Endangered and Threatened Wildlife and Plants; Endangered Species Status for the Peñasco Least Chipmunk and Designation of Critical Habitat

Citation86 FR 53583
Record Number2021-20934
Published date28 September 2021
CourtFish And Wildlife Service,Interior Department
Federal Register, Volume 86 Issue 185 (Tuesday, September 28, 2021)
[Federal Register Volume 86, Number 185 (Tuesday, September 28, 2021)]
                [Proposed Rules]
                [Pages 53583-53609]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-20934]
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                DEPARTMENT OF THE INTERIOR
                Fish and Wildlife Service
                50 CFR Part 17
                [Docket No. FWS-R2-ES-2020-0042; FF09E21000 FXES11110900000 212]
                RIN 1018-BD94
                Endangered and Threatened Wildlife and Plants; Endangered Species
                Status for the Pe[ntilde]asco Least Chipmunk and Designation of
                Critical Habitat
                AGENCY: Fish and Wildlife Service, Interior.
                ACTION: Proposed rule.
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                SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
                12-month finding on a petition to list the Pe[ntilde]asco least
                chipmunk (Neotamias minimus atristriatus), a mammal from New Mexico, as
                an endangered or threatened species under the Endangered Species Act of
                1973, as amended (Act). After review of the best available scientific
                and commercial information, we find that listing the species is
                warranted. Accordingly, we propose to list the Pe[ntilde]asco least
                chipmunk as an endangered species under the Act. If we finalize this
                rule as proposed, it would add this species to the List of Endangered
                and Threatened Wildlife and extend the Act's protections to the
                species. We also propose to designate critical habitat for the
                Pe[ntilde]asco least chipmunk under the Act. The proposed critical
                habitat designation includes approximately 2,660 hectares (6,574 acres)
                in three units in New Mexico. We also announce the availability of a
                draft economic analysis of the proposed designation of critical
                habitat.
                DATES: We will accept comments on the proposed rule or draft economic
                analysis that are received or postmarked on or before November 29,
                2021. Comments submitted electronically using the Federal eRulemaking
                Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern
                Time on the closing date. We must receive requests for public hearings,
                in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by
                November 12, 2021.
                ADDRESSES: You may submit comments by one of the following methods:
                 (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter the docket number or RIN
                for this rulemaking (presented above in the document headings). For
                best results, do not copy and paste either number; instead, type the
                docket number or RIN into the Search box using hyphens. Then, click on
                the Search button. On the resulting page, in the Search panel on the
                left side of the screen, under the Document Type heading, check the
                Proposed Rule box to locate this document. You may submit a comment by
                clicking on ``Comment.''
                 (2) By hard copy: Submit by U.S. mail to: Public Comments
                Processing, Attn: FWS-R2-ES-2020-0042, U.S. Fish and Wildlife Service,
                MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
                 We request that you send comments only by the methods described
                above. We will post all comments on https://www.regulations.gov. This
                generally means that we will post any personal information you provide
                us (see Public Comments, below, for more information).
                 Availability of supporting materials: For the critical habitat
                designation, the coordinates or plot points or both from which the maps
                are generated are included in the administrative record and are
                available on the New Mexico Ecological Services Field Office website at
                https://www.fws.gov/southwest/es/NewMexico/ and at https://www.regulations.gov under Docket No. FWS-R2-ES-2020-0042. Any
                additional tools or supporting information that we may develop for the
                critical habitat designation will also be available at the Service
                website set out above and may also be included in the preamble and/or
                at https://www.regulations.gov.
                FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor,
                U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
                Office, 2105 Osuna Road NE, Albuquerque, NM 87113; telephone 505-346-
                2525. Persons who use a telecommunications device for the deaf (TDD)
                may call the Federal Relay Service at 800-877-8339.
                SUPPLEMENTARY INFORMATION:
                Executive Summary
                 Why we need to publish a rule. Under the Act, if we determine that
                a species is an endangered or threatened species throughout all or a
                significant portion of its range, we are required to promptly publish a
                proposal in the Federal
                [[Page 53584]]
                Register and make a determination on our proposal within 1 year. To the
                maximum extent prudent and determinable, we must designate critical
                habitat for any species that we determine to be an endangered or
                threatened species under the Act. Listing a species as an endangered or
                threatened species and designation of critical habitat can be
                accomplished only by issuing a rule.
                 What this document does. We propose to list the Pe[ntilde]asco
                least chipmunk as an endangered species under the Act, and we propose
                the designation of critical habitat for the species.
                 The basis for our action. Under the Act, we may determine that a
                species is an endangered or threatened species based on any of five
                factors: (A) The present or threatened destruction, modification, or
                curtailment of its habitat or range; (B) overutilization for
                commercial, recreational, scientific, or educational purposes; (C)
                disease or predation; (D) the inadequacy of existing regulatory
                mechanisms; or (E) other natural or manmade factors affecting its
                continued existence. We have determined that stressors affecting the
                viability of the Pe[ntilde]asco least chipmunk include vegetation
                shifts, wildfire, forest encroachment, recreation, development, and
                land use (Factor A, disease (Factor C), nonnative species (Factors A
                and C), and small population size and lack of connectivity (Factor E).
                 Although small population size is the primary stressor to the
                Pe[ntilde]asco least chipmunk, Risk Factors for Pe[ntilde]asco Least
                Chipmunk, below, presents a broader discussion of the threats. We have
                found that existing regulatory mechanisms do not adequately reduce the
                threats acting on the species to eliminate the risk of extinction
                (Factor D).
                 Section 4(a)(3) of the Act requires the Secretary of the Interior
                (Secretary) to designate critical habitat concurrent with listing to
                the maximum extent prudent and determinable. Section 3(5)(A) of the Act
                defines critical habitat as (i) the specific areas within the
                geographical area occupied by the species, at the time it is listed, on
                which are found those physical or biological features (I) essential to
                the conservation of the species and (II) which may require special
                management considerations or protections; and (ii) specific areas
                outside the geographical area occupied by the species at the time it is
                listed, upon a determination by the Secretary that such areas are
                essential for the conservation of the species. Section 4(b)(2) of the
                Act states that the Secretary must make the designation on the basis of
                the best available scientific data after taking into consideration the
                economic impact, the impact on national security, and any other
                relevant impacts of specifying any particular area as critical habitat.
                 Peer review. In accordance with our joint policy on peer review
                published in the Federal Register on July 1, 1994 (59 FR 34270), and
                our August 22, 2016, memorandum updating and clarifying the role of
                peer review of listing actions under the Act, we sought the expert
                opinions of five appropriate specialists regarding the species status
                assessment report. We received comments from three, and their input
                informed this proposed rule. The purpose of peer review is to ensure
                that our listing and critical habitat designations are based on
                scientifically sound data, assumptions, and analyses. Additionally, we
                received reviews from several partners, including the State of New
                Mexico and U.S. Forest Service.
                 Because we will consider all comments and information we receive
                during the comment period, our final determinations may differ from
                this proposal. Based on the new information we receive (and any
                comments on that new information), we may conclude that the species is
                threatened instead of endangered, or we may conclude that the species
                does not warrant listing as either an endangered species or a
                threatened species. For critical habitat, our final designation may not
                include all areas proposed, may include some additional areas that meet
                the definition of critical habitat, and may exclude some areas if we
                find the benefits of exclusion outweigh the benefits of inclusion.
                Information Requested
                Public Comments
                 We intend that any final action resulting from this proposed rule
                will be based on the best scientific and commercial data available and
                be as accurate and as effective as possible. Therefore, we request
                comments or information from other concerned governmental agencies,
                Native American tribes, the scientific community, industry, or any
                other interested parties concerning this proposed rule. We particularly
                seek comments concerning:
                 (1) The species' biology, range, and population trends, including:
                 (a) Biological or ecological requirements of the species, including
                habitat requirements for feeding, breeding, and sheltering;
                 (b) Genetics and taxonomy;
                 (c) Historical and current range, including distribution patterns;
                 (d) Historical and current population levels, and current and
                projected trends; and
                 (e) Past and ongoing conservation measures for the species, its
                habitat, or both.
                 (2) Factors that may affect the continued existence of the species,
                which may include habitat modification or destruction, overutilization,
                disease, predation, the inadequacy of existing regulatory mechanisms,
                or other natural or manmade factors.
                 (3) Biological, commercial trade, or other relevant data concerning
                any threats (or lack thereof) to the species and existing regulations
                that may be addressing those threats.
                 (4) Additional information concerning the historical and current
                status, range, distribution, and population size of the species,
                including the locations of any additional populations.
                 (5) The reasons why we should or should not designate habitat as
                ``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
                seq.), including information to inform the following factors that the
                regulations identify as reasons why designation of critical habitat may
                be not prudent:
                 (a) The species is threatened by taking or other human activity and
                identification of critical habitat can be expected to increase the
                degree of such threat to the species;
                 (b) The present or threatened destruction, modification, or
                curtailment of a species' habitat or range is not a threat to the
                species, or threats to the species' habitat stem solely from causes
                that cannot be addressed through management actions resulting from
                consultations under section 7(a)(2) of the Act;
                 (c) Areas within the jurisdiction of the United States provide no
                more than negligible conservation value, if any, for a species
                occurring primarily outside the jurisdiction of the United States; or
                 (d) No areas meet the definition of critical habitat.
                 (6) Specific information on:
                 (a) The amount and distribution of Pe[ntilde]asco least chipmunk
                habitat;
                 (b) What areas, that were occupied at the time of listing (i.e.,
                are currently occupied) and that contain the physical or biological
                features essential to the conservation of the species, should be
                included in the designation and why;
                 (c) Any additional areas occurring within the range of the species,
                i.e., the Sacramento and White Mountains in New Mexico, that should be
                included in the designation because they (1) are occupied at the time
                of listing and
                [[Page 53585]]
                contain the physical or biological features that are essential to the
                conservation of the species and that may require special management
                considerations, or (2) are unoccupied at the time of listing and are
                essential for the conservation of the species;
                 (d) Special management considerations or protection that may be
                needed in critical habitat areas we are proposing, including managing
                for the potential effects of climate change; and
                 (e) What areas not occupied at the time of listing are essential
                for the conservation of the species. We particularly seek comments:
                 (i) Regarding whether occupied areas are adequate for the
                conservation of the species;
                 (ii) Providing specific information regarding whether or not
                unoccupied areas would, with reasonable certainty, contribute to the
                conservation of the species and contain at least one physical or
                biological feature essential to the conservation of the species; and
                 (iii) Explaining whether or not unoccupied areas fall within the
                definition of ``habitat'' at 50 CFR 424.02 and why.
                 (7) Land use designations and current or planned activities in the
                subject areas and their possible impacts on proposed critical habitat.
                 (8) Any probable economic, national security, or other relevant
                impacts of designating any area that may be included in the final
                designation, and the related benefits of including or excluding
                specific areas.
                 (9) Information on the extent to which the description of probable
                economic impacts in the draft economic analysis is a reasonable
                estimate of the likely economic impacts.
                 (10) Information on land ownership within proposed critical habitat
                areas, particularly Tribal land ownership (allotments, trust, and/or
                fee) so that the Service may best implement Secretarial Order 3206
                (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
                and the Endangered Species Act).
                 (11) Whether any specific areas we are proposing for critical
                habitat designation should be considered for exclusion under section
                4(b)(2) of the Act, and whether the benefits of potentially excluding
                any specific area outweigh the benefits of including that area under
                section 4(b)(2) of the Act. Specific information we seek includes
                information on any conservation plans within the proposed designated
                critical habitat areas that provide conservation for the Pe[ntilde]asco
                least chipmunk and its habitat. For any additional areas that you may
                request be excluded from the designation, we will undertake an
                exclusion analysis if you provide credible information regarding the
                existence of a meaningful economic or other relevant impact supporting
                a benefit of inclusion or if we otherwise decide to exercise the
                discretion to evaluate the areas for possible exclusion.
                 (12) Whether we could improve or modify our approach to designating
                critical habitat in any way to provide for greater public participation
                and understanding, or to better accommodate public concerns and
                comments.
                 (13) Ongoing or proposed conservation efforts that could result in
                direct or indirect ecological benefits to the associated habitat for
                the species; as such, those efforts would lend to the recovery of the
                species and therefore areas covered may be considered for exclusion
                from the final critical habitat designation.
                 Please include sufficient information with your submission (such as
                scientific journal articles or other publications) to allow us to
                verify any scientific or commercial information you include.
                 Please note that submissions merely stating support for, or
                opposition to, the action under consideration without providing
                supporting information, although noted, will not be considered in
                making a determination, as section 4(b)(1)(A) of the Act directs that
                determinations as to whether any species is an endangered or a
                threatened species must be made ``solely on the basis of the best
                scientific and commercial data available.''
                 You may submit your comments and materials concerning this proposed
                rule by one of the methods listed in ADDRESSES. We request that you
                send comments only by the methods described in ADDRESSES.
                 If you submit information via https://www.regulations.gov, your
                entire submission--including any personal identifying information--will
                be posted on the website. If your submission is made via a hardcopy
                that includes personal identifying information, you may request at the
                top of your document that we withhold this information from public
                review. However, we cannot guarantee that we will be able to do so. We
                will post all hardcopy submissions on https://www.regulations.gov.
                 Comments and materials we receive, as well as supporting
                documentation we used in preparing this proposed rule, will be
                available for public inspection on https://www.regulations.gov.
                Public Hearing
                 Section 4(b)(5) of the Act provides for a public hearing on this
                proposal, if requested. Requests must be received by the date specified
                above in DATES. Such requests must be sent to the address shown in FOR
                FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
                proposal, if requested, and announce the date, time, and place of the
                hearing, as well as how to obtain reasonable accommodations, in the
                Federal Register and local newspapers at least 15 days before the
                hearing. For the immediate future, we will provide these public
                hearings using webinars that will be announced on the Service's
                website, in addition to the Federal Register. The use of these virtual
                public hearings is consistent with our regulations at 50 CFR
                424.16(c)(3).
                Previous Federal Actions
                 WildEarth Guardians petitioned us to list Pe[ntilde]asco least
                chipmunk in October 2011. The Service published a substantial 90-day
                finding and a warranted but precluded 12-month finding on November 21,
                2012 (77 FR 69994), stating that listing of the subspecies was
                warranted due to the present or threatened destruction, modification,
                or curtailment of its habitat or range and the fragmentation and
                isolation of small populations. In 2018, we completed a species status
                assessment (SSA) to provide the biological support for a decision on
                whether or not to propose to list the subspecies as threatened or
                endangered under the Act and, if so, where to propose designating
                critical habitat. This proposed listing rule also constitutes our 12-
                month petition finding for the species.
                Supporting Documents
                 A species status assessment (SSA) team prepared an SSA report for
                the Pe[ntilde]asco least chipmunk. The SSA team was composed of Service
                biologists, in consultation with other species experts. The SSA report
                represents a compilation of the best scientific and commercial data
                available concerning the status of the species, including the impacts
                of past, present, and future factors (both negative and beneficial)
                affecting the species. The Service sent the SSA report to five
                independent peer reviewers, and three provided a review of the
                document. The Service also sent the SSA report to three partner
                agencies, including the State of New Mexico, U.S. Forest Service, and
                the Mescalero Apache Tribe, for review. We received reviews from the
                U.S. Forest Service and the State of New Mexico.
                [[Page 53586]]
                I. Proposed Listing Determination
                Background
                 The Pe[ntilde]asco least chipmunk (Neotamias minimus atristriatus)
                is currently recognized as one of 17 subspecies of least chipmunk
                (Neotamias [=Tamias] minimus) (Wilson and Reeder 2005, p. 815). Least
                chipmunks are smaller than most other chipmunk species and belong to
                the family Sciuridae. The Pe[ntilde]asco least chipmunk is known from
                the Sacramento Mountains and White Mountains in Lincoln and Otero
                Counties in southern New Mexico.
                 Pe[ntilde]asco least chipmunks are grayish-brown mixed with
                cinnamon-buff on the rump and thighs (Sullivan 1993, p. 1), with a
                blackish head with white and cinnamon, and a whitish patch behind each
                ear. The sides of their bodies are light brown, and underparts are
                whitish with buff; their feet are light pink-cinnamon; the tail is
                blackish or brown with pinkish-cinnamon; and dark stripes on the back
                and head are blackish to blackish-brown, edged with tawny along the
                spine, and bordered with white on the face and sides (Sullivan 1993,
                pp. 1-2). The Pe[ntilde]asco least chipmunk has pale yellowish orange
                hindfeet, a light beige, yellowish, or orange belly, and dark underfur
                (Frey 2010, p. 11). A full species description and description of its
                habitat can be found in chapter 2 of the SSA report.
