Endangered and Threatened Wildlife and Plants; Endangered Species Status for the Peñasco Least Chipmunk and Designation of Critical Habitat, 53583-53609 [2021-20934]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[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