        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R6-ES-2009-0013]
        [92210-1117-000-B4]
        RIN 1018-AV45
        Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Preble's Meadow Jumping Mouse

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the proposed revised designation of critical habitat for the Preble's meadow jumping mouse (Zapus hudsonius preblei) under the Endangered Species Act of 1973, as amended.  We also announce the availability of a draft economic analysis, a draft environmental assessment, and an amended required determinations section of the proposal.  We are reopening the comment period for the proposal to allow all interested parties an opportunity to comment simultaneously on the revised proposed rule, the associated draft economic analysis and draft environmental assessment, and the  amended required determinations section.  If you submitted comments previously, you do not need to resubmit them because we have already incorporated them into the public record and will fully consider them in preparation of the final rule.

          DATES:
          We will consider public comments received on or before June 28, 2010.

          ADDRESSES:
          You may submit comments by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov.  Search for docket FWS-R6-ES-2009-0013 and then follow the instructions for submitting comments.
          • U.S. mail or hand-delivery:  Public Comments Processing, Attn:  FWS-R6-ES-2009-0013; 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 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:
          Susan Linner, Field Supervisor, U.S. Fish and Wildlife Service, Colorado Ecological Services Office, P.O. Box 25486, DFC (MS 65412), Denver, CO 80225; by telephone (303-236-4773); or by facsimile (303-236-4005).  Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Public Comments

        We will accept written comments and information during this reopened comment period on our proposed revision of critical habitat for the Preble's Meadow jumping mouse (PMJM) that was published in the Federal Register on October 8, 2009 (74 FR 52066), our draft economic analysis (DEA) of the proposed revised designation, our draft environmental assessment, and our amendment of 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 Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether the benefit of designation would outweigh any threats to the species due to designation, such that the designation of critical habitat is prudent.
        (2) Specific information on:
        • The amount and distribution of PMJM habitat in Colorado;
        • What areas occupied at the time of listing that contain the physical and biological features essential to the conservation of the species we should include in the revised designation and why;
        • What areas not occupied at the time of listing are essential to the conservation of the species and why; and
        • What special management consideration and protection the physical and biological features may require and why.
        (3) Information identifying or clarifying the physical and biological features essential to the conservation of the species.
        (4) Land use designations and current or planned activities in the subject areas and their possible impacts on the species and the proposed critical habitat.
        (5) How the proposed boundaries of the revised critical habitat could be refined to more accurately identify the riparian and adjacent upland habitats occupied by the PMJM.
        (6) Whether our proposed revised designation should be altered in any way to account for the potential effects of climate change and why.
        (7) Whether any specific areas being proposed as revised critical habitat should be excluded under section 4(b)(2) of the Act from the final designation, and whether the benefits of potentially excluding any particular area outweigh the benefits of including that area under section 4(b)(2) of the Act.  We are specifically seeking comments from the public on the following:
        • Lands covered by the Douglas County Habitat Conservation Plan (HCP) (Service 2006a) and the potential modification of outward boundaries of proposed critical habitat to conform to Douglas County's Riparian Conservation Zones (streams, adjacent floodplains, and nearby uplands likely to be used as habitat by the PMJM) as mapped for the Douglas County HCP;
        • Lands within the Livermore Area HCP (Service 2006), the Larimer County's Eagle's Nest Open Space HCP (Service 2004), the Denver Water HCP (Service 2003a), the Struther's Ranch HCP (Service 2003b), and other HCPs;
        • Lands within El Paso County (because the county is currently developing a countywide HCP);
        • Lands within the proposed Seaman Reservoir expansion footprint; and
        • Lands within the Rocky Flats National Wildlife Refuge (NWR).
        (8) Any foreseeable economic, national security, or other relevant impacts that may result from the proposed revised designation and, in particular, any impacts on small entities, and the benefits of including or excluding areas from the proposed redesignation that exhibit these impacts.
        (9) Information on the extent to which the description of potential economic impacts in the DEA is complete and accurate.
        (10) Whether the DEA makes appropriate assumptions regarding current practices and any regulatory changes that will likely occur if we designate revised critical habitat.
        (11) Whether the DEA correctly assesses the effect of regional costs associated with land use controls that may result from the revised designation of critical habitat.
        (12) Whether the DEA identifies all Federal, State, and local costs and benefits attributable to the proposed revision of critical habitat, and information on any costs that have been inadvertently overlooked.
        (13) Whether the draft environmental assessment adequately presents the purpose of and need for the proposed action, the proposed action and alternatives, and the evaluation of the direct, indirect, and cumulative effects of the alternatives.
        (14) Whether our approach to designating revised critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

        You may submit your comments and materials concerning our proposed rule or the associated DEA and draft environmental assessment by one of the methods listed in the ADDRESSES section.
        If you submit a comment via http://www.regulations.gov, your entire comment—including your personal identifying information— will be posted on the Web site.  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.  We will post all hardcopy comments on http://www.regulations.gov.

        Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, draft economic analysis, and draft environmental assessment, 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, Colorado Ecological Services Office (see the FOR FURTHER INFORMATION CONTACT).  You may obtain copies of the proposed revision of critical habitat, the DEA, and the draft EA on the Internet at http://www.regulations.gov at docket number FWS-R6-ES-2009-0013, or at http://www.fws.gov/mountain-prairie/species/mammals/preble/, or by mail from the Colorado Ecological Services Office (see the FOR FURTHER INFORMATION CONTACT).
        Background
        Previous Federal Actions

        It is our intent to discuss only those topics directly relevant to the proposed designation of critical habitat for the PMJM.  For more information on previous Federal actions concerning the PMJM, refer to the proposed designation of revised critical habitat published in the Federal Register on October 8, 2009 (74 FR 52066).  We proposed to designate approximately 418 mi (669 km) of rivers and streams and 39,142 ac (15, 840 ha) of lands in 11 units located in Boulder, Broomfield, Douglas, El Paso, Jefferson, Larimer, and Teller Counties in Colorado, as critical habitat.  That proposal had a 60-day public comment period, ending December 7, 2009.  We will submit for publication in the Federal Register a final critical habitat designation for the PMJM on or before September 30, 2010.
        For additional information on the biology of this subspecies, see the May 13, 1998, final rule to list the PMJM as threatened (63 FR 26517); the June 23, 2003, final rule designating critical habitat for the PMJM (68 FR 37275); and the July 10, 2008, final rule to amend the listing for the PMJM to specify over what portion of its range the subspecies is threatened (73 FR 39789).

        Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features 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 the 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 that affect critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
        Draft Economic Analysis
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat.  We have prepared a DEA of our October 8, 2009 (74 FR 52066), proposed rule to designate revised critical habitat for the Preble's Meadow jumping mouse.
        The intent of the DEA is to identify and analyze the potential economic impacts associated with the proposed revised critical habitat designation for the PMJM.  The DEA quantifies the economic impacts of all potential conservation efforts for the PMJM.  Some of these costs will likely be incurred regardless of whether or not we designate revised critical habitat.  The economic impact of the proposed revised critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.”  The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations).  Therefore, the baseline represents the costs incurred regardless of whether revised critical habitat is designated.  The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of revised critical habitat for the species.  The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species.  In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat.  The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur if we finalize the proposed revised critical habitat designation.
        The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed revised critical habitat designation for the PMJM over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to reasonably forecast activity levels for projects beyond a 20-year timeframe.  The DEA identifies potential incremental costs as a result of the proposed revised critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing.  The DEA quantifies economic impacts of conservation efforts for the PMJM associated with the following categories of activity:  (1) Residential and commercial development; (2) roads/bridges, utilities, and bank stabilization projects; (3) water supply development; (4) U.S. Forest Service land management; (5) Rocky Flats NWR land management; and (6) gravel mining.
        The DEA estimates that total potential incremental economic impacts in areas proposed as revised critical habitat over the next 20 years will be $21.4 million to $52.9 million (approximately $2.02 million to $4.99 million on an annualized basis), assuming a 7-percent discount rate.  Approximately 95 percent of the incremental impacts attributed to the proposed designation of revised critical habitat are expected to be related to section 7 consultations with Federal agencies for residential and commercial development.
        Activities in proposed revised critical habitat units 9 and 10, West Plum Creek and Upper South Platte River, are projected to bear the largest incremental impacts attributable to the proposed rule, representing about 38 and 34 percent of total incremental impacts, respectively.
        As stated earlier, we are seeking data and comments from the public on the DEA and the draft environmental assessment, as well as all aspects of the proposed rule and our amended required determinations.  We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period.  In particular, we may exclude an area from revised 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 the species.
        Draft Environmental Assessment; National Environmental Policy Act

        When the range of a species includes States within the Tenth Circuit, pursuant to 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 complete an analysis under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA), on critical habitat designations.  The range of the PMJM includes the State of Colorado, which is within the Tenth Circuit.