                 The Pe[ntilde]asco least chipmunk was first described as a new
                species, Eutamias atristriatus, in 1913 based on 10 specimens collected
                from ponderosa pine forest in the Sacramento Mountains in 1902 (Bailey
                1913, entire). This taxonomy has been revised multiple times as the
                taxonomy of chipmunks and least chipmunks changed, including use of the
                synonyms Eutamias and Tamias for Neotamias. Howell (1929, entire)
                designated the taxon a subspecies of least chipmunk, Tamias minimus
                atristriatus. Conley (1970, entire) purported that the South Sacramento
                (= Sacramento Mountains) population was the only population of least
                chipmunks in New Mexico worthy of nomenclatural distinction based on
                morphological distinctiveness. However, Sullivan and Peterson (1988, p.
                21) recommended the retention of N. m. atristriatus as a subspecies
                that included both the New Mexico White Mountains and Sacramento
                Mountains, based on more in-depth morphological and genetic analyses.
                Verts and Carraway (2001, entire) and Wilson and Reeder (2005, p. 815)
                continue to support N. m. atristriatus as a recognized subspecies of N.
                minimus. Least chipmunks are currently recognized as belonging to the
                genus Neotamias (Patterson and Norris 2016, p. 248). There is currently
                no disagreement regarding the distinctiveness of the subspecies from
                other subspecies of least chipmunk, nor from the sympatric gray-footed
                chipmunk (N. canipes). The Pe[ntilde]asco least chipmunk is thus
                currently recognized as a valid subspecies, N. minimus atristriatus
                (Wilson and Reeder 2005 p. 815).
                 Habitat occupied by Pe[ntilde]asco least chipmunk varies by
                population between the Sacramento and White Mountains. In the
                Sacramento Mountains, Pe[ntilde]asco least chipmunk habitat use has
                generally been mature, open ponderosa pine forest savanna and adjacent
                valley meadows (Frey and Hays 2017, p. 1). Specimens of the
                Pe[ntilde]asco least chipmunk from the Sacramento Mountains were
                originally described from the yellow pine zone (= ponderosa pine)
                (Bailey 1913, p. 130) and within the transition zone from the juncture
                of yellow pines and junipers up to the edge of spruce-fir forest
                (Bailey 1931, p. 91). However, the Pe[ntilde]asco least chipmunk has
                not been detected in the Sacramento Mountains since 1966, so our
                understanding of habitat use and distribution in that area is limited
                to historical records and reports.
                 In the White Mountains, the Pe[ntilde]asco least chipmunk is
                associated with the high-elevation subalpine Thurber's fescue meadow
                biotic community (Frey and Hays 2017, p. 34). This habitat is
                distinctly different from the lower elevation, montane meadow grassland
                communities within mixed conifer and ponderosa pine forest zones (Dyer
                and Moffett 1999, entire; Dick-Peddie 1993, pp. 101 104), as would be
                found in the Sacramento Mountains. In the White Mountains, our
                understanding of subspecies occurrence and habitat use is informed by
                capture information as recent as 2018, but is still limited by few
                observational records of the subspecies.
                 Least chipmunks forage mainly on the ground or in shrubs
                (Hoffmeister 1986, p. 15). They eat a variety of seeds of shrubs,
                forbs, and some conifers, and other plant parts and fungi as their main
                food sources; they also feed on animal foods such as arthropods,
                carrion, and bird eggs (Bailey 1931, p. 91; Vaughn 1974, pp. 770-772;
                Reid 2006, p. 212). The least chipmunk does not develop additional fat
                deposits in the fall, but relies primarily on brief periods of activity
                to consume cached food for survival over the winter (Verts and Carraway
                2001, p. 7), hibernating (in this case, overwintering with periods of
                both torpor and activity) in special underground chambers (Reid 2006,
                p. 212). Pe[ntilde]asco least chipmunks in the White Mountains likely
                forage primarily on the seeds and flowers of forbs, particularly
                species of Asteraceae (Frey and Hays 2017, p. 34). Bailey (1931, p. 91)
                observed the subspecies foraging on sunflower (Helianthus spp.) seeds
                along fencelines and on wheat (Triticum sp.) and oats (Avena sativa) at
                the edges of agricultural fields in the Sacramento Mountains. The diet
                also includes flowers and fruits of gooseberry (Ribes spp.) and wild
                strawberry (Fragaria spp.), pinyon (Pinus edulis) nuts, Gambel oak
                (Quercus gambelii) acorns, insects, and other items (Sullivan 1993, p.
                3). Like other least chipmunks, the Pe[ntilde]asco least chipmunk
                likely has relatively low water requirements, which may allow it to
                exploit the drier conditions of open subalpine meadows (Frey and Hays
                2017, p. 34).
                 Least chipmunk breeding takes place soon after emergence from the
                hibernation chambers (Reid 2006, p. 212). In spring, females typically
                produce one litter of four to five pups (Skryja 1974, p. 223), but the
                size of the litter can range from three to eight, with young being born
                in May or June (Reid 2006, p. 212). For Pe[ntilde]asco least chipmunks,
                young are thought to be born in mid- to late-summer, as half-grown
                juveniles were observed historically in early September in the
                Sacramento Mountains (Bailey 1931, p. 91). The average lifespan of
                least chipmunks overall is 0.7 years (Erlien and Tester 1984, p. 2),
                but individuals have been known to live up to 6 years (Reid 2006, p.
                212).
                Regulatory and Analytical Framework
                Regulatory Framework
                 Section 4 of the Act (16 U.S.C. 1533) and its implementing
                regulations (50 CFR part 424) set forth the procedures for determining
                whether a species is an ``endangered species'' or a ``threatened
                species.'' The Act defines an endangered species as a species that is
                ``in danger of extinction throughout all or a significant portion of
                its range,'' and a threatened species as a species that is ``likely to
                become an endangered species within the foreseeable future throughout
                all or a significant portion of its range.'' The Act requires that we
                determine whether any species is an ``endangered species'' or a
                ``threatened species'' because of any of the following factors:
                 (A) The present or threatened destruction, modification, or
                curtailment of its habitat or range;
                 (B) Overutilization for commercial, recreational, scientific, or
                educational purposes;
                [[Page 53587]]
                 (C) Disease or predation;
                 (D) The inadequacy of existing regulatory mechanisms; or
                 (E) Other natural or manmade factors affecting its continued
                existence.
                 These factors represent broad categories of natural or human-caused
                actions or conditions that could have an effect on a species' continued
                existence. In evaluating these actions and conditions, we look for
                those that may have a negative effect on individuals of the species, as
                well as other actions or conditions that may ameliorate any negative
                effects or may have positive effects.
                 We use the term ``threat'' to refer in general to actions or
                conditions that are known to or are reasonably likely to negatively
                affect individuals of a species. The term ``threat'' includes actions
                or conditions that have a direct impact on individuals (direct
                impacts), as well as those that affect individuals through alteration
                of their habitat or required resources (stressors). The term ``threat''
                may encompass--either together or separately--the source of the action
                or condition or the action or condition itself.
                 However, the mere identification of any threat(s) does not
                necessarily mean that the species meets the statutory definition of an
                ``endangered species'' or a ``threatened species.'' In determining
                whether a species meets either definition, we must evaluate all
                identified threats by considering the expected response by the species,
                and the effects of the threats--in light of those actions and
                conditions that will ameliorate the threats--on an individual,
                population, and species level. We evaluate each threat and its expected
                effects on the species, then analyze the cumulative effect of all of
                the threats on the species as a whole. We also consider the cumulative
                effect of the threats in light of those actions and conditions that
                will have positive effects on the species, such as any existing
                regulatory mechanisms or conservation efforts. The Secretary determines
                whether the species meets the definition of an ``endangered species''
                or a ``threatened species'' only after conducting this cumulative
                analysis and describing the expected effect on the species now and in
                the foreseeable future.
                 The Act does not define the term ``foreseeable future,'' which
                appears in the statutory definition of ``threatened species.'' Our
                implementing regulations at 50 CFR 424.11(d) set forth a framework for
                evaluating the foreseeable future on a case-by-case basis. The term
                ``foreseeable future'' extends only so far into the future as the
                Services can reasonably determine that both the future threats and the
                species' responses to those threats are likely. In other words, the
                foreseeable future is the period of time in which we can make reliable
                predictions. ``Reliable'' does not mean ``certain''; it means
                sufficient to provide a reasonable degree of confidence in the
                prediction. Thus, a prediction is reliable if it is reasonable to
                depend on it when making decisions.
                 It is not always possible or necessary to define foreseeable future
                as a particular number of years. Analysis of the foreseeable future
                uses the best scientific and commercial data available and should
                consider the timeframes applicable to the relevant threats and to the
                species' likely responses to those threats in view of its life-history
                characteristics. Data that are typically relevant to assessing the
                species' biological response include species-specific factors such as
                lifespan, reproductive rates or productivity, certain behaviors, and
                other demographic factors.
                Analytical Framework
                 The SSA report documents the results of our comprehensive
                biological review of the best scientific and commercial data regarding
                the status of the species, including an assessment of the potential
                threats to the species. The SSA report does not represent a decision by
                the Service on whether the species should be proposed for listing as an
                endangered or threatened species under the Act. It does, however,
                provide the scientific basis that informs our regulatory decisions,
                which involve the further application of standards within the Act and
                its implementing regulations and policies. The following is a summary
                of the key results and conclusions from the SSA report; the full SSA
                report can be found at Docket No. FWS-R2-ES-2020-0042 on https://www.regulations.gov and on the New Mexico Ecological Services Field
                Office website at https://www.fws.gov/southwest/es/NewMexico/.
                 To assess Pe[ntilde]asco least chipmunk viability, we used the
                three conservation biology principles of resiliency, redundancy, and
                representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
                resiliency supports the ability of the species to withstand
                environmental and demographic stochasticity (for example, wet or dry,
                warm or cold years), redundancy supports the ability of the species to
                withstand catastrophic events (for example, droughts, large pollution
                events), and representation supports the ability of the species to
                adapt over time to long-term changes in the environment (for example,
                climate changes). In general, the more resilient and redundant a
                species is and the more representation it has, the more likely it is to
                sustain populations over time, even under changing environmental
                conditions. Using these principles, we identified the species'
                ecological requirements for survival and reproduction at the
                individual, population, and species levels, and described the
                beneficial and risk factors influencing the species' viability.
                 The SSA process can be categorized into three sequential stages.
                During the first stage, we evaluated the individual species' life-
                history needs. The next stage involved an assessment of the historical
                and current condition of the species' demographics and habitat
                characteristics, including an explanation of how the species arrived at
                its current condition. The final stage of the SSA involved making
                predictions about the species' responses to positive and negative
                environmental and anthropogenic influences. Throughout all of these
                stages, we used the best available information to characterize
                viability as the ability of a species to sustain populations in the
                wild over time. We use this information to inform our regulatory
                decision.
                Summary of Biological Status and Threats
                 In this discussion, we review the biological condition of the
                species and its resources, and the threats that influence the species'
                current and future condition, in order to assess the species' overall
                viability and the risks to that viability.
                Summary of Analysis
                 To evaluate the current and future viability of the Pe[ntilde]asco
                least chipmunk, we assessed a range of conditions to allow us to
                consider the species' resiliency, representation, and redundancy. To
                maintain long-term viability, Pe[ntilde]asco least chipmunk requires
                multiple (redundancy) self-sustaining populations (resiliency)
                distributed across the landscape (representation). Maintaining
                representation in the form of genetic or ecological diversity is
                important to maintain the Pe[ntilde]asco least chipmunk's capacity to
                adapt to future environmental changes.
                Current Condition of Pe[ntilde]asco Least Chipmunk
                 To analyze population-level resiliency, we identified and described
                the demographic and habitat conditions needed for resilient populations
                of Pe[ntilde]asco least chipmunk (Table 1). The demographic factors we
                analyzed include trap rate, population trends,
                [[Page 53588]]
                connectivity between populations, and number of subpopulations within
                populations. The habitat factors we analyzed include suitable habitat
                size to support population viability, habitat availability trends, and
                habitat. For each of these demographic and habitat factors, we
                characterized the condition (High, Moderate, Low, and Very Low/
                Extirpated) of each factor for each population (Table 1) to assess
                overall population resiliency. Where more data were available, we
                assigned scores (High = 1, Moderate = 0, Low = -1, and Very Low/
                Extirpated = -2) to each demographic and habitat factor and calculated
                an overall score for each population. We averaged all of the
                demographic and habitat condition category scores for each population
                to determine the overall resiliency score for that population (Service
                2018, p. 64).
                 Table 1--Population Resiliency Category Definitions for Pe[ntilde]asco Least Chipmunk
                ----------------------------------------------------------------------------------------------------------------
                 Very low/extirpated (-
                 High (1) Moderate (0) Low (-1) 2)
                ----------------------------------------------------------------------------------------------------------------
                 density or relative density or density or abundance
                 abundance is high. relative abundance is relative abundance is decreases over time,
                 population is increasing moderate. low. such that population
                 over time. population is population is may be extirpated
                 there is connectivity stable over time. decreasing over time completely.
                 between the populations. populations but still extant. no
                 the number of subpopulations are adjacent to each populations connectivity with
                 is high, spatially dispersed, and other, but unsuitable are extremely isolated other populations
                 able to withstand or recover from habitat precludes from one another. exists.
                 stochastic events. dispersal. two if extant, no
                 large, contiguous areas of multiple subpopulations allow subpopulation
                 increasing availability of suitable subpopulations, for some, but limited, structure occurs.
                 habitat with no detectable impacts allowing for some ability to withstand little to no
                 from land use or management. ability to withstand or recover from suitable habitat is
                 or recover from stochastic events. available.
                 stochastic events. habitat occurs if patches
                 areas of as small isolated exist, they are small
                 moderately sized patches. and isolated and will
                 habitat with some land use or lead or have led to
                 isolated habitat management reduces high probability of
                 patches. chipmunk resources. extirpation.
                 land use or land use or
                 management occurs but management removes
                 does not significantly chipmunk resources.
                 limit chipmunk
                 resources.
                ----------------------------------------------------------------------------------------------------------------
                 The current condition of each demographic and habitat factor and
                the overall condition of each population of the Pe[ntilde]asco least
                chipmunk is displayed in Table 2. Historically, there were two known
                populations of Pe[ntilde]asco least chipmunk, the Sacramento Mountains
                population and the White Mountains population. Based on the demographic
                and habitat factors discussed in detail in the SSA (Service 2018, pp.
                60-62), the Sacramento Mountains population is considered to be in Very
                Low/Extirpated overall condition. There have been no detections of
                Pe[ntilde]asco least chipmunk in the Sacramento Mountains since 1966,
                despite extensive survey effort, indicating that this population is
                likely extirpated. Even if it is still extant, it has no connectivity
                with other populations and likely no subpopulation structure (Service
                2018, p. 11). The Sacramento Mountains have little to no remaining
                suitable habitat, and land use and management have severely decreased
                the condition of the resources upon which Pe[ntilde]asco least chipmunk
                depends.
                 For the White Mountains population, current habitat availability is
                moderate. Habitat has experienced a moderate change from historical
                conditions, and land use or management is not known to significantly
                reduce Pe[ntilde]asco least chipmunk resources. However, in terms of
                demographic factors, the White Mountains population has a low density
                and decreasing population trend. The population is the only remaining
                population of the subspecies, and the White Mountains population has no
                known subpopulation structure. Given these Low and Very Low condition
                demographic factors, the White Mountains population is in Low overall
                condition. The current resiliency of Pe[ntilde]asco least chipmunk is
                low to very low, with one population likely extirpated and the
                remaining population isolated with no subpopulation structure.
                 Maintaining representation in the form of genetic or ecological
                diversity is important to preserve the capacity of the Pe[ntilde]asco
                least chipmunk to adapt to future environmental changes. Because one of
                the two populations of Pe[ntilde]asco least chipmunk is likely
                extirpated, and the extant population persists in extremely low
                numbers, genetic diversity is likely extremely low. Pe[ntilde]asco
                least chipmunks in the White Mountains showed the lowest levels of
                within-population genetic variation out of nine least chipmunk
                populations in New Mexico, Arizona, and Colorado (Sullivan 1985, pp.
