Background Information Provided in the Petition

    The petition includes an incomplete list of areas currently 
designated as Indiana bat critical habitat. Wyandotte Cave and Ray's 
Cave in Indiana are not, however, included on that list. We clarify 
that Wyandotte Cave and Ray's Cave in Indiana are currently designated 
as critical habitat. We assume this omission is simply an oversight on 
the part of the petitioners. Therefore, when the petitioners reference 
current critical habitat in the petition we assume that they are 
referring to Big Wyandotte and Ray's Caves as well as all other 
designated critical habitat.
    In addition, the petition states that ``In the 1999 draft Indiana 
Bat (Myotis sodalis) Revised Recovery Plan the USFWS admitted that ``it 
is evident that these measures have not produced the desired result of 
the recovery of the species (USFWS 1999a).'' We reviewed our 1999 draft 
Recovery Plan, and while this statement does appear in that document, 
it does not refer to the failure of critical habitat to promote 
recovery. In the 1999 draft Recovery Plan, this sentence relates 
specifically to conservation efforts directed at protection of winter 
habitat of the Indiana bat (USFWS 1999, p. 19). We listed the Indiana 
bat as endangered due primarily to human disturbance of hibernating 
bats, and associated declines in populations. We also recognized that 
modifications to caves were a major threat. Those modifications altered 
the internal climates of caves, rendering them unsuitable or less 
suitable for hibernating bats. Early conservation efforts focused on 
alleviating threats to the hibernacula, but populations continued to 
decline. In light of these continued declines, the 1999 draft Recovery 
Plan recognized that we need to continue and expand restoration and 
conservation efforts at hibernacula and conserve the known habitats 
that the species uses throughout its annual cycle.

Analysis of Petitioners Assertion That Expanded Critical Habitat Is 
Necessary

Petitioners Assert That the Population Continues to Decline
    The petition states that ``Populations of Indiana bat continue to 
decline despite the 1976 designation of critical habitat by the 
USFWS.'' The petition states that ``The current critical habitat 
designation for the Indiana bat is having no effect on the species' 
survival.''
    Information in our files shows that surveys since 2001 report 
increases in population numbers. Indiana bat population estimates are 
based on surveys conducted at Indiana bat hibernacula. During the 
1950s, biologists began conducting winter bat surveys at irregular 
intervals and recording population estimates for a limited number of 
Indiana bat hibernacula (Hall 1962, pp.19-26). During the 1960s and 
most of the 1970s, winter surveys of the largest Indiana bat 
populations known at that time were relatively few, and many medium-
sized and large winter populations had not yet been discovered. Since 
the release of the original Recovery Plan in 1983 (USFWS 1983, 80 pp.), 
with few exceptions, regular biennial surveys have been conducted in 
the most populous hibernacula. Rangewide population estimates over the 
three most recent biennial survey periods do not show the same 
declining trend seen in estimates spanning 1965 through 2000. There was 
approximately a 4-percent increase from the 2001 estimate of 381,000 
bats to the 2003 estimate of 398,000 bats, and a 15-percent increase 
from the 2003 estimate of 398,000 bats to the 2005 estimate of 457,000 
bats (King 2007, p. 24).
    The petition states ``Even in Priority 1 hibernacula (protected 
caves with recorded winter populations exceeding 30,000 bats) the 
species continues to decline.'' It is not accurate to state

[[Page 9915]]

