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 />
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