                431-433). In addition, the subspecies has a historical distribution in
                two very different ecological settings: One in a high-elevation
                subalpine meadow zone in the White Mountains, and one in a lower
                elevation ponderosa pine zone in the Sacramento Mountains. Because the
                Sacramento Mountains may no longer support the subspecies, the
                Pe[ntilde]asco least chipmunk has already lost ecological
                representation across its range. Low genetic variation and the loss of
                one ecological setting results in low representation for the
                Pe[ntilde]asco least chipmunk (Service 2018, p. 65).
                 To be robust in the face of stochastic events, the Pe[ntilde]asco
                least chipmunk needs to have at least two resilient populations
                (Service 2018, p. 64). Historically there were only two known
                populations, one each in the White and Sacramento Mountains. Generally,
                the more populations a species has, and the wider the distribution of
                those populations, the more redundancy the species will exhibit.
                Redundancy reduces the risk that a large portion of the species' range
                will be negatively affected by a catastrophic natural or anthropogenic
                event (e.g., wildfire) at a given point in time. Species (or
                subspecies) that are well-distributed across a wide geographic range
                are less susceptible to extinction and more likely to be viable than
                taxa that are confined to small areas where stochastic events are
                likely to affect all of the individuals simultaneously (Carroll et al.
                2010, entire). Because one of the two populations of Pe[ntilde]asco
                least chipmunk is likely extirpated, the Pe[ntilde]asco least chipmunk
                currently lacks any redundancy (Service 2018, p. 65).
                [[Page 53589]]
                 Table 2--Current Resiliency of the Pe[ntilde]asco Least Chipmunk Populations
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Demographic factors Habitat factors
                 --------------------------------------------------------------------------------------------------------------------------------------------
                 Trap rate (number Available suitable
                 Population individuals/ trap Population Subpopulations habitat to support Habitat Habitat condition Condition category
                 hour) surrogate Population trends connectivity within populations population availability with land use or
                 for density persistence trends management
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                White Mountains................. Low............... Low............... Very Low.......... Very Low.......... Moderate.......... Moderate.......... Moderate.......... Low.
                 -1.5.............. -1................ -2................ -2................ 0................. 0................. 0................. -1.
                Sacramento Mountains............ Very Low.......... Very Low.......... Very Low.......... Very Low.......... Very Low.......... Very Low.......... Very Low.......... Very Low.
                 -2................ -2................ -2................ -2................ -2................ -2................ -2................ -2.
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 See the SSA report for the complete current condition analysis for
                the Pe[ntilde]asco least chipmunk (Service 2018, pp. 54-65).
                Risk Factors for Pe[ntilde]asco Least Chipmunk
                 We evaluated the past, current, and future stressors that affect
                the Pe[ntilde]asco least chipmunk's needs for long-term viability.
                Additionally, we evaluated several potential stressor sources that are
                not described here because the stressor source is predicted to have low
                impact on Pe[ntilde]asco least chipmunk viability. More information on
                these stressors, including interspecific competition, scientific
                collection, and climate change can be found in the SSA (Service 2018,
                pp. 50-52).
                 Stressors affecting the viability of the Pe[ntilde]asco least
                chipmunk include vegetation shifts, wildfire, forest encroachment,
                recreation, development, and land use (Factor A, disease (Factor C),
                nonnative species (Factors A and C), and small population size and lack
                of connectivity (Factor E). Considerations under Factor D are described
                below.
                 Pe[ntilde]asco least chipmunk habitat is afforded some protection
                under the Wilderness Act of 1964 (16 U.S.C. 1131-1136). Within the
                White Mountains, approximately 54 percent of the current range of the
                Pe[ntilde]asco least chipmunk is within the Lincoln National Forest
                White Mountain Wilderness Area. This designation limits management
                options and conservation efforts in designated wilderness areas to some
                degree. The Wilderness Act states that wilderness should be managed to
                preserve its natural conditions and yet remain untrammeled by man, and
                defines wilderness ``. . . as an area of undeveloped Federal land
                retaining its primeval character and influence, without permanent
                improvements or human habituation . . .'' (16 U.S.C. 1131-1136). Within
                designated wilderness areas, no commercial activities are permitted, no
                permanent or temporary roads, no motorized equipment or any form of
                mechanical transport, and no structures are permitted within the area
                (16 U.S.C. 1131-1136). Habitat for the Pe[ntilde]asco least chipmunk
                appears to be relatively unaltered in the White Mountains Wilderness
                Area, except for the encroachment of trees into meadows (Service 2018,
                p. 35).
                 Additionally, the range of the Pe[ntilde]asco least chipmunk
                overlaps with designated Mexican spotted owl critical habitat; the
                management of that habitat for the Mexican spotted owl does allow for
                some level of grazing. This may result in changes to the plant
                community that do not adversely affect the prey base of the Mexican
                spotted owl but is detrimental to the specific plant community needs of
                the Pe[ntilde]asco least chipmunk (Service 2018, pp. 38-40).
                Vegetation Shifts, Wildfire, and Forest Encroachment
                 Over the last ~150 years, land management practices have shifted
                the vegetative components of Pe[ntilde]asco least chipmunk habitat in
                the Sacramento Mountains, resulting in an overall lack of suitable
                habitat for the subspecies. The historically open, park-like stands of
                ponderosa pine forest that comprised Pe[ntilde]asco least chipmunk
                habitat have been replaced with high-density, small-diameter ponderosa
                pine, with encroaching Douglas fir (Pseudotsuga menziesii) and white
                fir (Abies concolor), and a lack of native grass meadow habitat
                (Service 2018, pp. 39-41).
                 These changes in vegetation composition (inclusion of less fire-
                tolerant species of trees such as Douglas fir and white fir) and
                structure (from low-density, large-diameter trees with few low branches
                to high-density, small-diameter trees with many low branches), coupled
                with the loss and conversion of native to nonnative grass meadows,
                alter the suitability of the habitat for the Pe[ntilde]asco least
                chipmunk in the Sacramento Mountains. Effective fire exclusion and
                suppression actions have also contributed to the changes in forest
                composition and structure and have resulted in the additional stressor
                source of altered fire regimes.
                 Forest encroachment into grasslands is occurring in both the
                Sacramento Mountains and in the White Mountains, although the causes
                for each are likely different. The causes for tree encroachment into
                meadows in the Sacramento Mountains is likely related to land use and
                land management practices, while the White Mountains are influenced by
                climatic events and successional encroachment processes. While some
                landscape restoration projects are planned (i.e., the South Sacramento
                Forest Restoration Project) that may address some areas of meadow
                encroachment, no additional projects are planned within the historical
                range of the Pe[ntilde]asco least chipmunk either in the Sacramento
                Mountains or the White Mountains to control or limit tree encroachment
                into meadow habitat.
                Recreation, Development, Land Use, and Land Management
                 Agricultural land use in the Sacramento Mountains appears to have
                shifted from cultivation in the early part of the 20th century to
                pasture use. This conversion likely affected a potentially significant
                food resource (i.e., crops) for Pe[ntilde]asco least chipmunks in the
                Sacramento Mountains, specifically James Canyon (Service 2018, p. 42).
                It is likely that the high-quality, abundant food resource of wheat and
                oat fields drew Pe[ntilde]asco least chipmunks to the fields and roads
                where the animals were easily observable, as early records noted that
                Pe[ntilde]asco least chipmunks were especially abundant along rail
                fences, eating oats and wheat at field edges (Bailey 1931, p. 91).
                However, Pe[ntilde]asco least chipmunks were also abundant in the open,
                mature ponderosa pine forests (Bailey 1931, p. 91). Pe[ntilde]asco
                least chipmunks were noted as abundant throughout the Sacramento
                Mountains during the early 1900s, in both natural open habitat and near
                agricultural fields (Service 2018, p. 43). The change in land use from
                crop fields to pasture for livestock likely impacted Pe[ntilde]asco
                least chipmunks by decreasing the
                [[Page 53590]]
                availability of an abundant, high-quality food source. Grasslands in
                the bottom of canyons that are currently used for pasture or livestock
                are likely not usable by the Pe[ntilde]asco least chipmunk because the
                grasses are likely not tall enough to provide shelter and cover
                (Service 2018, p. 43).
                 U.S. Forest Service lands are managed for multiple uses. In the
                Sacramento Mountains, these uses currently include recreation,
                livestock grazing, and special use permits for a variety of actions.
                Recreational use includes camping, hiking, biking, and motorized
                vehicle use, among other activities. The historical role of livestock
                grazing and timber harvest are described in the SSA report (Service
                2018, pp. 30-38) in terms of altering forest composition, structure,
                and fire regimes. However, grazing within the White Mountains
                Wilderness Allotment has been closed for 20 years and will remain
                closed (Williams, pers. comm. 2020).
                 The most significant recreational, development, and land use
                activities likely to affect the Pe[ntilde]asco least chipmunk in the
                White Mountains are related to the opening, operating, and maintaining
                of the Ski Apache Resort on Lookout Mountain (Service 2018, p. 44).
                Access roads to Ski Apache and the adjacent Buck Mountain were
                constructed in 1960 (Dyer and Moffett 1999, p. 451). The Resort opened
                in 1961 and has since been owned and operated by the Mescalero Apache
                Tribe (Ski Apache Resort 2018, entire). Ski Apache hosts both winter
                and summer recreation and occurs mostly on Forest Service land,
                operating under a Special Use permit issued by the Forest Service. Some
                of the activities also occur on Mescalero Apache Tribal lands. We
                address impacts and use of the area regardless of ownership. Summer use
                of Ski Apache Resort includes gondola rides, mountain biking, hiking,
                and zip-lining (Service 2018, p. 44).
                 In 2016, three Pe[ntilde]asco least chipmunks were observed on two
                survey trap lines on Lookout Mountain within Ski Apache Resort (Service
                2018, p. 45). Lookout Mountain was selected to survey for several
                reasons, the main one being that it is located in the same large patch
                of subalpine meadow/tundra as that of Sierra Blanca Peak (Frey and Hays
                2017, p. 9), where many historical records show that Pe[ntilde]asco
                least chipmunk were located. Two of the three Pe[ntilde]asco least
                chipmunk observations in 2016 were located just off the access road
                that leads to, and is in close proximity to, the Ski Apache zip line
                infrastructure. Vehicle use on the access road and human use for the
                zip line have the potential to be a stressor to the Pe[ntilde]asco
                least chipmunk due to vehicle strikes and disturbance from human
                presence.
                Disease
                 A variety of pathogens and diseases have the potential to affect or
                have affected the Pe[ntilde]asco least chipmunk. Of these, sylvatic
                plague has the greatest likelihood of being a stressor to the
                subspecies (Service 2018, p. 46). The plague is caused by the bacteria
                Yersinia pestis, a highly virulent organism that can quickly cause
                lethal disease in susceptible mammals (Abbott and Rocke 2012, p. 7).
                Transmission of Y. pestis typically occurs through fleas, whereby fleas
                feed on infected hosts and move to new hosts. The plague is most
                commonly transmitted through fleas, but can also be transferred through
                inhalation, eating of infected animals, or through bites, scratches, or
                direct contact with infected animals, tissues, or fluids (Abbott and
                Rocke 2012, p. 18). Modes of transmission of Y. pestis in wildlife are
                likely similar, whereby flea transmission is most common, but other
                avenues may also occur.
                 Rodents are the major group of animals infected by Y. pestis, and
                some species may act as a reservoir or as an ``amplifying host'' for
                the organism (Abbott and Rocke 2012, p. 18). Generally, an amplifying
                host is a host in which disease agents, such as viruses or bacteria,
                increase in number (Abbott and Rocke 2012, p. 71); in this case,
                ``amplifying hosts'' also applies to hosts that are more uniformly
                susceptible to plague and undergo dramatic die-offs during outbreaks of
                plague (Abbott and Rocke 2012, p. 17). It is unknown if the plague has
                affected the Pe[ntilde]asco least chipmunk in the past, is currently
                affecting the subspecies now, or will in the future. However, there is
                supporting evidence that suggests that the plague has been and could be
                a significant stressor to the viability of Pe[ntilde]asco least
                chipmunk (Service 2018, p. 46).
                 The Y. pestis organism likely arrived in New Mexico at a time that
                is approximately coincident with observed declines of Pe[ntilde]asco
                least chipmunk populations (that is, beginning in the early 1950s
                through the 1960s). Chipmunks, in general, and least chipmunks more
                specifically, have been tested in the laboratory and are susceptible to
                the plague (Quan and Karman 1962, p. 128). Some epizootics caused by
                the plague have been observed in chipmunks and other ground squirrels
                (Smith et al. 2010, entire).
                Nonnative Species
                 Feral hogs have become established as a nuisance species in New
                Mexico and elsewhere in the United States (USDA Wildlife Services 2010,
                entire). In New Mexico, feral hogs occur within Lincoln and Otero
                Counties. One of the last remaining locations in New Mexico with
                significant feral hog numbers is the Lincoln National Forest, including
                the 47,000-acre USFS White Mountain Wilderness Area (USDA 2019, pp.
                112-114). This area includes the majority of the known locations of
                recent Pe[ntilde]asco least chipmunk occurrences (Service 2018, pp. 47-
                48). Feral hogs are voracious, flexible, and opportunistic omnivores
                (USDA Wildlife Services 2010, p. 6) and will persistently root in an
                area until the resources are depleted (USDA Wildlife Services 2010, p.
                7).
                 Rooting can be extremely destructive to habitat. Feral hogs cause
                long-term degradation of native ecosystems and plant communities and
                spread of invasive weeds through their rooting behavior (USDA Wildlife
                Services 2010, pp. 10-12, 19-20). In addition to influencing habitat,
                feral hogs consume a multitude of vertebrate and invertebrate species
                (USDA Wildlife Services 2010, p. 13). In 2010, USDA Wildlife Services
                (2010, p. 14) reported that 90% of the small mammal species listed
                under the Act were in areas of expanding feral hog populations and
                documented how feral hogs could influence small mammal populations
                through heavy and persistent predatory activities. In addition to
                direct predation, feral hogs can strip an area of food resources and
                are competitors with native species for food and water resources (USDA
                Wildlife Services 2010 pp. 12-13). An active feral hog population
                control program in the White and Sacramento Mountains of New Mexico by
                the U.S. Department of Agriculture ended in 2018. It is anticipated
                that feral hog population in the White Mountains, including within the
                proposed Pe[ntilde]asco least chipmunk critical habitat, will
                exponentially increase as a result.
                 Additionally, feral hogs are susceptible to at least 30 viral and
                bacteriological diseases, 20 of which can be transmitted from non-human
                animals to humans, and at least 37 parasites have been identified (USDA
                Wildlife Services 2010, p. 15). Among the many diseases, pathogens, and
                parasites that feral hogs carry, in New Mexico feral hogs have tested
                positive for swine brucellosis and pseudorabies. While the ability of
                feral hogs to transfer disease to wildlife is not well-studied,
                pseudorabies virus is highly contagious,
                [[Page 53591]]
                and rodents are reported as being susceptible (USDA Wildlife Services
                2010, p. 15). The prevalence of antibodies of Y. pestis was reported
                for 17 species of mammals from the western United States (Abbott and
                Rocke 2012, p. 26); of those, feral hogs had the highest prevalence
                rate at 74%. Although the sample size for this assessment was
                relatively low (18 out of 23 were positive), these data demonstrate
                that feral hogs in both the Sacramento Mountains and White Mountains
                could contribute to disease dynamics in the small mammal communities in
                these mountain ranges (Abbott and Rocke 2012, p. 26).
                 Impacts from feral hogs may include rooting, predation, spreading
                diseases and parasites, spreading invasive weed species, and
                competition with native species for water and food resources (Service
                2018, p. 48). We lack specific data demonstrating overlap of feral hog
                occurrence with Pe[ntilde]asco least chipmunk occurrence; however,
                feral hogs are known to occur in the vicinity of Pe[ntilde]asco least
                chipmunk habitat or areas formerly known to be occupied by the
                Pe[ntilde]asco least chipmunk (Service 2018, p. 48).
                Small Population Size and Lack of Connectivity
                 Compared to large populations, small populations are more
                vulnerable to extirpation from environmental, demographic, and genetic
                stochasticity (random natural occurrences), and unforeseen natural or
                unnatural catastrophes (Shaffer 1981, p. 131). Small populations are
                less able to recover from losses caused by random environmental changes
                (Shaffer and Stein 2000, pp. 308-310), such as fluctuations in
                reproduction (demographic stochasticity), sweeping losses from disease
                events, or changes in the frequency or severity of wildfires
                (environmental stochasticity).