categorically that populations at sites designated as critical habitat 
have declined. Trends at hibernacula currently designated as critical 
habitat have not been consistent: some have declined while others have 
increased. For example, the population at (Big) Wyandotte Cave in 
Indiana was estimated at 1,900 Indiana bats in 1974 (the last estimate 
prior to designation as critical habitat) and the 2005 estimate was 
54,913 bats (King 2007, p. 24). In contrast, the estimate at Cave 29 
(Great Scott Cave) in Missouri was 81,800 bats at the time of critical 
habitat designation, and the 2005 estimate was 6,450 Indiana bats (King 
2007, p. 25). The same applies to hibernacula not designated as 
critical habitat; the populations at some individual hibernacula have 
remained relatively stable or increased, while others have declined. 
The petitioners provide no new information or evidence to suggest 
otherwise.
Petitioners Assert That Declines Are Linked to Activities Occurring 
Outside Hibernacula
    The petition states that ``Research demonstrates that the pressure 
exerted on the survival of the Indiana bat comes from activities 
occurring outside of protected, wintering hibernacula, and that 
revision of critical habitat designations is over-due; advances in the 
study of Indiana bat populations (Murray et al. 1999) and the knowledge 
of Indiana bat summering habitat (Romme et al. 1995: Humphrey et al. 
1997: and USFWS 1999a) provide for revision to the critical habitat 
designation without delay.''
    (Note that the above quote cites Humphrey et al. 1997. However, the 
list of references provided with the petition does not include a 
citation for Humphrey et al. 1997, but does include a citation for 
Humphrey et al. 1977. We assume that the reference to the 1997 document 
in the text is a mistaken reference to the 1977 document.)
    Based on our review of the literature cited we have found the 
petitioners' claim to be inaccurate. None of the references cited by 
the petitioners report on research linking declines in Indiana bat 
populations to activities occurring outside of the hibernacula. The 
Murray et al. (1999, pp. 105-112) paper reported on a study comparing 
mist nets and the Anabat II detector system (an ultrasonic bat 
detector) for surveying bat communities; the paper did not report on 
causes of population declines in Indiana bat populations (and, in fact, 
Indiana bats were infrequently encountered during this study). The 
other three papers contain references to population declines, but do 
not report on research linking declines to factors outside of 
hibernacula.
    Romme et al. (1995, p. 1) stated: ``Although a variety of factors 
undoubtedly have contributed to population losses, protection of 
hibernacula has been a management priority. Despite this protection, 
population declines have continued.'' No specific research linking 
declines to activities outside hibernacula were cited in this paper; 
rather, the paper urged that factors in addition to hibernacula 
protection should be considered in Indiana bat conservation efforts.
    Similarly, USFWS (1999a, p. 19) (which is an agency draft of a 
revised Indiana Bat Recovery Plan) also pointed out that the emphasis 
of Indiana bat conservation efforts up to that time had been 
hibernacula protection, and that populations continued to decline. 
However, the document stated that ``not all causes of Indiana bat 
population declines have been determined'' (USFWS 1999a, p. 15).
    Humphrey et al. (1977, pp. 334-346) reported on the discovery, in 
Indiana in 1974, of the first known maternity colony of the Indiana 
bat. As this was the first known maternity colony, relatively little 
was known about summer habitat at that point in time. Prior to this 
discovery, it was not known that the Indiana bat's maternity colonies 
occur in trees. The authors noted that summer habitat is needed for the 
reproduction and survival of the Indiana bat and pointed out that the 
crucial events of gestation, postnatal development, and post-weaning 
maturation take place during this time. The authors also discussed that 
suitable summer habitat is destroyed by some human land uses and urged 
caution in managing those habitats.
    Humphrey et al. (1977, p. 345) makes the observation that summer 
habitat does not appear to be limiting to the Indiana bat:

    Despite the problems sometimes occurring in tree roosts, one 
great advantage is realized. Suitable foraging habitat occurs over a 
vast area of the eastern United States, and the bats can roost in a 
nearby tree so that flying to the feeding area is not costly. This 
means that M. sodalis has much summer habitat available to it; thus 
a large population size and distribution are possible.