        The draft environmental assessment presents the purpose of and need for critical habitat designation, the Proposed Action and alternatives, and an evaluation of the direct, indirect, and cumulative effects of the alternatives under the requirements of NEPA as implemented by the Council on Environmental Quality regulations (43 CFR 61292, et seq.) and according to the Department of the Interior's NEPA procedures.
        The draft environmental assessment will be used by the Service to decide whether or not critical habitat will be designated as proposed; if the Proposed Action requires refinement, or if another alternative is appropriate; or if further analyses are needed through preparation of an environmental impact statement.  If the Proposed Action is selected as described (or is changed minimally) and no further environmental analyses are needed, then a Finding of No Significant Impact (FONSI) would be the appropriate conclusion of this process.  A FONSI would then be prepared for the  environmental assessment.
        Required Determinations—Amended

        In our October 8, 2009, proposed rule (74 FR 52066), we indicated that we would defer our determination of compliance with several statutes and Executive Orders (EOs) until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA.  We have now made use of the DEA data in making these determinations.  In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Paperwork Reduction Act, E.O. 12866 and E.O. 12988 (Clarity of the Rule), and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951).  However, based on the DEA data, we are amending our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy Supply, Distribution, or Use), and the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency must 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.  Based on our DEA of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities.  Based on comments we receive, we may revise this determination as part of our final rulemaking.
        According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as 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 the rule, as well as the types of project modifications that may result.  In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
        To determine if the proposed designation of revised critical habitat for the PMJM would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (e.g., housing development, grazing, oil and gas production, timber harvesting).  In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually.  In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement.  Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat affects activities conducted, funded, permitted, or authorized by Federal agencies.
        Under the Act, designation of critical habitat only affects activities carried out, funded, or permitted by Federal agencies.  If we finalize the proposed revised critical habitat designation, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat.  Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        Some kinds of activities are unlikely to have any Federal involvement and so would not result in any additional effects under the Act.  However, there are some State laws that limit activities in designated critical habitat even where there is no Federal nexus.  If there is a Federal nexus, Federal agencies will be required to consult with us under section 7 of the Act on activities they fund, permit, or carry out that may affect critical habitat.  If we conclude, in a biological opinion, that a proposed action is likely to destroy or adversely modify critical habitat, we can offer “reasonable and prudent alternatives.”  Reasonable and prudent alternatives are alternative actions that can be implemented in a manner consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that would avoid destroying or adversely modifying critical habitat.
        Within the proposed revised critical habitat designation, the types of actions or authorized activities that we have identified as potential concerns and that may be subject to consultation under section 7 if there is a Federal nexus are:  Residential and commercial development; roads/bridges, utilities, and bank stabilization projects; water supply development; U.S. Forest Service land management practices; Rocky Flats NWR management practices; and gravel mining.  As discussed in Appendix A of the DEA, of the activities addressed in the analysis, only residential and commercial development, and construction and maintenance of roads/bridges, utilities, and bank stabilization projects are expected to experience incremental, administrative consultation costs that may be borne by small businesses.
        Any existing and planned projects, land uses, and activities that could affect the proposed revised critical habitat but have no Federal involvement would not require section 7 consultation with the Service, so they are not restricted by the requirements of the Act.  Federal agencies may need to reinitiate a previous consultation if discretionary involvement or control over the Federal action has been retained or is authorized by law and the activities may affect critical habitat.
        In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for the PMJM.  Please refer to our draft economic analysis of the proposed revised critical habitat designation for a more detailed discussion of potential economic impacts; we will summarize key points of the analysis below.

