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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules
designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed for the proposed designation of critical habitat for the Penasco least chipmunk, and it concludes that, if adopted, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.
FederalismExecutive Order 13132
In accordance with E.O. 13132
Federalism, this proposed rule does not have significant federalism effects.
A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7
consultations to occur.
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7a2 of the Act would be required. While non-Federal entities that receive Federal funding, assistance,
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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.
Civil Justice ReformExecutive Order 12988
In accordance with Executive Order 12988 Civil Justice Reform, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3a and 3b2
of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed areas of designated critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.
Paperwork Reduction Act of 1995 44
U.S.C. 3501 et seq.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget OMB under the Paperwork Reduction Act of 1995
44 U.S.C. 3501 et seq. is not required.
We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.
National Environmental Policy Act 42
U.S.C. 4321 et seq.
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act NEPA; 42 U.S.C. 4321 et seq. in connection with listing species and designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983
48 FR 49244. This position was upheld by the U.S. Court of Appeals for the Ninth Circuit Douglas County v.
Babbitt, 48 F.3d 1495 9th Cir. 1995, cert. denied 516 U.S. 1042 1996.
However, when the range of the species includes States within the Tenth Circuit, such as that of the Penasco least chipmunk, under the Tenth Circuit ruling in Catron County Board of
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Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 10th Cir. 1996, we undertake a NEPA analysis for critical habitat designation. We invite the public to comment on the extent to which this proposed regulation may have a significant impact on the human environment, or fall within one of the categorical exclusions for actions that have no individual or cumulative effect on the quality of the human environment. We will complete our analysis, in compliance with NEPA, before finalizing this proposed rule.
Government-to-Government Relationship With Tribes In accordance with the Presidents memorandum of April 29, 1994
Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951, Executive Order 13175 Consultation and Coordination with Indian Tribal Governments, and the Department of the Interiors manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206
of June 5, 1997 American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act, we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes.
In a letter dated November 27, 2017, we informed the Mescalero Apache Tribe of our intent to conduct a status assessment for the Penasco least chipmunk. On July 5, 2018, we shared the draft of the SSA report with the Mescalero Apache Tribe for their partner review. We will continue to work with Tribal entities during the development of a final rule for the designation of critical habitat for the Penasco least chipmunk.
References Cited A complete list of references cited in this proposed rule is available on the internet at https www.regulations.gov and upon request from the New Mexico Ecological Services Field Office see FOR
FURTHER INFORMATION CONTACT.
Authors The primary authors of this proposed rule are the staff members of the Fish and Wildlife Services Species Assessment Team and the New Mexico Ecological Services Field Office.

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