    In summary, none of the information provided or references cited by 
the petitioners report on research that demonstrates that factors 
outside the hibernacula are linked to declines in populations of 
Indiana bats. Rather, the references suggest that conservation efforts 
beyond the efforts focused on hibernacula may be appropriate. While 
they point out that summer habitat is important to Indiana bats, the 
references do not provide evidence that revising critical habitat to 
include summer areas may be warranted.
Petitioners Assert That Designating Critical Habitat in Summer Range Is 
Essential for Recovery
    The petitioners make multiple claims that the current critical 
habitat designation has failed to promote recovery of the Indiana bat, 
and that designation of critical habitat in the summer range of the 
species is needed for recovery. Specifically, the petitioners state 
that ``Because there is no designated critical habitat in the Indiana 
bat's summer range, the USFWS continues to issue incidental take 
statements throughout the country, allowing many Indiana bats to be 
killed. For example, in southern Indiana, the USFWS allowed the 
permanent destruction of 121 ha (299 ac) of forest habitat in an area 
that has the highest known concentration of Indiana bat maternity 
roosts in the world (USFWS 1998). If the current protections fail to 
protect even this important area, expanded critical habitat is 
necessary.''
    Designation of critical habitat would not address the issue of 
incidental take and the killing of Indiana bats. Take prohibition is 
addressed under section 9 of the Act, and we evaluate and address 
incidental take under sections 7 and 10 of the Act. The critical 
habitat analysis done under section 7 does not include consideration of 
take of the species itself, only habitat destruction or modification.
    Furthermore, the example provided by the petitioners refers to Camp 
Atterbury Army National Guard Training Site. Camp Atterbury provides an 
excellent conservation example; current efforts at this site have been 
very effective in conserving the Indiana bat's summer habitat. Camp 
Atterbury comprises 13,409 ha (33,120 ac) in portions of Bartholomew 
(11,397 ha) (28,151 ac), Brown (1,609 ha) (3,974 ac), and Johnson (402 
ha) (993 ac) Counties, Indiana. Approximately 10,927 ha (26,990 ac) of 
the site is forested. In August 1997, a mist net survey of 22 sites at 
Camp Atterbury was conducted to determine whether Indiana bats, as well 
as other bat species, were present on the installation. A total of 208 
bats, representing 8 species, was captured, including 13 Indiana bats. 
In 1998, the Service and Department of Defense (DoD) consulted on the 
construction and operation of a training range at this base; the 
Service issued a biological opinion (cited by the petitioners as USFWS 
1998b) and a subsequent amendment

[[Page 9916]]

that allowed for the loss of 121 ha (299 ac) of habitat suitable for 
summering Indiana bats for the development of a training range at the 
base. DoD incorporated a number of conservation measures into the 
proposed project, including setting aside 315 ha (778 ac) for Indiana 
Bat Management Zones, developing a landscape-scale forest management 
policy for the entire base to ensure long-term conservation of Indiana 
bat's summer habitat, development of a permanent water source for bats, 
restrictions on the use of training materials potentially toxic to 
Indiana bats, and development of bat research and education programs on 
the facility. DoD has worked closely with the Service to ensure that 
Indiana bat summer habitat conservation efforts have continued. DoD has 
continued to fund monitoring of the Indiana bat population, as well as 
other research efforts, and this monitoring demonstrates that the 
facility continues to support multiple maternity colonies of Indiana 
bats. There is no evidence that the long-term viability of Camp 
Atterbury's bat population has declined as the result of military 
activities. In fact, consultation between DoD and the Service (under 
section 7 of the Act) has led to many enhancements of summer habitat 
that are likely improving the long-term viability of this population.
    The petitioners also state: ``Because in [sic] the change in 
knowledge concerning the Indiana bat's summer habitat since 1996, it is 
necessary that the USFWS designate summer habitat for the Indiana 
bat.'' We assume that the reference to 1996 is a mistaken reference to 
1976, which is when we designated critical habitat for the Indiana bat. 
It is true that we have more knowledge of summer habitat than when we 
designated critical habitat in 1976, but it is not a logical extension 
that the knowledge necessitates the designation of critical habitat on 
the summer range of the species. Under section 3(5)(A) of the Act, 
critical habitat is defined as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protection; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination that such areas are essential for the 
conservation of the species. The petitioners do not provide information 
that can reliably define the features of summer habitat that are 
essential to the conservation of the species, or information about what 
special management is required, nor provide evidence that specific 
areas of summer habitat may be essential to the conservation of the 
species as a whole. As we gather additional information on summer 
habitat and the distribution of the Indiana bat, we are finding that 
the bat is widely distributed in a variety of wooded areas. We agree 
that summer habitat is needed by the species, and we are successfully 
applying our expanding knowledge in efforts to conserve summer habitat 
for the Indiana bat, as demonstrated by the Camp Atterbury example 
discussed above. The petitioners provide no new information to support 
their claim that current conservation efforts are failing to conserve 
the Indiana bat on its summer range or to suggest that critical habitat 
designation of summer habitat may be warranted.

