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Federal Register / Vol. 86, No. 199 / Tuesday, October 19, 2021 / Proposed Rules FederalismExecutive Order 13132
In accordance with Executive Order 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, 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.

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Civil Justice ReformExecutive Order 12988
In accordance with Executive Order 12988 Civil Justice Reform, the Office of the Solicitor has determined that the rule would 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
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Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the physical or biological features essential to the conservation of the species. The proposed areas of 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 regulations adopted pursuant to section 4a of 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.
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
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remain sensitive to Indian culture, and to make information available to Tribes.
The tribal lands in California included in this proposed designation of critical habitat are the lands of the Tule River Indian Tribe of the Tule River Reservation. We used the criteria described above under Criteria Used To Identify Critical Habitat to identify Tribal lands that are occupied by the SSN DPS of fisher that contain the feature essential to the conservation of the species. We will consider this area for exclusion from the final critical habitat designation to the extent consistent with the requirements of section 4b2 of the Act. We began government-to-government consultation with the Tule River Indian Tribe of the Tule River Reservation on September 13, 2019, in a prenotification letter informing the Tribe that we had begun an analysis of the species status and an evaluation of potential critical habitat areas for the fisher. We solicited information on the Tribes activities and any section 7 consultation history in coordination with BIA, and invited them to discuss the critical habitat process. We have since had informal government-to-government discussions with the Tribe to explain the proposal to designate critical habitat for the SSN
DPS of fisher, and to describe the exclusion process under section 4b2
of the Act. Beginning in September 2020, we have been coordinating with the Tribe and BIA to develop fisherspecific conservation measures that the Tribe can implement to aid in fisher conservation, and to ensure compliance of the Tribes and BIAs activities through section 7 of the Act. Finally, the Tribe, in coordination with BIA, had an opportunity to review the draft IEM, and their comments were incorporated into the final IEM. We will continue to work with the Tribe during the development of a final rule for the designation of critical habitat for the SSN DPS of fisher.
References Cited A complete list of references cited in this rulemaking is available on the internet at http www.regulations.gov and upon request from the Sacramento Fish and Wildlife 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 Sacramento Fish and Wildlife Office.

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