                 Another type of random fluctuation, genetic stochasticity, results
                from: (1) Changes in gene frequencies due to the founder effect, which
                is the loss of genetic variation that occurs when a new population is
                established by a small number of individuals (Hedrick 2000, p. 226);
                (2) random fixation, or the complete loss of all but one allele at a
                locus (Hedrick 2000, p. 258); or (3) inbreeding depression, which is
                the loss of fitness or vigor due to mating among relatives (Hedrick
                2000, p. 208). Additionally, small populations generally have an
                increased chance of genetic drift, or random changes in gene
                frequencies from generation to generation that can lead to a loss of
                variation, and inbreeding (Ellstrand and Elam 1993, p. 225). Allee
                effects, when there is a positive relationship between any component of
                individual fitness and either numbers or density of conspecifics
                (Stephens et al. 1999, p. 186), may also occur when a population is in
                decline (Dennis 1989, pp. 481- 538). In a declining population, an
                extinction threshold or ``Allee threshold'' (Berec et al. 2007, pp.
                185-191) may be crossed, in which adults in the population either cease
                to breed or the population becomes so compromised that breeding does
                not contribute to population growth. Allee effects typically fall into
                three broad categories (Courchamp et al. 1999, pp. 405-410): Lack of
                facilitation (including low mate detection and loss of breeding cues),
                demographic stochasticity, and loss of heterozygosity. Environmental
                stochasticity amplifies Allee effects (Dennis 1989, pp. 481-538; Dennis
                2002, pp. 389-401). In Pe[ntilde]asco least chipmunks, random fixation
                and loss of heterozygosity have been observed (Sullivan 1985, pp. 431-
                433). The extinction risk for a subspecies represented by few small
                populations is magnified when those populations are isolated from one
                another, as is the case for the White Mountains and the Sacramento
                Mountains (Service 2018, p. 50).
                 It is suspected that the White Mountains and Sacramento Mountains
                populations may have been physically separated over a long time period
                with little to no genetic interchange, based on morphometric
                differences in collected specimens (Sullivan 1985, pp. 424-425).
                However, connectivity could play an important role as it relates to the
                overall viability to the subspecies if it is found to be present in the
                Sacramento Mountains in the future. Connectivity between White Mountain
                and Sacramento populations would contribute to the number of
                reproductively active individuals in a population; mitigate the
                genetic, demographic, and environmental effects of small population
                size; and recolonize extirpated areas (Service 2018, pp. 48-49).
                Additionally, the fewer the populations a species or subspecies has,
                the greater the risk of extinction. The combination of a very small
                population in the White Mountains, a likely extirpated population in
                the Sacramento Mountains, and no population connectivity between the
                mountain ranges, synergistically interacting with the other stressors
                and potential stressors described above, greatly increases extinction
                risk for the Pe[ntilde]asco least chipmunk (Service 2018, p. 50).
                Because of this combination, the stressor of small population size is
                included in our analysis of future subspecies viability.
                Conservation Actions
                 The White Mountains Wilderness Area within the Lincoln National
                Forest is currently closed to grazing and will remain closed for the
                recovery and protection of the Pe[ntilde]asco least chipmunk (Williams
                pers. comm. 2020). As part of the SSA, we also developed multiple
                future scenarios to capture the range of uncertainties regarding future
                threats and the projected responses by the Pe[ntilde]asco least
                chipmunk. Our scenarios included a continuing conditions scenario,
                which incorporated the current risk factors continuing on the same
                trajectory that they are on now. We also evaluated an optimistic
                scenario and a scenario with increased stressors. Because we determined
                that the current condition of the Pe[ntilde]asco least chipmunk was
                consistent with an endangered species (see Determination of Species
                Status, below), we are not presenting the results of the future
                scenarios in this proposed rule. Please refer to the SSA report
                (Service 2018) for the full analysis of future scenarios.
                Determination of Species Status
                 Section 4 of the Act (16 U.S.C. 1533) and its implementing
                regulations (50 CFR part 424) set forth the procedures for determining
                whether a species meets the definition of an endangered species or a
                threatened species. The Act defines an ``endangered species'' as a
                species that is ``in danger of extinction throughout all or a
                significant portion of its range,'' and a ``threatened species'' as a
                species that is ``likely to become an endangered species within the
                foreseeable future throughout all or a significant portion of its
                range.'' The Act requires that we determine whether a species meets the
                definition of ``endangered species'' or ``threatened species'' because
                of any of the following factors: (A) The present or threatened
                destruction, modification, or curtailment of its habitat or range; (B)
                overutilization for commercial, recreational, scientific, or
                educational purposes; (C) disease or predation; (D) the inadequacy of
                existing regulatory mechanisms; or (E) other natural or manmade factors
                affecting its continued existence.
                Status Throughout All of Its Range
                 The range of the Pe[ntilde]asco least chipmunk once included the
                Sacramento and White Mountains in Lincoln and Otero Counties in New
                Mexico. The Pe[ntilde]asco least chipmunk is now found in only one
                isolated
                [[Page 53592]]
                population within the White Mountains. The one remaining population has
                low resiliency, meaning that the population has a low probability of
                remaining extant and withstanding periodic or stochastic disturbances
                under its current condition. Representation is low, with the loss of
                one of two populations within its historical range. Species-level
                genetic and ecological diversity is likely extremely low, as one
                population is likely extirpated and the remaining population is small.
                Redundancy has declined dramatically because the Pe[ntilde]asco least
                chipmunk remains on the landscape in only one population. As such, the
                Pe[ntilde]asco least chipmunk is at greater risk of extinction due to a
                catastrophic event when compared to historical conditions.
                 The Pe[ntilde]asco least chipmunk faces threats that put it at risk
                of extinction, including vegetation shifts, wildfire, forest
                encroachment, recreation, development, land use, and land management
                (Factor A, nonnative species (Factors A and C), disease (Factor C), and
                small population size and lack of connectivity (Factor E). We found
                small population size to be the main threat to the species currently.
                The current population is small and isolated, making it vulnerable to
                catastrophic or stochastic events. The risk of species extinction from
                a disease outbreak, large wildfire, or extreme drought is high. The one
                remaining population is currently small and isolated, and we expect it
                to remain so in the future. Neither ongoing management activities, nor
                existing regulatory mechanisms (Factor D), are sufficient to mitigate
                the threats facing the Pe[ntilde]asco least chipmunk.
                 Based on the assessment of the species' resiliency, representation,
                and redundancy, which are at levels that put the species at risk of
                extinction throughout its range, we find the Pe[ntilde]asco least
                chipmunk meets the definition of an endangered species. We find that a
                threatened species status is not appropriate for the Pe[ntilde]asco
                least chipmunk because it is currently at risk of extinction.
                Status Throughout a Significant Portion of Its Range
                 Under the Act and our implementing regulations, a species may
                warrant listing if it is in danger of extinction or likely to become so
                in the foreseeable future throughout all or a significant portion of
                its range. We have determined that the Pe[ntilde]asco least chipmunk is
                in danger of extinction throughout all of its range and accordingly did
                not undertake an analysis of any significant portion of its range.
                Because the Pe[ntilde]asco least chipmunk warrants listing as
                endangered throughout all of its range, our determination is consistent
                with the decision in Center for Biological Diversity v. Everson, 2020
                WL 437289 (D.D.C. Jan. 28, 2020), in which the court vacated the aspect
                of the Final Policy on Interpretation of the Phrase ``Significant
                Portion of Its Range'' in the Endangered Species Act's Definitions of
                ``Endangered Species'' and ``Threatened Species'' (79 FR 37578; July 1,
                2014) that provided the Services do not undertake an analysis of
                significant portions of a species' range if the species warrants
                listing as threatened throughout all of its range.
                Determination of Status
                 Our review of the best available scientific and commercial
                information indicates that the Pe[ntilde]asco least chipmunk meets the
                definition of an endangered species. Therefore, we propose to list the
                Pe[ntilde]asco least chipmunk as an endangered species in accordance
                with sections 3(6) and 4(a)(1) of the Act.
                Available Conservation Measures
                 Conservation measures provided to species listed as endangered or
                threatened species under the Act include recognition, recovery actions,
                requirements for Federal protection, and prohibitions against certain
                practices. Recognition through listing results in public awareness and
                conservation by Federal, State, Tribal, and local agencies, as well as
                private organizations and individuals. The Act encourages cooperation
                with the States and other countries and calls for recovery actions to
                be carried out for listed species. The protection required by Federal
                agencies and the prohibitions against certain activities are discussed,
                in part, below.
                 The primary purpose of the Act is the conservation of endangered
                and threatened species and the ecosystems upon which they depend. The
                ultimate goal of such conservation efforts is the recovery of these
                listed species, so that they no longer need the protective measures of
                the Act. Subsection 4(f) of the Act calls for the Service to develop
                and implement recovery plans for the conservation of endangered and
                threatened species. The recovery planning process involves the
                identification of actions that are necessary to halt or reverse the
                species' decline by addressing the threats to its survival and
                recovery. The goal of this process is to restore listed species to a
                point where they are secure, self-sustaining, and functioning
                components of their ecosystems.
                 Recovery planning consists of preparing draft and final recovery
                plans, beginning with the development of a recovery outline and making
                it available to the public within 30 days of a final listing
                determination. The recovery outline guides the immediate implementation
                of urgent recovery actions and describes the process to be used to
                develop a recovery plan. Revisions of the plan may be done to address
                continuing or new threats to the species, as new substantive
                information becomes available. The recovery plan also identifies
                recovery criteria for review of when a species may be ready for
                reclassification from endangered to threatened (``downlisting'') or
                removal from protected status (``delisting''), and methods for
                monitoring recovery progress. Recovery plans also establish a framework
                for agencies to coordinate their recovery efforts and provide estimates
                of the cost of implementing recovery tasks. Recovery teams (composed of
                species experts, Federal and State agencies, nongovernmental
                organizations, and stakeholders) are often established to develop
                recovery plans. When completed, the recovery outlines, draft recovery
                plans, and the final recovery plans will be available on our website
                (https://www.fws.gov/endangered), or from our New Mexico Ecological
                Services Field Office (see FOR FURTHER INFORMATION CONTACT).
                 Implementation of recovery actions generally requires the
                participation of a broad range of partners, including other Federal
                agencies, States, Tribes, nongovernmental organizations, businesses,
                and private landowners. Examples of recovery actions include habitat
                restoration (e.g., restoration of native vegetation), research, captive
                propagation and reintroduction, and outreach and education. The
                recovery of many listed species cannot be accomplished solely on
                Federal lands because their range may occur primarily or solely on non-
                Federal lands. To achieve recovery of these species requires
                cooperative conservation efforts on private, State, and Tribal lands.
                 If this species is listed, funding for recovery actions may be
                available from a variety of sources, including Federal budgets, State
                programs, and cost share grants for non-Federal landowners, the
                academic community, and nongovernmental organizations. In addition,
                pursuant to section 6 of the Act, the State of New Mexico may be
                eligible for Federal funds to implement management actions that promote
                the protection or recovery of the Pe[ntilde]asco least chipmunk.
                Information on our
                [[Page 53593]]
                grant programs that are available to aid species recovery can be found
                at https://www.fws.gov/grants.
                 Although the Pe[ntilde]asco least chipmunk is only proposed for
                listing under the Act at this time, please let us know if you are
                interested in participating in recovery efforts for the species.
                Additionally, we invite you to submit any new information on this
                species whenever it becomes available and any information you may have
                for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).
                 Section 7(a) of the Act requires Federal agencies to evaluate their
                actions with respect to any species that is proposed or listed as an
                endangered or threatened species and with respect to its critical
                habitat, if any is designated. Regulations implementing this
                interagency cooperation provision of the Act are codified at 50 CFR
                part 402. Section 7(a)(4) of the Act requires Federal agencies to
                confer with the Service on any action that is likely to jeopardize the
                continued existence of a species proposed for listing or result in
                destruction or adverse modification of proposed critical habitat. If a
                species is listed subsequently, section 7(a)(2) of the Act requires
                Federal agencies to ensure that activities they authorize, fund, or
                carry out are not likely to jeopardize the continued existence of the
                species or destroy or adversely modify its critical habitat. If a
                Federal action may affect a listed species or its critical habitat, the
                responsible Federal agency must enter into consultation with the
                Service.
                 Federal agency actions within the species' habitat that may require
                conference or consultation or both as described in the preceding
                paragraph may include, but are not limited to, management and any other
                landscape-altering activities on Federal lands including those
                administered by the U.S. Forest Service, issuance of section 404 Clean
                Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of
                Engineers, and construction and maintenance of roads or highways by the
                Federal Highway Administration.
                 The Act and its implementing regulations set forth a series of
                general prohibitions and exceptions that apply to endangered wildlife.
                The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
                17.21, make it illegal for any person subject to the jurisdiction of
                the United States to take (which includes harass, harm, pursue, hunt,
                shoot, wound, kill, trap, capture, or collect; or to attempt any of
                these) endangered wildlife within the United States or on the high
                seas. In addition, it is unlawful to import; export; deliver, receive,
                carry, transport, or ship in interstate or foreign commerce in the
                course of commercial activity; or sell or offer for sale in interstate
                or foreign commerce any species listed as an endangered species. It is
                also illegal to possess, sell, deliver, carry, transport, or ship any
                such wildlife that has been taken illegally. Certain exceptions apply
                to employees of the Service, the National Marine Fisheries Service,
                other Federal land management agencies, and State conservation
                agencies.
                 We may issue permits to carry out otherwise prohibited activities
                involving endangered wildlife under certain circumstances. Regulations
                governing permits are codified at 50 CFR 17.22. With regard to
                endangered wildlife, a permit may be issued for the following purposes:
                For scientific purposes, to enhance the propagation or survival of the
                species, and for incidental take in connection with otherwise lawful
                activities. There are also certain statutory exemptions from the
                prohibitions, which are found in sections 9 and 10 of the Act.
                 It is our policy, as published in the Federal Register on July 1,
                1994 (59 FR 34272), to identify to the maximum extent practicable at
                the time a species is listed, those activities that would or would not
                constitute a violation of section 9 of the Act. The intent of this
                policy is to increase public awareness of the effect of a proposed
                listing on proposed and ongoing activities within the range of the
                species proposed for listing. Based on the best available information,
                the following actions are unlikely to result in a violation of section
                9, if these activities are carried out in accordance with existing
                regulations and permit requirements; this list is not comprehensive:
                 (1) Winter activities at the ski resort;
                 (2) Hiking on established trails; and
                 (3) Routine road maintenance.
                 Based on the best available information, the following activities
                may potentially result in a violation of section 9 of the Act if they
                are not authorized in accordance with applicable law; this list is not
                comprehensive:
                 Activities that the Service believes could potentially harm the
                Pe[ntilde]asco least chipmunk and result in ``take'' include, but are
                not limited to:
                 (1) Unauthorized handling or collection of the species;
                 (2) Creation and modification of trails;
                 (3) Ski resort maintenance during summer months; and
                 (4) Organized mountain bike races.
                 Questions regarding whether specific activities would constitute a
                violation of section 9 of the Act should be directed to the New Mexico
                Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
                II. Proposed Critical Habitat Designation
                Background
                 Critical habitat is defined in section 3 of the Act as:
                 (1) The specific areas within the geographical area occupied by the
                species, at the time it is listed in accordance with the Act, on which
                are found those physical or biological features
                 (a) Essential to the conservation of the species, and
                 (b) Which may require special management considerations or
                protection; and
                 (2) Specific areas outside the geographical area occupied by the
                species at the time it is listed, upon a determination that such areas
                are essential for the conservation of the species.
                 Our regulations at 50 CFR 424.02 define the geographical area
                occupied by the species as an area that may generally be delineated
                around species' occurrences, as determined by the Secretary (i.e.,
                range). Such areas may include those areas used throughout all or part
                of the species' life cycle, even if not used on a regular basis (e.g.,
                migratory corridors, seasonal habitats, and habitats used periodically,
                but not solely by vagrant individuals). Additionally, our regulations
                at 50 CFR 424.02 define the word ``habitat'' as follows: ``for the
                purposes of designating critical habitat only, habitat is the abiotic
                and biotic setting that currently or periodically contains the
                resources and conditions necessary to support one or more life
                processes of a species.''
                 Conservation, as defined under section 3 of the Act, means to use
                and the use of all methods and procedures that are necessary to bring
                an endangered or threatened species to the point at which the measures
                provided pursuant to the Act are no longer necessary. Such methods and
                procedures include, but are not limited to, all activities associated
                with scientific resources management such as research, census, law
                enforcement, habitat acquisition and maintenance, propagation, live
                trapping, and transplantation, and, in the extraordinary case where
                population pressures within a given ecosystem cannot be otherwise
                relieved, may include regulated taking.