Petitioners Recommendations Regarding Critical Habitat

    The petitioners note that recommendations in their petition are not 
complete. The petitioners alternate between requesting designation of 
specific forested areas and designation of all suitable habitat, but 
their request for the revision of critical habitat for the Indiana bat 
includes the following sites:
    (1) Areas surrounding hibernacula currently designated as critical 
habitat.
    (2) Suitable habitat in all counties where maternity colonies or 
``other summering Indiana bats'' (which we assume means males and non-
reproductive females) have been found in 9 States (Illinois, Iowa, 
Indiana, Kentucky, Michigan, Missouri, Ohio, Tennessee, and North 
Carolina). In addition, the petitioners request that we designate as 
critical habitat all optimal summer and fall roosting and foraging 
habitat throughout those States.
    (3) Additional specific sites, including:
    Illinois: Forests surrounding all 51 roost trees discovered by 
Garner and Gardner in Illinois; all forested areas within Pike and 
Adams Counties; all or a majority of the Shawnee National Forest; all 
optimal and suitable habitat in Williamson and Johnson Counties; and 
Indiana bat habitat in the Georgetown area (along the Little Vermillion 
River).
    Indiana: Bartholomew, Johnson, and Brown Counties, or at an 
absolute minimum forested land on Camp Atterbury; all forested areas 
and woodlots at Newport Chemical Depot and additional areas including 
Little Raccoon Creek; and Muddy Fork of Silver Creek watershed.
    Kentucky: Federal land in Letcher and Pike Counties.
    Missouri: Fort Leonard Wood; Mark Twain National Forest; and area 
around St. Lee's Island on the Mississippi River, in St. Genevieve and 
Jefferson Counties.
    Pennsylvania: Allegheny National Forest.
    Virginia and West Virginia: Cumberland Gap National Historic Park 
and George Washington and Jefferson National Forests; and the most 
optimal Indiana bat habitat on private land throughout Virginia.
    References cited by the petitioners document the presence of 
Indiana bats at specific sites, but the petitioners provide neither 
information that can reliably define the features of summer habitat 
that are essential to the conservation of the species, or what special 
management may be necessary, nor evidence that specific areas of summer 
habitat may be essential to the conservation of the species as a whole. 
There is currently no reliable method for determining or evaluating the 
relative value of these areas as summer habitat for the Indiana bat.
    The petitioners define ``essential'' summer habitat for the Indiana 
bat as an area with at least 30 percent deciduous forest cover and 
water within 0.97 kilometers (0.6 miles) and optimal habitat as an area 
with greater than 60 percent canopy cover. They further describe 
optimal habitat as having more than 27 trees greater than or equal to 
22 centimeters (cm) (8.7 inches) in diameter per 0.4 ha (ac), and 
suitable habitat as having as few as one tree greater than or equal to 
22 cm (8.7 in) in diameter per 0.4 ha (ac). These definitions are based 
on a summer habitat model developed by Romme et al. (1995, pp. 27-38) 
that was based on habitat parameters that had been collected across the 
range of the species (up to the time the model was developed). The 
model cited by the petitioners has not been found to be useful in 
predicting habitat occupancy by Indiana bats (Carter 2005, pp. 83-85). 
While the limiting factors of this model are unclear, the fact that the 
species occurs across a large range and in a variety of wooded habitats 
likely contributes to the difficulty of developing successful models. 
The petitioners also cite Gardner et al. (1990, pp. 8-9) as documenting 
that most maternity roost trees are found in areas with more than 80 
percent canopy cover. The work by Gardner et al. (1990) was conducted 
only in Illinois, and was pioneering research that greatly enhanced our 
understanding of the summer ecology of Indiana bats. The results, 
however, cannot be used to

[[Page 9917]]

describe the characteristics of summer habitat across the range of the 
species because subsequent research has shown that characteristics of 
other occupied sites are quite different. For example, mean values of 
canopy cover surrounding Indiana bat maternity roost trees are highly 
variable among studies, ranging from less than 20 percent to 88 percent 
(Kurta 2005, p. 41). Yates and Muzika (2006, pp. 1245-1246) also noted 
that, across the range of the Indiana bat, the amount of nonforested 
land in occupied areas varies greatly. The best scientific information 
available on summer habitat suggests that the species is widely 
distributed in a variety of wooded habitats, ranging from highly 
fragmented woodlands in agricultural landscapes to extensively forested 
areas.
    The Service has summer records of Indiana bats from 296 counties in 
20 States (King 2007, pp. 2-23). In addition to the specific areas 
identified above, the petitioners request that the Service revise 
critical habitat for the species to include all suitable habitat in all 
counties where there are summer records of the species in 9 States 
(Illinois, Iowa, Indiana, Kentucky, Michigan, Missouri, Ohio, 
Tennessee, and North Carolina); the Service has summer records from 235 
counties in those States. As previously discussed, Indiana bats summer 
in a wide variety of wooded habitats, and the petitioners provide no 
reliable method to evaluate or measure the relative value of sites or 
features contained therein as Indiana bat summer habitat.

