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Federal Register/Vol. 69, No. 168/Tuesday, August 31, 2004 / Rules and Regulations 53231 <br />unduly burden the judicial system and <br />meets the requirements of sections 3(a) <br />and 3(b)(2) of the Order. We are <br />designating critical habitat in <br />accordance with the provisions of the <br />Act, as amended. This rule uses <br />standard property descriptions and <br />identifies the primary constituent <br />elements within the designated areas to <br />assist the public in understanding the <br />habitat needs that are essential for the <br />conservation of the owl. <br />Paperwork Reduction Act of 1995 (44 <br />U.S.C. 3501 et seq.) <br />This rule does not contain new or <br />revised information collection for which <br />Office of Management and Budget <br />approval is required under the <br />Paperwork Reduction Act. An agency <br />may not conduct or sponsor, and a <br />person is not required to respond to, a <br />collection of information unless it <br />displays a currently valid OMB control <br />number. <br />National Environmental Policy Act <br />Our position is that, outside the Tenth <br />Circuit, we do not need to prepare <br />environmental analyses as defined by <br />the NEPA in connection with <br />designating critical habitat under the <br />Endangered Species Act of 1973, as <br />amended. We published a notice <br />outlining our reasons for this <br />determination in the Federal Register <br />on October 25, 1983 (48 FR 49244). This <br />assertion was upheld in the courts of the <br />Ninth Circuit (Douglas County v. <br />Babbitt, 48 F.3d 1495 (9th Cir. Ore. <br />1995), cert. denied 116 S. Ct. 698 (1996). <br />However, when the range of the species <br />includes States within the Tenth <br />Circuit, such as that of the owl, <br />pursuant to the Tenth Circuit ruling in <br />Carbon County Board of Commissioners <br />v. U.S. Fish and Wildlife Service, 75 <br />F.3d 1429 (10th Cir. 1996), we <br />undertake a NEPA analysis for critical <br />habitat designation. We completed an <br />environmental assessment and finding <br />of no significant impact on the <br />designation of critical habitat for the <br />owl. <br />Government -to- Government <br />Relationship With Tribes <br />In accordance with the President's <br />memorandum of April 29, 1994, <br />"Government -to- Government Relations <br />with Native American Tribal <br />Governments" (59 FR 22951), Executive <br />Order 13175, and the Department of the <br />Interior's manual at 512 DM 2, we <br />readily acknowledge our responsibility <br />to communicate meaningfully with <br />recognized Federal Tribes on a <br />government -to- government basis. The <br />critical habitat for owl does not contain <br />any Tribal lands or lands that we have <br />identified as impacting Tribal trust <br />resources. <br />References Cited <br />A complete list of all references cited <br />in this proposed rule is available upon <br />request from the New Mexico Ecological <br />Services Field Office (see ADDRESSES <br />section). <br />Authors <br />The primary authors of this notice are <br />the New Mexico Ecological Services <br />Field Office staff (see ADDRESSES <br />section). <br />List of Subjects in 50 CFR Part 17 <br />Endangered and threatened species, <br />Exports, Imports, Reporting and <br />recordkeeping requirements, <br />Transportation. <br />Regulation Promulgation <br />■ Accordingly, we amend part 17, <br />subchapter B of chapter I, title 50 of the <br />Code of Federal Regulations as set forth <br />below: <br />PART 17— [AMENDED] <br />■ 1. The authority citation for part 17 <br />continues to read as follows: <br />Authority: 16 U.S.C. 1361 -1407; 16 U.S.C. <br />1531 -1544; 16 U.S.C. 4201 -4245; Pub. L. 99- <br />625, 100 Stat. 3500; unless otherwise noted. <br />■ 2. Amend § 17.95(b) by revising critical <br />habitat for the Mexican spotted owl <br />( Strix occidentalis lucida) in the same <br />alphabetical