                 Critical habitat receives protection under section 7 of the Act
                through the requirement that Federal agencies
                [[Page 53594]]
                ensure, in consultation with the Service, that any action they
                authorize, fund, or carry out is not likely to result in the
                destruction or adverse modification of critical habitat. The
                designation of critical habitat does not affect land ownership or
                establish a refuge, wilderness, reserve, preserve, or other
                conservation area. The designation also does not allow the government
                or public to access private lands, nor does designation require
                implementation of restoration, recovery, or enhancement measures by
                non-Federal landowners. Where a landowner requests Federal agency
                funding or authorization for an action that may affect a listed species
                or critical habitat, the Federal agency would be required to consult
                with the Service under section 7(a)(2) of the Act. However, even if the
                Service were to conclude that the proposed activity would result in
                destruction or adverse modification of the critical habitat, the
                Federal action agency and the landowner are not required to abandon the
                proposed activity, or to restore or recover the species; instead, they
                must implement ``reasonable and prudent alternatives'' to avoid
                destruction or adverse modification of critical habitat.
                 Under the first prong of the Act's definition of critical habitat,
                areas within the geographical area occupied by the species at the time
                it was listed are included in a critical habitat designation if they
                contain physical or biological features (1) which are essential to the
                conservation of the species and (2) which may require special
                management considerations or protection. For these areas, critical
                habitat designations identify, to the extent known using the best
                scientific and commercial data available, those physical or biological
                features that are essential to the conservation of the species (such as
                space, food, cover, and protected habitat). In identifying those
                physical or biological features that occur in specific occupied areas,
                we focus on the specific features that are essential to support the
                life-history needs of the species, including, but not limited to, water
                characteristics, soil type, geological features, prey, vegetation,
                symbiotic species, or other features. A feature may be a single habitat
                characteristic, or a more complex combination of habitat
                characteristics. Features may include habitat characteristics that
                support ephemeral or dynamic habitat conditions. Features may also be
                expressed in terms relating to principles of conservation biology, such
                as patch size, distribution distances, and connectivity.
                 Under the second prong of the Act's definition of critical habitat,
                we can designate critical habitat in areas outside the geographical
                area occupied by the species at the time it is listed, upon a
                determination that such areas are essential for the conservation of the
                species. When designating critical habitat, the Secretary will first
                evaluate areas occupied by the species. The Secretary will consider
                unoccupied areas to be essential only where a critical habitat
                designation limited to geographical areas occupied by the species would
                be inadequate to ensure the conservation of the species. In addition,
                for an unoccupied area to be considered essential, the Secretary must
                determine that there is a reasonable certainty both that the area will
                contribute to the conservation of the species and that the area
                contains one or more of those physical or biological features essential
                to the conservation of the species.
                 Section 4 of the Act requires that we designate critical habitat on
                the basis of the best scientific data available. Further, our Policy on
                Information Standards under the Endangered Species Act (published in
                the Federal Register on July 1, 1994 (59 FR 34271)), the Information
                Quality Act (section 515 of the Treasury and General Government
                Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
                and our associated Information Quality Guidelines provide criteria,
                establish procedures, and provide guidance to ensure that our decisions
                are based on the best scientific data available. They require our
                biologists, to the extent consistent with the Act and with the use of
                the best scientific data available, to use primary and original sources
                of information as the basis for recommendations to designate critical
                habitat.
                 When we are determining which areas should be designated as
                critical habitat, our primary source of information is generally the
                information from the SSA report and information developed during the
                listing process for the species. Additional information sources may
                include any generalized conservation strategy, criteria, or outline
                that may have been developed for the species; the recovery plan for the
                species; articles in peer-reviewed journals; conservation plans
                developed by States and counties; scientific status surveys and
                studies; biological assessments; other unpublished materials; or
                experts' opinions or personal knowledge.
                 Habitat is dynamic, and species may move from one area to another
                over time. We recognize that critical habitat designated at a
                particular point in time may not include all of the habitat areas that
                we may later determine are necessary for the recovery of the species.
                For these reasons, a critical habitat designation does not signal that
                habitat outside the designated area is unimportant or may not be needed
                for recovery of the species. Areas that are important to the
                conservation of the species, both inside and outside the critical
                habitat designation, will continue to be subject to: (1) Conservation
                actions implemented under section 7(a)(1) of the Act; (2) regulatory
                protections afforded by the requirement in section 7(a)(2) of the Act
                for Federal agencies to ensure their actions are not likely to
                jeopardize the continued existence of any endangered or threatened
                species; and (3) the prohibitions found in section 9 of the Act.
                Federally funded or permitted projects affecting listed species outside
                their designated critical habitat areas may still result in jeopardy
                findings in some cases. These protections and conservation tools will
                continue to contribute to recovery of this species. Similarly, critical
                habitat designations made on the basis of the best available
                information at the time of designation will not control the direction
                and substance of future recovery plans, habitat conservation plans
                (HCPs), or other species conservation planning efforts if new
                information available at the time of these planning efforts calls for a
                different outcome.
                Prudency Determination
                 Section 4(a)(3) of the Act, as amended, and implementing
                regulations (50 CFR 424.12), require that, to the maximum extent
                prudent and determinable, the Secretary shall designate critical
                habitat at the time the species is determined to be an endangered or
                threatened species. Our regulations (50 CFR 424.12(a)(1)) state that
                the Secretary may, but is not required to, determine that a designation
                would not be prudent in the following circumstances:
                 (i) The species is threatened by taking or other human activity and
                identification of critical habitat can be expected to increase the
                degree of such threat to the species;
                 (ii) The present or threatened destruction, modification, or
                curtailment of a species' habitat or range is not a threat to the
                species, or threats to the species' habitat stem solely from causes
                that cannot be addressed through management actions resulting from
                consultations under section 7(a)(2) of the Act;
                 (iii) Areas within the jurisdiction of the United States provide no
                more than negligible conservation value, if any, for
                [[Page 53595]]
                a species occurring primarily outside the jurisdiction of the United
                States;
                 (iv) No areas meet the definition of critical habitat; or
                 (v) The Secretary otherwise determines that designation of critical
                habitat would not be prudent based on the best scientific data
                available.
                 As discussed in the SSA Report (Service 2018, p. 50), there is
                currently no imminent threat of collection or vandalism identified
                under Factor B for this species, and identification and mapping of
                critical habitat is not expected to initiate any such threat. In our
                SSA and the above proposed listing determination for the Pe[ntilde]asco
                least chipmunk, we determined that the present or threatened
                destruction, modification, or curtailment of habitat or range is a
                threat to the Pe[ntilde]asco least chipmunk and that those threats in
                some way can be addressed by section 7(a)(2) consultation measures. The
                species occurs wholly in the jurisdiction of the United States and we
                are able to identify areas that meet the definition of critical
                habitat. Therefore, because none of the circumstances enumerated in our
                regulations at 50 CFR 424.12(a)(1) have been met and because there are
                no other circumstances the Secretary has identified for which this
                designation of critical habitat would be not prudent, we have
                determined that the designation of critical habitat is prudent for the
                Pe[ntilde]asco least chipmunk.
                Critical Habitat Determinability
                 Having determined that designation is prudent, under section
                4(a)(3) of the Act we must find whether critical habitat for the
                Pe[ntilde]asco least chipmunk is determinable. Our regulations at 50
                CFR 424.12(a)(2) state that critical habitat is not determinable when
                one or both of the following situations exist:
                 (i) Data sufficient to perform required analyses are lacking, or
                 (ii) The biological needs of the species are not sufficiently well
                known to identify any area that meets the definition of ``critical
                habitat.''
                 When critical habitat is not determinable, the Act allows the
                Service an additional year to publish a critical habitat designation
                (16 U.S.C. 1533(b)(6)(C)(ii)).
                 We reviewed the available information pertaining to the biological
                needs of the species and habitat characteristics where the species is
                located. This and other information represent the best scientific data
                available and led us to conclude that the designation of critical
                habitat is determinable for the Pe[ntilde]asco least chipmunk.
                Physical or Biological Features Essential to the Conservation of the
                Species
                 In accordance with section 3(5)(A)(i) of the Act and regulations at
                50 CFR 424.12(b), in determining which areas we will designate as
                critical habitat from within the geographical area occupied by the
                species at the time of listing, we consider the physical or biological
                features that are essential to the conservation of the species and that
                may require special management considerations or protection. The
                regulations at 50 CFR 424.02 define ``physical or biological features
                essential to the conservation of the species'' as the features that
                occur in specific areas and that are essential to support the life-
                history needs of the species, including but not limited to, water
                characteristics, soil type, geological features, sites, prey,
                vegetation, symbiotic species, or other features. A feature may be a
                single habitat characteristic, or a more complex combination of habitat
                characteristics. Features may include habitat characteristics that
                support ephemeral or dynamic habitat conditions. Features may also be
                expressed in terms relating to principles of conservation biology, such
                as patch size, distribution distances, and connectivity.
                 For example, physical features essential to the conservation of the
                species might include gravel of a particular size required for
                spawning, alkaline soil for seed germination, protective cover for
                migration, or susceptibility to flooding or fire that maintains
                necessary early-successional habitat characteristics. Biological
                features might include prey species, forage grasses, specific kinds or
                ages of trees for roosting or nesting, symbiotic fungi, or a particular
                level of nonnative species consistent with conservation needs of the
                listed species. The features may also be combinations of habitat
                characteristics and may encompass the relationship between
                characteristics or the necessary amount of a characteristic essential
                to support the life history of the species.
                 In considering whether features are essential to the conservation
                of the species, the Service may consider an appropriate quality,
                quantity, and spatial and temporal arrangement of habitat
                characteristics in the context of the life-history needs, condition,
                and status of the species. These characteristics include, but are not
                limited to, space for individual and population growth and for normal
                behavior; food, water, air, light, minerals, or other nutritional or
                physiological requirements; cover or shelter; sites for breeding,
                reproduction, or rearing (or development) of offspring; and habitats
                that are protected from disturbance.
                 We derive the specific physical or biological features essential
                for the Pe[ntilde]asco least chipmunk from studies of the species'
                habitat, ecology, and life history. Pe[ntilde]asco least chipmunk
                habitat is characterized as high-elevation subalpine habitat in the
                White Mountains, composed of Thurber's fescue (Festuca thurberi)
                meadows, where rock outcrops or talus are present (Frey and Hays 2017,
                p. 34). Subalpine Thurber's fescue meadow/grassland community occurs
                within openings in high-elevation spruce-fir forest and above tree line
                in the glacial cirque. These Thurber's fescue grasslands contain tall
                bunchgrasses, including Thurber's fescue, sedges, flowering forbs, and
                shrubs (Frey and Hays 2017, pp. 2-3). Bunchgrasses and forbs provide
                cover from predators. The elevation of subalpine habitat in the White
                Mountains ranges from 2,500 m to 3,597 m (8,200 ft to 11,800 ft).
                Forage for Pe[ntilde]asco least chipmunks consists of the seeds and
                flowers of forbs, particularly species of Asteraceae (Frey and Hays
                2017, p. 34). The diet also includes flowers and fruits of gooseberry
                (Ribes spp.) and wild strawberry (Fragaria spp.), pinyon (Pinus edulis)
                nuts, Gambel oak (Quercus gambelii) acorns, insects, and other items
                (Sullivan 1993, p. 3).
                 The Pe[ntilde]asco least chipmunk is likely extirpated from the
                Sacramento Mountains, and the habitat no longer supports the species;
                therefore, we did not include the Sacramento Mountains in our critical
                habitat designation or analysis of physical or biological features. The
                habitat occupied by Pe[ntilde]asco least chipmunks is different for the
                subspecies in the White Mountains versus the Sacramento Mountains. A
                full description of the needs of individuals, populations, and the
                species is available in the SSA report.
                Summary of Essential Physical or Biological Features
                 In summary, we derive the specific physical or biological features
                essential to the conservation of Pe[ntilde]asco least chipmunk from
                studies of this species' habitat, ecology, and life history as
                described in the Background portion of this rule, above. Additional
                information can be found in the SSA Report (Service 2018) available on
                the internet at https://www.regulations.gov under Docket No. FWS-R2-ES-
                2020-0042. We have determined that the following physical or biological
                features are
                [[Page 53596]]
                essential to the conservation of the Pe[ntilde]asco least chipmunk:
                 (1) Areas within the White Mountains:
                 (a) Between elevations of 2,500-3,597 meters (8,200-11,800 feet),
                 (b) That contain rock outcrops or talus, and
                 (c) That are subalpine Thurber's fescue meadow/grassland
                communities found within openings of spruce-fir forest, above tree line
                in the glacial cirque, containing tall bunchgrasses, including
                Thurber's fescue, sedges, flowering forbs, and shrubs.
                 (2) Forage, including species of Asteraceae, flowers and fruits of
                gooseberry (Ribes spp), wild strawberry (Fragaria spp.), pinyon (Pinus
                edulis) nuts, Gambel oak (Quercus gambelii) acorns, and insects.
                Special Management Considerations or Protection
                 When designating critical habitat, we assess whether the specific
                areas within the geographical area occupied by the species at the time
                of listing contain features that are essential to the conservation of
                the species and which may require special management considerations or
                protection. The features essential to the conservation of the
                Pe[ntilde]asco least chipmunk may require special management
                considerations or protections to reduce the following threats: (1)
                Forest encroachment due to altered fire regime; (2) recreation,
                development, land use, and land management; (3) destruction of habitat
                by nonnative species (feral hogs); and (4) disease.
                 Management activities that could ameliorate these threats include,
                but are not limited to: Prescribed fire and forest management to
                maintain the open subalpine meadows with native vegetation; continued
                closure of the encompassing Forest Service allotment to grazing;
                disease management; and feral hog management.
                 In summary, we find that the occupied areas we are proposing to
                designate as critical habitat contain the physical or biological
                features that are essential to the conservation of the species and that
                may require special management considerations or protection. Special
                management considerations or protection may be required of Federal
                agencies that may take actions in designated critical habitat in order
                to eliminate, or to reduce to negligible levels, the threats affecting
                the physical and biological features of the unit.
                Criteria Used To Identify Critical Habitat
                 As required by section 4(b)(2) of the Act, we use the best
                scientific data available to designate critical habitat. In accordance
                with the Act and our implementing regulations at 50 CFR 424.12(b), we
                review available information pertaining to the habitat requirements of
                the species and identify specific areas within the geographical area
                occupied by the species at the time of listing and any specific areas
                outside the geographical area occupied by the subspecies to be
                considered for designation as critical habitat.
                 We are proposing to designate critical habitat in areas within the
                geographical area that was occupied by the species at the time of
                listing. We also are proposing to designate specific areas outside the
                geographical area that was occupied by the species at the time of
                listing because we have determined that a designation limited to
                occupied areas would be inadequate to ensure the conservation of the
                species. Furthermore, we conclude there is a reasonable certainty that
                the unoccupied area will contribute to the conservation of the species
                and contains one or more of those physical or biological features
                essential to the conservation of the species. We have also determined
                that the unoccupied area falls within the regulatory definition of
                ``habitat'' at 50 CFR 424.02.
                 The current distribution of the Pe[ntilde]asco least chipmunk is
                much reduced from its historical range. We anticipate that recovery
                will require continued protection of the existing population and its
                habitat, and potentially reintroduction of Pe[ntilde]asco least
                chipmunk into historically occupied areas in the Sacramento Mountains,
                ensuring there are adequate numbers in both of the two historical
                locations. This strategy will help to ensure that catastrophic events,
                such as the effects of fire, cannot simultaneously affect all known
                populations. Rangewide recovery considerations, such as maintaining
                existing genetic diversity and striving for connectivity within
                portions of the species' current range to allow adequate movement to
                assure genetic diversity, were considered in formulating this proposed
                critical habitat.
                 Sources of data for this proposed critical habitat designation
                include multiple reports and discussions with species experts,
                including New Mexico Department of Game and Fish (see SSA report). We
                have also reviewed available information that pertains to the habitat
                requirements of this species. Sources of information on habitat
                requirements include studies conducted at occupied sites and published
                in peer-reviewed articles and agency reports, and data collected during
                monitoring efforts.
                Areas Occupied at the Time of Listing
                 The proposed critical habitat designation does not include all
                areas known to have been occupied by the Pe[ntilde]asco least chipmunk
                historically; instead, it focuses on the currently occupied area within
                the historical range that retains the necessary physical or biological
                features that will allow for the maintenance and expansion of the
                existing population. We are not proposing any critical habitat in the
                Sacramento Mountains because we conclude that the area no longer has
                the ability to support the species.