        The DEA, and its associated initial regulatory flexibility analysis, estimate that total potential incremental economic impacts in areas proposed as revised critical habitat over the next 20 years will be $2.02 million to $4.99 million annually, assuming a 7-percent discount rate.  Approximately 95 percent of the incremental impacts attributed to the proposed designation of critical habitat are expected to be related to section 7 consultations with Federal agencies for residential and commercial development.  Expected impacts to residential and commercial development include added costs primarily due to administrative consultations and required modifications to development project scope or design, including mitigation (or setting aside conservation lands), habitat restoration and enhancement, and project delays.  Small entities represent 97 percent of all entities in the residential and commercial development industry that may be affected.  Incremental costs also are expected related to road/bridge, utility, and bank stabilization construction and maintenance activities throughout proposed revised critical habitat.  Small entities represent 90 percent of all entities in the road/bridge, utility, and bank stabilization construction and maintenance industries that may be affected.  The Small Business Size Standard for the industry sectors that could potentially be affected by the proposed revised critical habitat designation are as follows:
        • New Housing Operative Builders—$33.5 million in annual receipts.
        • Land Subdivision—$7 million in annual receipts
        • Natural Gas Distribution—500 employees.
        • Water Supply and Irrigation Systems—$7 million annual receipts.
        • Pipeline Transportation of Natural Gas—$7 million annual receipts.
        In addition, government entities in the area may be affected.  Of these, 70 percent are small government jurisdictions (i.e., cities, counties, towns, townships, villages, school districts, or special districts with a population of less than 50,000).
        Of principal interest is residential and commercial development, and associated land subdivision, since an estimated 95 percent of potential incremental impacts may affect that industry sector.  The small businesses in this industry sector may bear a total of $19.6 to $49.9 million (at a 7-percent discount rate) in incremental impacts related to section 7 consultations over the next 20 years (through 2029).  However, when expressed as a percentage of a small developer's annual sales revenue, assuming that one small developer is required for each of the development projects, these monetary incremental impacts are likely to be small.  The incremental impact due to critical habitat designation is estimated to range from $115,000 to $292,000 per project.  An average of nine projects is anticipated to occur in critical habitat per year.  For new home builders, estimated annual sales in 2007 per developer in Colorado were $6.51 million.  Therefore, in years where a developer has a project in critical habitat, the estimated incremental impact represents 1.8 to 4.5 percent of that developer's annual sales in this industry.  However, we expect these costs to be incurred over a period of more than one year, since most developments will take longer than one year to complete (i.e., if a project takes two or more years to complete, the impact as a proportion of revenue in any one year will be substantially less).
        For land subdividers, the DEA assumes that annual sales per establishment are limited to the small business threshold of $7 million annually.  The estimated annual incremental impact therefore represents 1.6 to 4.2 percent of a subdivider's annual sales.  As discussed above, the incremental impact associated with each project is expected to be incurred over a period of more than one year. Thus, this analysis overstates the actual annual impact on a small entity.
        There are additional factors that may cause this analysis to overstate the actual impact on small residential and commercial developers, and on land subdividers.  First, it is likely that a portion of the impact will be realized by landowners in the form of higher housing prices.  The proportion of the total impact borne by landowners is unknown.  We believe the analysis gives a high estimate of possible development and that it is likely the actual amount of development will be less.  The analysis likely overstates the amount of development activity and, therefore, the total incremental impact, associated with residential and commercial development.  Lastly, anecdotal evidence and existing county building restrictions suggest that fewer properties in critical habitat are being developed than are quantified by the DEA.  This will likely further reduce the annual incremental impact borne per small entity.
        For road/bridge, utility, and bank stabilization construction and maintenance, the DEA estimates that incremental impacts will range from $392,000 to $818,000 over 20 years, or $37,000 to $77,200 annually.  Given an estimated average of four projects impacting critical habitat and requiring section 7 consultation each year, and assuming one small entity (municipality, wastewater district, etc.) conducts each activity, the impact to each small government entity involved would be $9,250 to $19,300.  We expect this to be a very small percentage of the annual budgets for the small governments that may be affected; however, we invite comments or information specific to these potential economic impacts to the small governments which may be affected by the proposed revised critical habitat designation.
        In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities.  Given the analysis above, the expected annual impacts to small businesses in the affected industries are significantly less than the annual revenues that could be garnered by a single small operator in those industries, and as such, impacts are low relative to potential revenues.  However, we are seeking public comments regarding the estimated incremental impacts of this proposed revised critical habitat designation on small entities.  Specifically, we are interested in  evidence suggesting that the incremental economic impact of section 7(a)(2) consultations in areas proposed as PMJM critical habitat is expected to be larger or smaller than estimated in this analysis.
        Executive Order 13211—Energy Supply, Distribution, and Use
        On May 18, 2001, the President issued E.O. 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) on regulations that significantly affect energy supply, distribution, and use.  E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions.  The Office of Management and Budget's guidance for implementing this Executive Order outlines nine outcomes that may constitute “a significant adverse effect” when compared to no regulatory action.  The only criterion that may be relevant to this analysis is increases in the cost of energy distribution in excess of one percent.  As described in the DEA, constructing and maintaining electrical and natural gas distribution and transmission systems is a type of utility project potentially occurring in the proposed revised critical habitat.  The DEA concludes that incremental impacts may be incurred; however, they are unlikely to reach the threshold of one percent.  Therefore, designation of revised critical habitat is not expected to lead to any adverse outcomes (such as a reduction in electricity production or an increase in the cost of energy production or distribution), and a Statement of Energy Effects is not required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:

        (a) This rule will not produce a Federal mandate.  In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.”  These terms are defined in 2 U.S.C. 658(5)-(7).  “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments,” with two exceptions.  First, it excludes “a condition of federal assistance.”  Second, it excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or Tribal governments “lack authority” to adjust accordingly.  At the time of enactment, these entitlement programs were:  Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.  “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”
        The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties.  Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7.  While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.  Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
        (b) As discussed in the DEA of the proposed designation of revised critical habitat for the PMJM, we do not believe that the rule would significantly or uniquely affect small governments because it would not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.  The DEA concludes that incremental impacts may occur due to project modifications that may need to be made for development activities; however, these are not expected to affect small governments to the extent described above.  Consequently, we do not believe that the proposed revised critical habitat designation would significantly or uniquely affect small government entities.  As such, a Small Government Agency Plan is not required.
        References Cited

        A complete list of all references we cited in the proposed rule and in this document is available on the Internet at http://www.regulations.gov or by contacting the Colorado Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
        Authors
        The primary authors of this document are the staff members of the Colorado Ecological Services Office.
        Authority

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

          Dated:  May 18, 2010
          Thomas L. Strickland,
          Assistant Secretary for Fish and Wildlife and Parks.

       [FR Doc.  2010-12775 Filed 5-26-10; 8:45 am]
      BILLING CODE S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 253 and 600
        [Docket No. 080228332-81199-01]
        RIN 0648-AW38
        Magnuson-Stevens Act Provisions; Interjurisdictional Fisheries Act; Disaster Assistance Programs; Fisheries Assistance Programs

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; withdrawal.

          SUMMARY:
          NMFS withdraws a proposed rule for proposed regulations governing the requests for determinations of fishery resource disasters as a basis for acquiring disaster assistance, which was published on January 15, 2009. Instead of going forward with a final rule directly resulting from the 2009 proposed rule, NMFS issued an internal policy on June 16, 2011.

          DATES:
          The proposed rule published on January 15, 2009 (74 FR 2467) is withdrawn as of May 30, 2013.

          FOR FURTHER INFORMATION CONTACT:

          Christopher L. Wright, Fishery Policy Analyst, 301-427-8570, or via email chris.wright@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        In accordance with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the Interjurisdictional Fisheries Act (IFA), NMFS (on behalf of the Secretary of Commerce) proposed regulations that were to govern the requests for determinations of fishery resource disasters as a basis for acquiring potential disaster assistance. The proposed regulations would have established definitions, characteristics of commercial fishery failures, fishery resource disasters, serious disruptions affecting future production, and harm incurred by fishermen. It also established requirements for initiating a review by NMFS, and the administrative process it would follow in response to such requests. The intended result of the proposed procedures and requirements was to clarify and interpret the fishery disaster assistance provisions of the MSA and the IFA through rulemaking and, thereby, ensure consistency and facilitate the processing of requests.

        On June 16, 2011, NMFS issued an internal policy for determinations of fishery resource disasters as a basis for acquiring potential disaster assistance titled: POLICY Guidance for Disaster Assistance Under Magnuson-Stevens Act 312(a) and Interjurisdictional Fisheries Act 308(b) and 308(d), http://www.nmfs.noaa.gov/sfa/sf3/disaster_policy2011.pdf. The purpose of this document is to provide guidance for evaluating requests for fisheries disaster relief under the provisions of section 312(a) and 315 of the MSA and sections 308(b) and 308(d) of the IFA.

          Authority:
          16 U.S.C 1801 et seq.

