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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
on constitutionally protected private property rights and avoid unnecessary takings of property. A taking of property includes actions that result in physical invasion or occupancy of private property, and regulations imposed on private property that substantially affect its value or use. In accordance with E.O.
12630, the final rule does not have significant takings implications. A
takings implication assessment is not required. The designation of critical habitat affects only Federal agency actions i.e., those actions authorized, funded, or carried out by Federal agencies. Therefore, the critical habitat designation does not affect landowner actions that do not require Federal funding or permits. This designation would not increase or decrease the current restrictions on private property concerning take of Southern Resident killer whales, nor do we expect the final critical habitat designation to impose substantial additional burdens on land use or substantially affect property values. Additionally, a final critical habitat designation would not preclude the development of Habitat Conservation Plans and issuance of incidental take permits for non-Federal actions. Owners of areas included within the critical habitat designation would continue to have the opportunity to use their property in ways consistent with the survival of listed Southern Resident killer whales.
Executive Order 12866, Regulatory Planning and Review The Office of Management and Budget OMB has determined that this final rule is significant for purposes of E.O.
12866 review. The FEA IEc 2021 and Final ESA Section 4b2 Report NMFS
2021b have been prepared to support the exclusion process under section 4b2 of the ESA and our consideration of alternatives to this rulemaking as required under E.O. 12866. To review these documents, see the ADDRESSES
section above.

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Executive Order 12988, Civil Justice Reform In accordance with E.O. 12988, we have determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3a and 3b2 of the E.O. We are designating critical habitat in accordance with the provisions of the ESA. This rule uses standard property descriptions and identifies the essential features within the designated areas to assist the public in understanding the habitat needs of Southern Resident killer whales.

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Executive Order 13132, Federalism The E.O. on Federalism, Executive Order 13132, requires agencies to take into account any federalism impacts of regulations under development. It includes specific consultation directives for situations in which a regulation may preempt state law or impose substantial direct compliance costs on state and local governments unless required by statute. Pursuant to E.O. 13132, we determined that this final rule does not have significant federalism effects and that a federalism assessment is not required. In keeping with Department of Commerce policies and consistent with ESA regulations at 50 CFR
424.16c1ii, we requested information for this rule from the appropriate state resources agencies in Washington, Oregon, and California.
The designation may have some benefit to state and local resource agencies in that the rule more clearly defines the physical and biological features essential to the conservation of the species and the coastal areas in which those features are found. While this designation would not alter where and what non-federally sponsored activities may occur, it may assist local governments in long-range planning rather than waiting for case-by-case ESA 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 would be required.
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 only on the Federal agency.
Executive Order 13175, Consultation and Coordination With Indian Tribal Governments The long-standing and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal Government.
This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes and with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. Pursuant to
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these authorities, lands have been retained by Indian Tribes or have been set aside for tribal use. These lands are managed by Indian Tribes in accordance with tribal goals and objectives within the framework of applicable treaties and laws. E.O. 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the Federal Government in matters affecting tribal interests.
There is a broad array of activities on Indian lands that may trigger ESA
section 7 consultations. In developing this rule to revise Southern Resident killer whale critical habitat, we reviewed maps and did not identify any areas under consideration for critical habitat along the coast that overlap with Indian lands, because the shoreward extent of the areas under consideration for designation is 6.1 m 20 ft water depth. Based on this, we preliminarily found that there were no Indian lands subject to consideration for possible exclusion. However, as discussed above, our preliminary assessment indicated that some federally-recognized tribes 83
FR 4235; January 30, 2018 have lands that may be in close proximity to areas under consideration for designation as critical habitat for Southern Resident killer whales, have usual and accustomed fishing areas that overlap with critical habitat areas, or may otherwise be affected. These include:
Confederated Tribes of the Chehalis Reservation, Hoh Indian Tribe, Makah Indian Tribe, Quileute Tribe, Quinault Indian Nation, and Shoalwater Bay Indian Tribe in Washington;
Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians, Confederated Tribes of the Siletz Indians, and Coquille Indian Tribe in Oregon; and Cher-Ae Heights Indian Community of the Trinidad Rancheria, Hoopa Valley Tribe, Karuk Tribe, Big Valley Band of Pomo Indians, Tolowa Dee-Ni Nation, Wiyot Tribe, and Yurok Tribe in California. We also identified the non-federally recognized Wintu Tribe of Northern California as a tribal entity that may be affected by critical habitat designation.
As discussed previously we contacted each of these tribes to solicit comments regarding Indian lands that may overlap and may warrant exclusion from critical habitat for Southern Resident killer whales. We also sought information from these tribes concerning other tribal activities that may be affected in areas other than tribal lands e.g., tribal fisheries in usual and accustomed coastal marine areas. We will continue to consult with affected tribes regarding
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