                 We delineated occupied and unoccupied critical habitat unit
                boundaries using the following geospatial methodology:
                 (1) First, we compiled all known Pe[ntilde]asco least chipmunk
                observations (i.e., captures) in the White Mountains from 1931-2018,
                mapped their locations, and eliminated duplicate records. This process
                provided a bounded estimate of the subspecies' known range.
                 (2) Using existing U.S. Forest Service vegetation mapping for the
                Lincoln National Forest, we identified and exported all vegetation
                classes that coincided with the known observations. The vegetation
                classes included (1) mixed grass-forb and (2) Gambel oak, which are
                consistent with physical habitat descriptions for the subspecies in the
                White Mountains. Vegetation characterized by meadow/grassland community
                within openings of spruce-fir forest are one of the physical or
                biological features essential to the conservation of the Pe[ntilde]asco
                least chipmunk.
                 (3) Next, we determined the elevation interval in which the White
                Mountains population has been observed. We used that interval to
                further define the extent of the grass-forb and Gambel oak vegetation
                classes. Although the upper limit of the occupied interval did not
                extend to the highest points within the critical habitat units, we
                assumed that the Pe[ntilde]asco least chipmunk is capable of occupying
                these higher elevations as the difference (roughly 100 meters or 330
                feet) is not substantial. Therefore, we extended the interval to
                include the highest peaks within each unit. This process resulted in a
                basic model of potential habitat.
                 (4) Finally, we refined the output of step 3 (above) through aerial
                photo interpretation in order to correct for the
                [[Page 53597]]
                coarse resolution imparted by the vegetation mapping. Essentially, this
                process allows the model to be more accurate and applicable at a finer
                scale.
                 The critical habitat area was mapped using ArcMap version 10.6.1
                (Environmental Systems Research Institute, Inc. 2018), a Geographic
                Information Systems (GIS) computer application. We identified two
                critical habitat units in the White Mountains known to be occupied by
                Pe[ntilde]asco least chipmunks as of 2019. We identified a third
                critical habitat unit between these two occupied units that has the
                physical and biological features required by the Pe[ntilde]asco least
                chipmunk but has not yet been surveyed for occupancy.
                 We have determined that a designation limited to the two occupied
                units would be inadequate to ensure the conservation of the subspecies
                because there is only one remaining population, which has low
                resiliency and no redundancy, making it vulnerable to catastrophic or
                stochastic events and further compounding the risks of small population
                sizes. The risk of subspecies extinction from a disease outbreak, large
                wildfire, or extreme drought is high. A low-resiliency single
                population provides no redundancy for the species, and a single
                catastrophic event could cause species extinction.
                Areas Outside the Geographic Area Occupied at the Time of Listing
                 Because we have determined known occupied areas alone are not
                adequate for the conservation of the species, we have evaluated whether
                any unoccupied areas are essential for the conservation of the species.
                We are proposing as critical habitat one unit situated between the two
                known occupied units that is currently considered unoccupied because of
                a lack of survey data. We have determined that it is essential for the
                conservation of the species as it provides important connectivity
                between the two occupied units and could support population expansion
                into this area, if not populated already. Limited functional habitat
                exists within the White Mountains, and connectivity between known
                locations of Pe[ntilde]asco least chipmunk is essential to the
                conservation of the subspecies because it provides more of the physical
                or biological features upon which the subspecies depends for feeding,
                sheltering and reproducing. This unit provides a link between the two
                known occupied units. The unit has all of the physical or biological
                features necessary for the conservation of the Pe[ntilde]asco least
                chipmunk; it's in the White Mountains, at elevations of 2,500-3,597
                meters (8,200-11,800 feet), with rock outcrop, and the vegetation is
                characterized by meadow/grassland community within openings of spruce-
                fir forests.
                 Small, isolated populations of animals with restricted movement and
                low genetic diversity are more likely to become extirpated than larger
                populations with greater movement between sub-populations within them
                and greater genetic diversity. Due to the small population sizes found
                within the two occupied units, either or both could become extirpated
                from local catastrophic events or the deleterious effects of genetic
                bottlenecking resulting from inbreeding that reduces the viability of a
                population, if they had no connectivity. The unoccupied unit in between
                these two known occupied units has never been surveyed for
                Pe[ntilde]asco least chipmunk, due to its remoteness and difficulty to
                access. It does, however, maintain all the physical or biological
                features of the occupied areas. We analyzed this using remote GIS
                vegetation and landscape feature data from the U.S. Forest Service and
                the U.S. Department of Agriculture National Agricultural Imagery
                Program. It is possible the Pe[ntilde]asco least chipmunk is present in
                the unoccupied unit; however, with no confirmed records, we are
                treating it as unoccupied for purposes of this designation. Physical or
                biological features essential to the conservation of Pe[ntilde]asco
                least chipmunk are areas within the White Mountains, between elevations
                of 2,500-3,597 meters (8,200-11,800 feet), that contain rock outcrops,
                and vegetation associated with meadow/grassland communities within
                openings of spruce-fir forests. This unoccupied unit provides all of
                the physical or biological features to allow for breeding, feeding,
                sheltering and dispersal of Pe[ntilde]asco least chipmunk. The
                unoccupied unit is within the White Mountains with varying elevations
                between 2,500-3,597 meters (8,200-11,800 feet), and rock outcrops, and
                approximately 44 percent of this unit is classified as grass-forb mix
                or Gambel oak. We find that this unit currently contains the resources
                and conditions necessary to support multiple life processes (i.e.,
                breeding, feeding, sheltering and dispersal) of the Pe[ntilde]asco
                least chipmunk.
                General Information on the Maps of the Proposed Critical Habitat
                Designation
                 The proposed critical habitat designation is defined by the map or
                maps, as modified by any accompanying regulatory text, presented at the
                end of this document under Proposed Regulation Promulgation. We include
                more detailed information on the boundaries of the proposed critical
                habitat designation in the discussion of individual units, below. We
                will make the coordinates or plot points or both on which each map is
                based available to the public on https://www.regulations.gov under
                Docket No. FWS-R2-ES-2020-0042.
                 When determining proposed critical habitat boundaries, we made
                every effort to avoid including developed areas such as lands covered
                by pavement, buildings, and other structures because such lands lack
                physical or biological features necessary for the Pe[ntilde]asco least
                chipmunk. The scale of the maps we prepared under the parameters for
                publication within the Code of Federal Regulations may not reflect the
                exclusion of such developed lands. Any such lands inadvertently left
                inside critical habitat boundaries shown on the maps of this proposed
                rule have been excluded by text in the proposed rule and are not
                proposed for designation as critical habitat. Therefore, if the
                critical habitat is finalized as proposed, a Federal action involving
                these lands would not trigger section 7 consultation under the Act with
                respect to critical habitat and the requirement of no adverse
                modification unless the specific action would affect the physical or
                biological features in the adjacent critical habitat.
                 We propose to designate as critical habitat lands that we have
                determined are occupied at the time of listing (i.e., currently known
                to be occupied) and that contain one or more of the physical or
                biological features essential to support life-history processes of the
                species. We have determined that the known occupied areas are
                inadequate to ensure the conservation of the species. Therefore, we
                have also identified, and propose for designation as critical habitat,
                unoccupied areas that are essential for the conservation of the
                species. For those unoccupied areas, we have determined that it is
                reasonably certain that the unoccupied areas will contribute to the
                conservation of the species and contain one or more of the physical or
                biological features that are essential to the conservation of the
                species. We have also determined that the unoccupied areas fall within
                the regulatory definition of ``habitat'' at 50 CFR 424.02.
                Proposed Critical Habitat Designation
                 We are proposing to designate approximately 2,660 hectares (6,574
                acres) in three units in New Mexico as critical habitat for the
                Pe[ntilde]asco least chipmunk. The critical habitat areas we describe
                below constitute our current best assessment of areas that meet the
                [[Page 53598]]
                definition of critical habitat for the Pe[ntilde]asco least chipmunk.
                The three distinct units we propose as critical habitat are: (1) Nogal
                Peak, (2) Crest Trail, and (3) Sierra Blanca. Two of the units are
                currently occupied by the subspecies and the occupancy status by the
                subspecies of one of the units is currently unknown but contains the
                physical and biological features and is essential to the conservation
                of the subspecies. All units proposed may require special management
                considerations or protection to address stressors associated with
                managing prescribed and wildland fire, road management and maintenance,
                development and use around Ski Apache Resort, feral hog management, and
                plague management. Table 4, below, shows the proposed units' names,
                land ownership, and approximate area. Land ownership is predominantly
                Federal. Unit 3 consists of Federal and Tribal lands.
                 Table 4--Proposed Critical Habitat Units for the Pe[ntilde]asco Least Chipmunk
                ----------------------------------------------------------------------------------------------------------------
                 Area of overlap
                 with Mexican Overlap with
                 Occupied at the Area of unit, spotted owl Lincoln
                 Critical habitat unit time of listing Ownership in hectares, designated National Forest
                 (acres) critical wilderness area
                 habitat
                ----------------------------------------------------------------------------------------------------------------
                Unit 1. Nogal Peak.......... Yes............ Federal........ 393 (972) 100%, 393 100%, 393
                 hectares, 972 hectares, 972
                 acres. acres.
                Unit 2. Crest Trail......... No............. Federal........ 910 (2,249) 89.5%, 814 100%, 910
                 hectares, hectares,
                 2,011 acres. 2,249 acres.
                Unit 3. Sierra Blanca....... Yes............ Federal; Tribal 1,357 (3,353) 56.9%, 772 17.2%, 234
                 hectares, hectares, 577
                 1,098 acres. acres.
                ----------------------------------------------------------------------------------------------------------------
                 Total 2,660 (6,574)
                ----------------------------------------------------------------------------------------------------------------
                Unit 1: Nogal Peak, New Mexico
                 Unit 1 consists of approximately 393 hectares (972 acres) of
                subalpine habitat within the Lincoln National Forest Wilderness Area
                and is occupied. This unit is within the critical habitat designation
                in Lincoln County, New Mexico, for the Mexican spotted owl, which is
                listed as a threatened species under the Act. Elevation ranges
                approximately 2,570-3,031 m (8,432-9,944 ft) above mean sea level
                (MSL). Mean elevation in Unit 1 is 2,772 m (9,094 ft) with a standard
                deviation of 70 meters (230 ft). Approximately 79 percent of Unit 1 is
                classified as grass-forb mix or Gambel oak. Unit 1 contains all the
                physical or biological features that are essential to the conservation
                of the species; it is within the White Mountains, between elevations of
                2,500-3,597 meters (8,200-11,800 feet), with rock outcrops and talus,
                and 79 percent of the unit is characterized by meadow/grassland
                community within opening of spruce-fir forests. This unit is federally
                owned by the U.S. Forest Service; it is 100 percent within the Lincoln
                National Forest Wilderness Area. Threats to the unit include forest
                encroachment into the open meadows, grazing, and destruction of habitat
                by nonnative species (feral hogs); these can be ameliorated through
                prescribed fire and forest management to maintain the open subalpine
                meadows with native vegetation, continued closure of the encompassing
                Forest Service allotment to grazing, and feral hog management.
                Unit 2: Crest Trail, New Mexico
                 Unit 2 consists of approximately 910 hectares (2,249 acres) of
                subalpine habitat. Although it is considered unoccupied, Unit 2
                contains the physical or biological features essential to the
                conservation of the species and serves as a connectivity corridor
                between Unit 1 and Unit 3. Due to the location between Units 1 and 3
                and the overall suitability of the habitat, it is possible the
                Pe[ntilde]asco least chipmunk is present in the unoccupied unit;
                however, with no confirmed records, we are treating it as unoccupied
                for purposes of this designation. Approximately 89 percent of this unit
                is within the critical habitat designation for the Mexican spotted owl
                in Lincoln County, New Mexico. This unit is federally owned by the U.S.
                Forest Service and is 100 percent within the Lincoln National Forest
                Wilderness Area. Elevation ranges approximately 2,621-3,292 m (8,599-
                10,800 ft) above MSL. Mean elevation in Unit 2 is 2,876 m (9,436 ft)
                with a standard deviation of 139 meters (456 ft). Approximately 44
                percent of Unit 2 is classified as grass-forb mix or Gambel oak. Unit 2
                contains all the physical or biological features that are essential to
                the conservation of the species; it is within the White Mountains,
                between elevations of 2,500-3,597 meters (8,200-11,800 feet), with rock
                outcrops and talus, and 44 percent of the unit is characterized by
                meadow/grassland community within openings of spruce-fir forests.
                Unit 3: Sierra Blanca, New Mexico
                 Unit 3 includes approximately 1,357 hectares (3,353 acres) of
                subalpine habitat, contains the physical or biological features that
                are essential to the conservation of the species, and is known to be
                occupied. The proportion of Unit 3 located on Mescalero Tribal lands is
                approximately 581 hectares (1,435 acres) or 43 percent. The unit
                contains the Ski Apache Resort; the land is owned by the U.S. Forest
                Service, but managed under a permit by the Mescalero Apache Tribe. The
                resort occupies 543 hectares (1,431 acres), 40 percent of the unit. The
                remaining 17 percent is U.S. Forest Service land, part of the Lincoln
                National Forest Wilderness Area. Approximately 57 percent of the unit
                is also Mexican spotted owl critical habitat in Lincoln and Otero
                Counties, New Mexico. Elevation ranges approximately 2,763-3,638 m
                (9,065-11,936 ft) above MSL. Mean elevation in Unit 3 is 3,219 m
                (10,561 ft) with a standard deviation of 145 m (476 ft). Approximately
                52 percent of Unit 3 is classified as grass-forb mix or Gambel oak.
                Unit 3 contains all the physical or biological features that are
                essential to the conservation of the species; it is within the White
                Mountains, between elevations of 2,500-3,597 meters (8,200-11,800
                feet), with rock outcrops and talus, and 52 percent of the unit is
                characterized by meadow/grassland community within openings of spruce-
                fir forests. Threats to the unit include forest encroachment into the
                open meadows, recreation, development, land use, and land management,
                grazing, and destruction of habitat by nonnative species (feral hogs);
                these can be ameliorated through prescribed fire and forest management
                to maintain the open subalpine meadows with native vegetation,
                continued closure of the encompassing
                [[Page 53599]]
                Forest Service allotment to grazing, and feral hog management.
                Effects of Critical Habitat Designation
                Section 7 Consultation
                 Section 7(a)(2) of the Act requires Federal agencies, including the
                Service, to ensure that any action they fund, authorize, or carry out
                is not likely to jeopardize the continued existence of any endangered
                species or threatened species or result in the destruction or adverse
                modification of designated critical habitat of such species. In
                addition, section 7(a)(4) of the Act requires Federal agencies to
                confer with the Service on any agency action that is likely to
                jeopardize the continued existence of any species proposed to be listed
                under the Act or result in the destruction or adverse modification of
                proposed critical habitat.
                 We published a final rule revising the definition of destruction or
                adverse modification on August 27, 2019 (84 FR 44976). Destruction or
                adverse modification means a direct or indirect alteration that
                appreciably diminishes the value of critical habitat as a whole for the
                conservation of a listed species.
                 If a Federal action may affect a listed species or its critical
                habitat, the responsible Federal agency (action agency) must enter into
                consultation with us. Examples of actions that are subject to the
                section 7 consultation process are actions on State, Tribal, local, or
                private lands that require a Federal permit (such as a permit from the
                U.S. Army Corps of Engineers under section 404 of the Clean Water Act
                (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
                of the Act) or that involve some other Federal action (such as funding
                from the Federal Highway Administration, Federal Aviation
                Administration, or the Federal Emergency Management Agency). Federal
                actions not affecting listed species or critical habitat, and actions
                on State, Tribal, local, or private lands that are not federally funded
                or authorized, do not require section 7 consultation.
                 Compliance with the requirements of section 7(a)(2) is documented
                through our issuance of:
                 (1) A concurrence letter for Federal actions that may affect, but
                are not likely to adversely affect, listed species or critical habitat;
                or
                 (2) A biological opinion for Federal actions that may affect, and
                are likely to adversely affect, listed species or critical habitat.