          Dated: May 24, 2013.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, Performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2013-12860 Filed 5-29-13; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [FWS-R4-ES-2008-0082; 9221050083-B2]
        RIN 1018-AU85
        Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for Reticulated Flatwoods Salamander; Proposed Designation of Critical Habitat for Frosted Flatwoods Salamander and Reticulated Flatwoods Salamander

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; extension of comment period and notice of public hearing.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service, are announcing the location and time of a public hearing to receive public comments on the proposal to split the current listing under the Endangered Species Act of 1973, as amended, of the threatened flatwoods salamander (Ambystoma cingulatum) into two distinct species: frosted flatwoods salamander (Ambystoma cingulatum) and reticulated flatwoods salamander (Ambystoma bishopi), due to a change in taxonomy. We also propose to list reticulated flatwoods salamander as endangered and propose critical habitat for both species. We are extending the public comment period until November 3, 2008. If you submitted comments previously, then you do not need to resubmit them because we have already incorporated them into the public record and we will fully consider them in preparation of our final determination.

          DATES:

            Public hearing: We will hold a public hearing on this proposed rule on October 22, 2008, from 7:30 p.m. to 9:30 p.m. An open house, where the public may view maps of critical habitat units and obtain other information on the proposed rule and draft economic analysis, will be held 1 hour prior to the hearing from 6:30 p.m. to 7:30 p.m.

            Comments: We are extending the public comment period until November 3, 2008. For more information, see “Public Comments Solicited” below.

          ADDRESSES:

            Public hearing: We will hold a public hearing at Pensacola Junior College, 1000 College Blvd., Hagler Auditorium (Bldg. 2), Room 252, Pensacola, FL 32504.

            Comments: You may submit comments by one of the following methods:

            Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

            U.S. mail or hand-delivery: Public Comments Processing, Attn: RIN 1018-AU85; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

          We will not accept e-mail or faxes. 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:
          Ray Aycock, Field Supervisor, U.S. Fish and Wildlife Service, Mississippi Field Office, 6578 Dogwood View Parkway, Jackson, MS 39213; telephone: 601-321-1122; facsimile: 601-965-4340. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:

        Background

        We, the U.S. Fish and Wildlife Service, published a proposed rule on February 7, 2007, (72 FR 5855) to designate critical habitat for the flatwoods salamander (Ambystoma cingulatum), a species that was listed as threatened under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ) in 1999 (64 FR 15691, April 1, 1999). As the result of a change in taxonomy, we subsequently proposed to split the listing of the flatwoods salamander into two distinct species: Frosted flatwoods salamander (Ambystoma cingulatum) and reticulated flatwoods salamander (Ambystoma bishopi) (73 FR 47257, August 13, 2008). Under our proposal, the frosted flatwoods salamander would maintain the status of threatened; however, we proposed to list the reticulated flatwoods salamander as endangered.
        We also proposed to designate critical habitat for both the frosted flatwoods salamander and the reticulated flatwoods salamander. In total, approximately 30,628 acres (ac) (12,395 hectares (ha)) (23,132 ac (9,363 ha) for the frosted flatwoods salamander and 7,496 ac (3,035 ha) for the reticulated flatwoods salamander) fall within the boundaries of the proposed critical habitat designation, which is located in the panhandle of Florida, southwestern Georgia, and southeastern South Carolina. On September 18, 2008, we published supplemental information to our proposed rule (73 FR 54125).

        In response to a request, we will hold a public hearing on this proposed rule as described in DATES and ADDRESSES. In addition, we are extending the close of the public comment period from October 14, 2008, until November 3, 2008.
        Public Comments Solicited

        We will accept written comments and information we receive on or before the date listed in DATES on our proposed critical habitat designation, proposed endangered status for reticulated flatwoods salamander, the draft economic analysis published in the Federal Register on August 13, 2008 (73 FR 47258), and proposed threatened status for frosted flatwoods salamander published in the Federal Register on September 18, 2008 (73 FR 54125). We will consider information and recommendations from all interested parties.

        You may submit your comments and materials by one of the methods listed in the ADDRESSES section. We will not accept comments you send by e-mail or fax or to an address not listed in the ADDRESSES section.

        We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you provide 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 and draft economic analysis, 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, Mississippi Field Office (see FOR FURTHER INFORMATION CONTACT).
        Author(s)
        The primary authors of this package are the staff of the Mississippi Field Office.
        Authority

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

           Dated: October 3, 2008.
          David M. Verhey,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. E8-23997 Filed 10-7-08; 8:45 am]
      BILLING CODE 4310-55-P


        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.

          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 process of coming to a 90-day finding under section 4(b)(3)(D) of the Act and § 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 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 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 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