order as this species occurs <br />in § 17.11(h). <br />§17.95 Critical habitat —fish and wildlife. <br />(b) Birds. * * * <br />Mexican Spotted Owl (Strict occidentalis <br />lucida) <br />(1) Critical habitat units for the States <br />of Arizona, Colorado, New Mexico, and <br />Utah are depicted on the maps below. <br />Larger maps and digital files for all four <br />States and maps of critical habitat units <br />in the State of New Mexico are available <br />at the New Mexico Ecological Services <br />Field Office, 2105 Osuna N.E., <br />Albuquerque, New Mexico 87113, <br />telephone (505) 346 -2525. For the <br />States of Arizona, Colorado, and Utah, <br />maps of the critical habitat units <br />specific to each State are available at the <br />following Service offices— Arizona <br />Ecological Services Field Office, 2321 <br />West Royal Palm Road, Suite 103, <br />Phoenix, Arizona 85021, telephone <br />(602) 640 -2720; Colorado State Sub - <br />Office, 764 Horizon Drive South, Annex <br />A, Grand Junction, Colorado 81506, <br />telephone (970) 243 -2778; and Utah <br />Ecological Services Field Office, Lincoln <br />Plaza, 145 East 1300 South, Suite 404, <br />Salt Lake City, Utah 84115, telephone <br />(801) 524 -5001. <br />(2) Critical habitat units are <br />designated in portions of McKinley, Rio <br />Arriba, Sandoval, and Socorro Counties <br />in New Mexico; Apache, Cochise, <br />Coconino, Graham, and Pima Counties <br />in Arizona; Carbon, Emery, Garfield, <br />Grand, Iron, Kane, Washington, and <br />Wayne Counties in Utah; and Custer, <br />Douglas, El Paso, Fremont, Huerfano, <br />Jefferson, Pueblo, and Teller Counties in <br />Colorado. <br />(3)(i) The primary constituent <br />elements essential to the conservation of <br />the owl include those physical and <br />biological features that support nesting, <br />roosting, and foraging. These elements <br />were determined from studies of owl <br />behavior and habitat use throughout the <br />range of the owl. Although the <br />vegetative communities and structural <br />attributes used by the owl vary across <br />the range of the subspecies, they consist <br />primarily of mixed conifer forests or <br />canyons. The mixed - conifer, pine -oak <br />communities and canyon habitat appear <br />to be the most frequently used <br />community throughout most portions of <br />the subspecies' range (Skaggs and Raitt <br />1988; Ganey and Balda 1989, 1994; <br />Gutierrez and Rinkevich 1991, Service <br />1995). Although the structural <br />characteristics of owl habitat vary <br />depending on uses of the habitat (e.g., <br />nesting, roosting, foraging) and <br />variations in the plant communities <br />over the range of the subspecies, some <br />general attributes are common to the <br />subspecies' life - history requirements <br />throughout its range. <br />(ii) Protected and restricted habitat are <br />two of the three types of owl habitat <br />discussed in the Recovery Plan and are <br />used as the basis for defining critical <br />habitat. Protected areas include known <br />owl sites (PACs), areas in mixed - conifer <br />and pine -oak types with greater than 40 <br />percent slopes where timber harvest has <br />not occurred in the past 20 years and <br />administratively reserved lands, such as <br />Wilderness Areas or Research Natural <br />Areas. Restricted habitat includes <br />mixed- conifer forest, pine -oak forest, <br />and riparian areas outside of protected <br />areas. This final rule does not include <br />all areas that meet the definition of <br />protected and restricted habitat. <br />(iii) Canyon habitats used for nesting <br />and roosting are typically characterized <br />by cooler conditions found in steep, <br />narrow canyons, often containing <br />crevices, ledges, and/or caves. These <br />canyons frequently contain small <br />clumps or stringers of ponderosa pine, ,. <br />Douglas -fir, white fir, and/or pinyon - <br />juniper. Deciduous riparian and upland <br />