Finding

    We have reviewed the petition, literature cited in the petition, 
and information in our files. After this review and evaluation, we find 
the petition does not present substantial information to indicate that 
revision of critical habitat to include summer areas for the Indiana 
bat may be warranted. Nevertheless, we have elected to respond as if a 
positive 90-day finding has been made and also render a 12-month 
finding for which we have determined not to proceed with the requested 
revision to Indiana bat critical habitat.
    Under section 3(5)(A) of the Act, in order for the Service to 
consider an area for designation as critical habitat, we must either 
conclude that a specific area within the geographical area occupied by 
the species, at the time it is listed, contains those physical or 
biological features essential to the conservation of the species and 
which may require special management considerations or protection, or 
that a specific area outside the geographical area occupied by the 
species at the time it is listed is essential for the conservation of 
the species. The petitioners do not provide information that adequately 
defines the features of summer habitat that are essential to the 
conservation of the species, or provide information about what special 
management may be necessary, or provide evidence that specific areas of 
summer habitat may be essential to the conservation of the species.
    Under the statute, the petition process for revisions to critical 
habitat varies from that for other petitions. Under the statute were we 
to make a positive finding, we need only to determine how we intend to 
proceed with the requested revisions. We have determined that even if a 
90-day finding was warranted with respect to this petition, for the 
reasons stated below, we are not proceeding with revision of the 
critical habitat. In making this finding we are exercising our 
discretion, provided under section 4(b)(3)(D)(ii) of the Act, with 
respect to revision of critical habitat.
    We cannot justify exercising our discretion to revise critical 
habitat for the Indiana bat because considerable time and effort would 
be needed to conduct new analyses and complete other procedural steps 
that would be associated with completing this discretionary action. 
Such an effort would come at the expense of critical habitat 
designations that the Service is required to make for other species. At 
the present time we have a backlog of actions involving non-
discretionary designations of critical habitat for approximately 33 
species. These include actions that are mandated by court orders and 
court-approved settlement agreements, as well as actions necessary to 
implement the requirements of the Act pertaining to critical habitat 
designations. It will take us a number of years to clear this backlog, 
and during that time we also need to meet non-discretionary 
requirements to designate critical as additional species are listed. 
Meeting these requirements, for which we have no discretion, is a 
higher priority than taking discretionary actions.
    Based on our need to give priority to funding the large number of 
outstanding non-discretionary designations and to address new 
designations that will be required as additional species are listed, we 
find that the petitioned action to revise critical habitat for the 
Indiana bat is not warranted. The fact that we are making this finding 
and exercising our discretion not to revise critical habitat for the 
Indiana bat does not, however, alter the protection this species and 
its habitat will continue to receive under the Act. Specifically, it 
does not alter the requirement of section 7(a)(2) of the Act that all 
Federal agencies must insure the actions they authorize, fund, or carry 
out are not likely to ``jeopardize the continued existence'' of a 
listed species or result in the ``destruction or adverse modification'' 
of critical habitat. Further, the section 9 prohibition of take of the 
species, which applies regardless of land ownership or whether or not 
within designated critical habitat, is independent of whether critical 
habitat is revised to include summer habitat and is unchanged by this 
finding.
    Although we will not commence a proposed revision of critical 
habitat in response to this petition, we will continue to monitor the 
Indiana bat population status and trends, potential threats, and 
ongoing management actions that might be important with regard to the 
conservation of the Indiana bat across its range. We will also be 
considering the recommendations covered in any final revisions to the 
recovery plan that is now being developed. We encourage interested 
parties to continue to gather data that will assist with the 
conservation of the species. If you wish to provide information 
regarding the Indiana bat, you may submit your information or materials 
to the Field Supervisor, Bloomington Ecological Services Field Office 
(see ADDRESSES).

References Cited

    A complete list of all references cited herein is available, upon 
request, from the Bloomington Ecological Services Field Office (see 
ADDRESSES).

Author

    The primary author of this notice is the staff of the U.S. Fish and 
Wildlife Service, Bloomington Ecological Services Field Office (see 
ADDRESSES).

Authority

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

    Dated: February 28, 2007.
H. Dale Hall,
Director, Fish and Wildlife Service.
 [FR Doc. E7-3868 Filed 3-5-07; 8:45 am]
BILLING CODE 4310-55-P