                 When we issue a biological opinion concluding that a project is
                likely to jeopardize the continued existence of a listed species and/or
                destroy or adversely modify critical habitat, we provide reasonable and
                prudent alternatives to the project, if any are identifiable, that
                would avoid the likelihood of jeopardy and/or destruction or adverse
                modification of critical habitat. We define ``reasonable and prudent
                alternatives'' (at 50 CFR 402.02) as alternative actions identified
                during consultation that:
                 (1) Can be implemented in a manner consistent with the intended
                purpose of the action,
                 (2) Can be implemented consistent with the scope of the Federal
                agency's legal authority and jurisdiction,
                 (3) Are economically and technologically feasible, and
                 (4) Would, in the Service Director's opinion, avoid the likelihood
                of jeopardizing the continued existence of the listed species and/or
                avoid the likelihood of destroying or adversely modifying critical
                habitat.
                 Reasonable and prudent alternatives can vary from slight project
                modifications to extensive redesign or relocation of the project. Costs
                associated with implementing a reasonable and prudent alternative are
                similarly variable.
                 Regulations at 50 CFR 402.16 set forth requirements for Federal
                agencies to reinitiate formal consultation on previously reviewed
                actions. These requirements apply when the Federal agency has retained
                discretionary involvement or control over the action (or the agency's
                discretionary involvement or control is authorized by law) and,
                subsequent to the previous consultation, we have listed a new species
                or designated critical habitat that may be affected by the Federal
                action, or the action has been modified in a manner that affects the
                species or critical habitat in a way not considered in the previous
                consultation. In such situations, Federal agencies sometimes may need
                to request reinitiation of consultation with us, but the regulations
                also specify some exceptions to the requirement to reinitiate
                consultation on specific land management plans after subsequently
                listing a new species or designating new critical habitat. See the
                regulations for a description of those exceptions.
                Application of the ``Destruction or Adverse Modification'' Standard
                 The key factor related to the destruction or adverse modification
                determination is whether implementation of the proposed Federal action
                directly or indirectly alters the designated critical habitat in a way
                that appreciably diminishes the value of the critical habitat as a
                whole for the conservation of the listed species. As discussed above,
                the role of critical habitat is to support physical or biological
                features essential to the conservation of a listed species and provide
                for the conservation of the species.
                 Section 4(b)(8) of the Act requires us to briefly evaluate and
                describe, in any proposed or final regulation that designates critical
                habitat, activities involving a Federal action that may violate section
                7(a)(2) of the Act by destroying or adversely modifying such habitat,
                or that may be affected by such designation.
                 Activities that the Services may, during a consultation under
                section 7(a)(2) of the Act, find are likely to destroy or adversely
                modify critical habitat include, but are not limited to:
                 (1) Management of the Ski Apache Resort to include maintaining ski
                runs or recreational paths that are clear of trees, maintaining
                existing roads through grading, and maintaining facilities that include
                structures and features for ski lifts, the gondola, and zip line;
                 (2) Forest management activities, including timber harvest,
                prescribed fire, etc.;
                 (3) Road maintenance activities; and
                 (4) Recreation site maintenance and development of new sites,
                including trails.
                Exemptions
                Application of Section 4(a)(3) of the Act
                 Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
                provides that: ``The Secretary shall not designate as critical habitat
                any lands or other geographical areas owned or controlled by the
                Department of Defense, or designated for its use, that are subject to
                an integrated natural resources management plan [INRMP] prepared under
                section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
                determines in writing that such plan provides a benefit to the species
                for which critical habitat is proposed for designation.'' There are no
                Department of Defense (DoD) lands with a completed INRMP within the
                proposed critical habitat designation.
                Consideration of Impacts Under Section 4(b)(2) of the Act
                 Section 4(b)(2) of the Act states that the Secretary shall
                designate and make revisions to critical habitat on the basis of the
                best available scientific data after taking into consideration the
                economic impact, national security impact, and any other relevant
                impact of specifying
                [[Page 53600]]
                any particular area as critical habitat. The Secretary may exclude an
                area from critical habitat if we determine that the benefits of such
                exclusion outweigh the benefits of specifying such area as part of the
                critical habitat, unless we determine, based on the best scientific
                data available, that the failure to designate such area as critical
                habitat will result in the extinction of the species. In making that
                determination, the statute on its face and the legislative history are
                clear that the Secretary has broad discretion regarding which factor(s)
                to use and how much weight to give to any factor.
                 We describe below the process that we undertook for taking into
                consideration each category of impacts and our analyses of the relevant
                impacts.
                 Lands owned by the Mescalero Apache Tribe are included in this
                critical habitat proposal. We are considering these lands for exclusion
                from critical habitat (see Exclusions, below). However, the final
                decision on whether to exclude any areas will be based on the best
                scientific data available at the time of the final designation,
                including information we obtain during the comment period and
                information about the economic impacts of the designation. Accordingly,
                we have prepared a draft economic analysis (DEA) concerning the
                proposed critical habitat designation, which is available for review
                and comment (see ADDRESSES, above).
                Consideration of Economic Impacts
                 Section 4(b)(2) of the Act and its implementing regulations require
                that we consider the economic impact that may result from a designation
                of critical habitat. To assess the probable economic impacts of a
                designation, we must first evaluate specific land uses or activities
                and projects that may occur in the area of the critical habitat. We
                then must evaluate the impacts that a specific critical habitat
                designation may have on restricting or modifying specific land uses or
                activities for the benefit of the species and its habitat within the
                areas proposed. We then identify which conservation efforts may be the
                result of the species being listed under the Act versus those
                attributed solely to the designation of critical habitat for this
                particular species. The probable economic impact of a proposed critical
                habitat designation is analyzed by comparing scenarios both ``with
                critical habitat'' and ``without critical habitat.'' The ``without
                critical habitat'' scenario represents the baseline for the analysis,
                which includes the existing regulatory and socio-economic burden
                imposed on landowners, managers, or other resource users potentially
                affected by the designation of critical habitat (e.g., under the
                Federal listing as well as other Federal, State, and local
                regulations). The baseline, therefore, represents the costs of all
                efforts attributable to the listing of the species under the Act (i.e.,
                conservation of the species and its habitat incurred regardless of
                whether critical habitat is designated). The ``with critical habitat''
                scenario describes the incremental impacts associated specifically with
                the designation of critical habitat for the species. The incremental
                conservation efforts and associated impacts would not be expected
                without the designation of critical habitat for the species. In other
                words, the incremental costs are those attributable solely to the
                designation of critical habitat, above and beyond the baseline costs.
                These are the costs we use when evaluating the benefits of inclusion
                and exclusion of particular areas from the final designation of
                critical habitat should we choose to conduct a discretionary section
                4(b)(2) exclusion analysis.
                 For this particular designation, we developed an incremental
                effects memorandum (IEM) considering the probable incremental economic
                impacts that may result from this proposed designation of critical
                habitat. The information contained in our IEM was then used to develop
                a screening analysis of the probable effects of the designation of
                critical habitat for the Pe[ntilde]asco least chipmunk (Industrial
                Economics, Incorporated (IEc) 2019).
                 We began by conducting a screening analysis of the proposed
                designation of critical habitat in order to focus our analysis on the
                key factors that are likely to result in incremental economic impacts.
                The purpose of the screening analysis is to filter out the geographic
                areas of critical habitat that are already subject to such protections
                and are, therefore, unlikely to incur incremental economic impacts. In
                particular, the screening analysis considers baseline costs (i.e.,
                absent critical habitat designation) and includes probable economic
                impacts where land and water use may be subject to conservation plans,
                land management plans, best management practices, or regulations that
                protect the habitat area as a result of the Federal listing status of
                the species. Ultimately, the screening analysis allows us to focus our
                analysis on evaluating the specific areas or sectors that may incur
                probable incremental economic impacts as a result of the designation.
                If there are any unoccupied units in the proposed critical habitat
                designation, the screening analysis assesses whether any additional
                management or conservation efforts may incur incremental economic
                impacts. This screening analysis, combined with the information
                contained in our IEM, is what we consider our draft economic analysis
                (DEA) of the proposed critical habitat designation for the
                Pe[ntilde]asco least chipmunk and is summarized in the narrative below.
                 Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
                assess the costs and benefits of available regulatory alternatives in
                quantitative (to the extent feasible) and qualitative terms. Consistent
                with the E.O. regulatory analysis requirements, our effects analysis
                under the Act may take into consideration impacts to both directly and
                indirectly affected entities, where practicable and reasonable. If
                sufficient data are available, we assess to the extent practicable the
                probable impacts to both directly and indirectly affected entities. As
                part of our screening analysis, we considered the types of economic
                activities that are likely to occur within the areas likely affected by
                the critical habitat designation.
                 In our evaluation of the probable incremental economic impacts that
                may result from the proposed designation of critical habitat for the
                Pe[ntilde]asco least chipmunk, first we identified, in the IEM dated
                July 2019, probable incremental economic impacts associated with
                certain activities. These activities include (1) management of the Ski
                Apache Resort, to include maintaining: ski runs or recreational paths
                that are clear of trees, existing roads through grading, and facilities
                that include structures and features for ski lifts, the gondola, and
                zip line (permitted by the U.S. Forest Service); and (2) road
                management, maintenance, and new construction (U.S. Forest Service). We
                considered each industry or category individually. Additionally, we
                considered whether their activities have any Federal involvement.
                Critical habitat designation generally will not affect activities that
                do not have any Federal involvement; under the Act, designation of
                critical habitat affects only activities conducted, funded, permitted,
                or authorized by Federal agencies. If we list the species, in areas
                where the Pe[ntilde]asco least chipmunk is present, Federal agencies
                would be required to consult with the Service under section 7 of the
                Act on activities they fund, permit, or implement that may affect the
                species. If, when we list the species, we also finalize this proposed
                critical habitat designation, consultations to avoid the destruction or
                [[Page 53601]]
                adverse modification of critical habitat would be incorporated into the
                existing consultation process.
                 In our IEM, we attempted to clarify the distinction between the
                effects that would result from the species being listed and those
                attributable to the critical habitat designation (i.e., the difference
                between the jeopardy and adverse modification standards) for the
                Pe[ntilde]asco least chipmunk's critical habitat. Because the
                designation of critical habitat for the Pe[ntilde]asco least chipmunk
                was proposed concurrently with the listing, it has been our experience
                that it is more difficult to discern which conservation efforts are
                attributable to the species being listed and those which will result
                solely from the designation of critical habitat. However, the following
                specific circumstances in this case help to inform our evaluation: (1)
                The essential physical and biological features identified for critical
                habitat are the same features essential for the life requisites of the
                species, and (2) any actions that would result in sufficient harm or
                harassment to constitute jeopardy to the Pe[ntilde]asco least chipmunk
                would also likely adversely affect the essential physical and
                biological features of critical habitat. The IEM outlines our rationale
                concerning this limited distinction between baseline conservation
                efforts and incremental impacts of the designation of critical habitat
                for this species. This evaluation of the incremental effects has been
                used as the basis to evaluate the probable incremental economic impacts
                of this proposed designation of critical habitat.
                 We have identified and delineated three proposed critical habitat
                units, totaling approximately 2,660 hectares (6,574 acres), two of
                which are currently occupied by the Pe[ntilde]asco least chipmunk and
                one that is unoccupied but essential to the conservation of the
                subspecies. The two occupied units (Units 1 and 3) are considered
                occupied year-round for the purposes of consultation based on current
                survey data. In the occupied area, any actions that may affect the
                species or its habitat would also affect designated critical habitat,
                and it is unlikely that any additional conservation efforts would be
                recommended to address the adverse modification standard over and above
                those recommended as necessary to avoid jeopardizing the continued
                existence of the Pe[ntilde]asco least chipmunk. While this additional
                analysis in the occupied critical habitat would require time and
                resources by both the Federal action agency and the Service, it is
                believed that, in most circumstances, these costs would predominantly
                be administrative in nature and would not be significant.
                 One of the proposed critical habitat units (Unit 2) is unoccupied.
                No surveys for Pe[ntilde]asco least chipmunk have been done in the
                unit. We assume any costs associated with this unit would be
                attributable to critical habitat rather than the listing of the
                species.
                 Federal agencies are the entities most likely to incur incremental
                costs associated with designating critical habitat, due to section 7
                requirements. We do not anticipate any costs to State or local
                agencies, or impacts on property values related to the public's
                perception of additional regulation, because we do not expect the
                designation of critical habitat for the Pe[ntilde]asco least chipmunk
                to result in changes to New Mexico local regulations (IEc 2019, p. 16).
                 At most, no more than two Pe[ntilde]asco least chipmunk
                consultations (two informal) are anticipated in any given year (IEc
                2019, p. 8). Most of the proposed critical habitat occurs within
                Lincoln National Forest Wilderness Area, where little work and no
                commercial activities occur; it is also existing Mexican spotted owl
                critical habitat. In the past 3 years there have not been any section 7
                consultations in this area. The estimated incremental costs of the
                total critical habitat designation for the Pe[ntilde]asco least
                chipmunk in the first year are unlikely to exceed $5,000 (2019 dollars)
                (IEc 2019, p. 9). Thus, the annual administrative burden would not
                reach $100 million.
                 As we stated earlier, we are soliciting data and comments from the
                public on the DEA and all aspects of the proposed rule and our required
                determinations. During the development of a final designation, we will
                consider the information presented in the DEA and any additional
                information on economic impacts received during the public comment
                period to determine whether any specific areas should be excluded from
                the final critical habitat designation under authority of section
                4(b)(2) and our implementing regulations at 50 CFR 17.90. If we receive
                credible information regarding the existence of a meaningful economic
                impact or other relevant impact supporting a benefit of exclusion, we
                will conduct an exclusion analysis for the relevant area or areas. We
                may also otherwise decide to exercise the discretion to evaluate any
                other areas for possible exclusion. In addition, if we do conduct an
                exclusion analysis and we have received any information from experts
                in, or sources with firsthand knowledge about, impacts that are outside
                the scope of the Service's expertise, for purposes of the exclusion
                analysis we will assign weights to those impacts consistent with the
                information from experts in, or sources with firsthand knowledge about,
                those impacts, unless we have rebutting information. We may exclude an
                area from critical habitat if we determine that the benefits of
                excluding the area outweigh the benefits of including the area,
                provided the exclusion will not result in the extinction of this
                species.
                Consideration of National Security Impacts or Homeland Security Impacts
                 Under section 4(b)(2) of the Act, we consider whether there are
                lands where a national security impact might exist. In preparing this
                proposal, we have determined that the lands adjacent to the proposed
                designation of critical habitat for Pe[ntilde]asco least chipmunk are
                not owned or managed by the Department of Defense or Department of
                Homeland Security. We anticipate no impact on national security.
                However, during the development of a final designation we will consider
                any additional information received through the public comment period
                on the impacts of the proposed designation on national security or
                homeland security to determine whether any specific areas should be
                excluded from the final critical habitat designation under authority of
                section 4(b)(2) and our implementing regulations at 50 CFR 17.90.
                Consideration of Other Relevant Impacts
                 Under section 4(b)(2) of the Act, we consider any other relevant
                impacts, in addition to economic impacts and impacts on national
                security. We consider a number of factors including whether there are
                permitted conservation plans covering the species in the area such as
                HCPs, safe harbor agreements, or candidate conservation agreements with
                assurances, or whether there are nonpermitted conservation agreements
                and partnerships that would be encouraged by designation of, or
                exclusion from, critical habitat. In addition, we look at the existence
                of Tribal conservation plans and partnerships and consider the
                government-to-government relationship of the United States with Tribal
                entities. We also consider any social impacts that might occur because
                of the designation.
                 There are currently no active HCPs or other management plans for
                the Pe[ntilde]asco least chipmunk. We anticipate no impact on current
                partnerships or HCPs from this proposed critical habitat designation.
                [[Page 53602]]
                Tribal Lands
                 Several Executive Orders, Secretarial Orders, and policies concern
                working with Tribes. These guidance documents generally confirm our
                trust responsibilities to Tribes, recognize that Tribes have sovereign
                authority to control Tribal lands, emphasize the importance of
                developing partnerships with Tribal governments, and direct the Service
                to consult with Tribes on a government-to-government basis.
                 A joint Secretarial Order that applies to both the Service and the
                National Marine Fisheries Service (NMFS), Secretarial Order 3206,
                American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
                and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most
                comprehensive of the various guidance documents related to Tribal
                relationships and Act implementation, and it provides the most detail
                directly relevant to the designation of critical habitat. In addition
                to the general direction discussed above, S.O. 3206 explicitly
                recognizes the right of Tribes to participate fully in the listing
                process, including designation of critical habitat. The Order also
                states: ``Critical habitat shall not be designated in such areas unless
                it is determined essential to conserve a listed species. In designating
                critical habitat, the Services shall evaluate and document the extent
                to which the conservation needs of the listed species can be achieved
                by limiting the designation to other lands.'' In light of this
                instruction, when we undertake a discretionary section 4(b)(2)
                exclusion analysis, we will always consider exclusions of Tribal lands
                under section 4(b)(2) of the Act prior to finalizing a designation of
                critical habitat, and will give great weight to Tribal concerns in
                analyzing the benefits of exclusion.
                 However, S.O. 3206 does not preclude us from designating Tribal
                lands or waters as critical habitat, nor does it state that Tribal
                lands or waters cannot meet the Act's definition of ``critical
                habitat.'' We are directed by the Act to identify areas that meet the
                definition of ``critical habitat'' (i.e., areas occupied at the time of
                listing that contain the essential physical or biological features that
                may require special management or protection and unoccupied areas that
                are essential to the conservation of a species), without regard to
                landownership. While S.O. 3206 provides important direction, it
                expressly states that it does not modify the Secretaries' statutory
                authority.
                 Mescalero Apache Tribal lands are included in the proposed
                designation of critical habitat for the Pe[ntilde]asco least chipmunk.
                Approximately 581 hectares (1,435 acres) of Tribal lands occupied by
                the Pe[ntilde]asco least chipmunk meet the definition of critical
                habitat. We will consider these areas for exclusion from the final
                critical habitat designation to the extent consistent with the
                requirements of section 4(b)(2) of the Act. We have notified the
                Mescalero Apache Tribe and requested their feedback. We will continue
                to coordinate with the Mescalero Apache Tribe, as well as any other
                Tribal entity who wishes to provide information to the Service
                regarding this proposed listing and critical habitat designation. A
                final determination on whether the Secretary will exercise the
                discretion to exclude any of these areas from critical habitat for the
                Pe[ntilde]asco least chipmunk will be made when we publish the final
                rule designating critical habitat. During the development of a final
                designation, we will consider all information currently available or
                received during the public comment period. If we receive credible
                information regarding the existence of a meaningful impact supporting a
                benefit of excluding any area, we will undertake an exclusion analysis
                and determine whether those areas should be excluded from the final
                critical habitat designation under authority of section 4(b)(2) and our
                implementing regulations at 50 CFR 17.90. We may also exercise the
                discretion to undertake exclusion analyses for other areas as well.
                Required Determinations
                Clarity of the Rule
                 We are required by Executive Orders 12866 and 12988 and by the
                Presidential Memorandum of June 1, 1998, to write all rules in plain
                language. This means that each rule we publish must:
                 (1) Be logically organized;
                 (2) Use the active voice to address readers directly;
                 (3) Use clear language rather than jargon;
                 (4) Be divided into short sections and sentences; and
                 (5) Use lists and tables wherever possible.
                 If you feel that we have not met these requirements, send us
                comments by one of the methods listed in ADDRESSES. To better help us
                revise the rule, your comments should be as specific as possible. For
                example, you should tell us the numbers of the sections or paragraphs
                that are unclearly written, which sections or sentences are too long,
                the sections where you feel lists or tables would be useful, etc.
                Regulatory Planning and Review (Executive Orders 12866 and 13563)
                 Executive Order 12866 provides that the Office of Information and
                Regulatory Affairs (OIRA) in the Office of Management and Budget will
                review all significant rules. OIRA has determined that this rule is not
                significant.
                 Executive Order 13563 reaffirms the principles of E.O. 12866 while
                calling for improvements in the nation's regulatory system to promote
                predictability, to reduce uncertainty, and to use the best, most
                innovative, and least burdensome tools for achieving regulatory ends.
                The executive order directs agencies to consider regulatory approaches
                that reduce burdens and maintain flexibility and freedom of choice for
                the public where these approaches are relevant, feasible, and
                consistent with regulatory objectives. E.O. 13563 emphasizes further
                that regulations must be based on the best available science and that
                the rulemaking process must allow for public participation and an open
                exchange of ideas. We have developed this rule in a manner consistent
                with these requirements.
                Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
                 Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
                as amended by the Small Business Regulatory Enforcement Fairness Act of
                1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
                publish a notice of rulemaking for any proposed or final rule, it must
                prepare and make available for public comment a regulatory flexibility
                analysis that describes the effects of the rule on small entities
                (i.e., small businesses, small organizations, and small government
                jurisdictions). However, no regulatory flexibility analysis is required
                if the head of the agency certifies the rule will not have a
                significant economic impact on a substantial number of small entities.
                The SBREFA amended the RFA to require Federal agencies to provide a
                certification statement of the factual basis for certifying that the
                rule will not have a significant economic impact on a substantial
                number of small entities.
                 According to the Small Business Administration, small entities
                include small organizations such as independent nonprofit
                organizations; small governmental jurisdictions, including school
                boards and city and town governments that serve fewer than 50,000
                residents; and small businesses (13 CFR 121.201). Small businesses
                include manufacturing and mining concerns with fewer than 500
                [[Page 53603]]
                employees, wholesale trade entities with fewer than 100 employees,
                retail and service businesses with less than $5 million in annual
                sales, general and heavy construction businesses with less than $27.5
                million in annual business, special trade contractors doing less than
                $11.5 million in annual business, and agricultural businesses with
                annual sales less than $750,000. To determine if potential economic
                impacts to these small entities are significant, we considered the
                types of activities that might trigger regulatory impacts under this
                designation as well as types of project modifications that may result.
                In general, the term ``significant economic impact'' is meant to apply
                to a typical small business firm's business operations.
                 Under the RFA, as amended, and as understood in light of recent
                court decisions, Federal agencies are required to evaluate the
                potential incremental impacts of rulemaking on those entities directly
                regulated by the rulemaking itself; in other words, the RFA does not
                require agencies to evaluate the potential impacts to indirectly
                regulated entities. The regulatory mechanism through which critical
                habitat protections are realized is section 7 of the Act, which
                requires Federal agencies, in consultation with the Service, to ensure
                that any action authorized, funded, or carried out by the agency is not
                likely to destroy or adversely modify critical habitat. Therefore,
                under section 7, only Federal action agencies are directly subject to
                the specific regulatory requirement (avoiding destruction and adverse
                modification) imposed by critical habitat designation. Consequently, it
                is our position that only Federal action agencies would be directly
                regulated if we adopt the proposed critical habitat designation. There
                is no requirement under the RFA to evaluate the potential impacts to
                entities not directly regulated. Moreover, Federal agencies are not
                small entities. Therefore, because no small entities would be directly
                regulated by this rulemaking, the Service certifies that, if made final
                as proposed, the proposed critical habitat designation will not have a
                significant economic impact on a substantial number of small entities.
                 In summary, we have considered whether the proposed designation
                would result in a significant economic impact on a substantial number
                of small entities. For the above reasons and based on currently
                available information, we certify that, if made final, the proposed
                critical habitat designation will not have a significant economic
                impact on a substantial number of small business entities. Therefore,
                an initial regulatory flexibility analysis is not required.
                Energy Supply, Distribution, or Use--Executive Order 13211
                 Executive Order 13211 (Actions Concerning Regulations That
                Significantly Affect Energy Supply, Distribution, or Use) requires
                agencies to prepare Statements of Energy Effects when undertaking
                certain actions. In our draft economic analysis, we did not find that
                the designation of this proposed critical habitat would significantly
                affect energy supplies, distribution, or use. Therefore, this action is
                not a significant energy action, and no Statement of Energy Effects is
                required.
                Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
                 In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
                et seq.), we make the following finding:
                 (1) This proposed rule would not produce a Federal mandate. In
                general, a Federal mandate is a provision in legislation, statute, or
                regulation that would impose an enforceable duty upon State, local, or
                Tribal governments, or the private sector, and includes both ``Federal
                intergovernmental mandates'' and ``Federal private sector mandates.''
                These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
                intergovernmental mandate'' includes a regulation that ``would impose
                an enforceable duty upon State, local, or Tribal governments'' with two
                exceptions. It excludes ``a condition of Federal assistance.'' It also
                excludes ``a duty arising from participation in a voluntary Federal
                program,'' unless the regulation ``relates to a then-existing Federal
                program under which $500,000,000 or more is provided annually to State,
                local, and Tribal governments under entitlement authority,'' if the
                provision would ``increase the stringency of conditions of assistance''
                or ``place caps upon, or otherwise decrease, the Federal Government's
                responsibility to provide funding,'' and the State, local, or Tribal
                governments ``lack authority'' to adjust accordingly. At the time of
                enactment, these entitlement programs were: Medicaid; Aid to Families
                with Dependent Children work programs; Child Nutrition; Food Stamps;
                Social Services Block Grants; Vocational Rehabilitation State Grants;
                Foster Care, Adoption Assistance, and Independent Living; Family
                Support Welfare Services; and Child Support Enforcement. ``Federal
                private sector mandate'' includes a regulation that ``would impose an
                enforceable duty upon the private sector, except (i) a condition of
                Federal assistance or (ii) a duty arising from participation in a
                voluntary Federal program.''
                 The designation of critical habitat does not impose a legally
                binding duty on non-Federal Government entities or private parties.
                Under the Act, the only regulatory effect is that Federal agencies must
                ensure that their actions do not destroy or adversely modify critical
                habitat under section 7. 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. Furthermore, to the
                extent that non-Federal entities are indirectly impacted because they
                receive Federal assistance or participate in a voluntary Federal aid
                program, the Unfunded Mandates Reform Act would not apply, nor would
                critical habitat shift the costs of the large entitlement programs
                listed above onto State governments.
                 (2) We do not believe that this rule would significantly or
                uniquely affect small governments because it will not produce a Federal
                mandate of $100 million or greater in any year; that is, it is not a
                ``significant regulatory action'' under the Unfunded Mandates Reform
                Act. The designation of critical habitat imposes no obligations on
                State or local governments. By definition, Federal agencies are not
                considered small entities, although the activities they fund or permit
                may be proposed or carried out by small entities. Consequently, we do
                not believe that the proposed critical habitat designation would
                significantly or uniquely affect small government entities. As such, a
                Small Government Agency Plan is not required.
                Takings--Executive Order 12630
                 In accordance with E.O. 12630 (Government Actions and Interference
                with Constitutionally Protected Private Property Rights), we have
                analyzed the potential takings implications of designating critical
                habitat for Pe[ntilde]asco least chipmunk in a takings implications
                assessment. The Act does not authorize the Service to regulate private
                actions on private lands or confiscate private property as a result of
                critical habitat designation. Designation of critical habitat does not
                affect land ownership, or establish any closures or restrictions on use
                of or access to the designated areas. Furthermore, the
                [[Page 53604]]
                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 Pe[ntilde]asco 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.
                Federalism--Executive 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 7(a)(2) 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.
                Civil Justice Reform--Executive 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 3(a) and 3(b)(2) 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 Pe[ntilde]asco least chipmunk, under the Tenth
                Circuit ruling in Catron County Board of 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 President's 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
                Interior's 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 Pe[ntilde]asco 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 Pe[ntilde]asco 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 Service's Species Assessment Team and the New
                Mexico Ecological Services Field Office.
                [[Page 53605]]
                List of Subjects in 50 CFR Part 17
                 Endangered and threatened species, Exports, Imports, Reporting and
                recordkeeping requirements, Transportation.
                Proposed Regulation Promulgation
                 Accordingly, we propose to amend part 17, subchapter B of chapter
                I, title 50 of the Code of Federal Regulations, as set forth below:
                PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
                0
                1. The authority citation for part 17 continues to read as follows:
                 Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
                otherwise noted.
                0
                2. Amend Sec. 17.11(h), the List of Endangered and Threatened
                Wildlife, by adding an entry for ``Chipmunk, Pe[ntilde]asco least'' in
                alphabetical order under MAMMALS to read as set forth below:
                Sec. 17.11 Endangered and threatened wildlife.
                * * * * *
                 (h) * * *
                ----------------------------------------------------------------------------------------------------------------
                 Listing citations and
                 Common name Scientific name Where listed Status applicable rules
                ----------------------------------------------------------------------------------------------------------------
                 Mammals
                
                 * * * * * * *
                Chipmunk, Pe[ntilde]asco least.. Neotamias minimus Wherever found.... E [Federal Register
                 atristriatus. citation when
                 published as a final
                 rule]; 50 CFR
                 17.95(a).\CH\
                
                 * * * * * * *
                ----------------------------------------------------------------------------------------------------------------
                0
                3. Amend Sec. 17.95(a) by adding an entry for ``Pe[ntilde]asco Least
                Chipmunk (Neotamias minimus atristriatus)'' after the entry for
                ``Woodland Caribou (Rangifer tarandus caribou), Southern Mountain
                Distinct Population Segment (DPS),'' to read as set forth below:
                Sec. 17.95 Critical habitat--fish and wildlife.
                 (a) * * *
                Pe[ntilde]asco Least Chipmunk (Neotamias Minimus Atristriatus)
                 (1) Critical habitat units are depicted for Lincoln and Otero
                Counties, New Mexico, on the maps in this entry.
                 (2) Within these areas, the physical or biological features
                essential to the conservation of Pe[ntilde]asco least chipmunk consist
                of the following components:
                 (i) Areas within the White Mountains:
                 (A) Between elevations of 2,500-3,597 meters (8,200-11,800 feet);
                 (B) That contain rock outcrops or talus; and
                 (C) That are subalpine Thurber's fescue meadow/grassland
                communities found within openings of spruce-fir forest, above tree line
                in the glacial cirque, containing tall bunchgrasses, including
                Thurber's fescue, sedges, flowering forbs, and shrubs.
                 (ii) Forage, including species of Asteraceae, flowers and fruits of
                gooseberry (Ribes spp), wild strawberry (Fragaria spp.), pinyon (Pinus
                edulis) nuts, Gambel oak (Quercus gambelii) acorns, and insects.
                 (3) Critical habitat does not include manmade structures (such as
                buildings, aqueducts, runways, roads, and other paved areas) and the
                land on which they are located existing within the legal boundaries on
                [EFFECTIVE DATE OF THE FINAL RULE].
                 (4) Critical habitat map units. Data layers defining map units were
                created using publicly available geospatial vegetation data for the
                Lincoln National Forest, 30-meter digital elevation models from the
                National Elevation Dataset, and 3-band county mosaics obtained from the
                National Agricultural Imagery Program. The maps in this entry, as
                modified by any accompanying regulatory text, establish the boundaries
                of the critical habitat designation. The coordinates or plot points or
                both on which each map is based are available to the public at https://www.regulations.gov at Docket No. FWS-R2-ES-2020-0042 and at the field
                office responsible for this designation. You may obtain field office
                location information by contacting one of the Service regional offices,
                the addresses of which are listed at 50 CFR 2.2.
                 (5) Note: Index map follows:
                BILLING CODE 4333-15-P
                [[Page 53606]]
                [GRAPHIC] [TIFF OMITTED] TP28SE21.009
                 (6) Unit 1: Nogal Peak.
                 (i) Unit 1 consists of approximately 393 hectares (972 acres) of
                subalpine habitat within the Lincoln National Forest Wilderness Area
                and is considered occupied. Elevation ranges approximately 2,570-3,031
                meters (8,432-9,944 feet) above mean sea level.
                [[Page 53607]]
                 (ii) Map of Unit 1 follows:
                 [GRAPHIC] [TIFF OMITTED] TP28SE21.010
                
                 (7) Unit 2: Crest Trail.
                 (i) Unit 2 consists of approximately 910 hectares (2,249 acres) of
                subalpine habitat located within the Lincoln National Forest Wilderness
                Area and is considered unoccupied. Elevation ranges approximately
                2,621-3,292 meters (8,599-10,800 feet) above mean sea level.
                [[Page 53608]]
                 (ii) Map of Unit 2 follows:
                 [GRAPHIC] [TIFF OMITTED] TP28SE21.011
                
                 (8) Unit 3: Sierra Blanca.
                 (i) Unit 3 includes approximately 1,357 hectares (3,353 acres) of
                subalpine habitat located within the Lincoln National Forest, the
                Lincoln National Forest Wilderness Area, and Mescalero Apache Tribal
                lands and is considered occupied. The portion of Unit 3 located on
                Mescalero Tribal lands is approximately 581 hectares (1,435 acres).
                Elevation ranges approximately 2,763-3,638 meters (9,065-11,936 feet)
                above mean sea level.
                 (ii) Map of Unit 3 follows:
                [[Page 53609]]
                [GRAPHIC] [TIFF OMITTED] TP28SE21.012
                * * * * *
                Martha Williams,
                Principal Deputy Director, Exercising the Delegated Authority of the
                Director, U.S. Fish and Wildlife Service.
                [FR Doc. 2021-20934 Filed 9-27-21; 8:45 am]
                BILLING CODE 4333-15-C
                

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