Federal Register, Volume 85 Issue 155 (Tuesday, August 11, 2020) 2020 Federal Register, 85 FR 48487-48499; Centralized Library: U.S. Fish and Wildlife Service -

[Federal Register Volume 85, Number 155 (Tuesday, August 11, 2020)]
[Proposed Rules]
[Pages 48487-48499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15675]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2020-0050; FF09E21000 FXES11110900000 201]
RIN 1018-BF01

Endangered and Threatened Wildlife and Plants; Revised
Designation of Critical Habitat for the Northern Spotted Owl

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
revise the designated critical habitat for the northern spotted owl
(Strix occidentalis caurina) under the Endangered Species Act of 1973,
as amended (Act). After a review of the best available scientific and
commercial information, we propose to revise the species' designated
critical habitat by newly excluding approximately 204,653 acres (82,820
hectares) in Benton, Clackamas, Coos, Curry, Douglas, Jackson,
Josephine, Klamath, Lane, Lincoln, Multnomah, Polk, Tillamook,
Washington, and Yamhill Counties, Oregon, under section 4(b)(2) of the
Act. These proposed exclusions are based on new information that has
become available since our 2012 revised critical habitat designation
for the northern spotted owl. This proposed rule focuses only on new
exclusions under section 4(b)(2) of the Act in response to a stipulated
settlement agreement; we are not proposing any other revisions to the
northern spotted owl's critical habitat designation.

DATES: We will accept comments received or postmarked on or before
October 13, 2020. 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 a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by September 25, 2020.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal:
http://www.regulations.gov. In the Search box, enter FWS-R1-ES-
2020-0050, which is the docket number for this rulemaking. 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 Now!''
(2) By hard copy: Submit by U.S. mail: Public Comments Processing,
Attn: FWS-R1-ES-2020-0050, 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 http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the proposed critical
habitat exclusions, maps and the coordinates or plot points or both of
the subject areas are included in the administrative record and are
available at http://www.fws.gov/oregonfwo and at http://www.regulations.gov under Docket No. FWS-R1-ES-2020-0050.

FOR FURTHER INFORMATION CONTACT: Paul Henson, Ph.D., State Supervisor,
U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600
SE 98th Avenue, Portland, OR 97266; telephone 503-231-6179. Persons who
use a telecommunications device for the deaf (TDD) may call the Federal
Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Requested

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.

[[Page 48488]]

Therefore, we request comments or information from other 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 reasons why we should or should not exclude areas as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information regarding:
(a) The related benefits of including or excluding specific areas;
(b) Whether the benefits of exclusion outweigh those of inclusion;
and
(c) Whether the exclusion will not result in the extinction of the
species.
(2) Any probable economic, national security, or other relevant
impacts of the designation on areas that are being considered for
exclusion.
(3) Any additional areas, including Federal lands, that should be
considered for exclusion under section 4(b)(2) of the Act and any
probable economic, national security, or other relevant impacts of
excluding those areas.
(4) Specifically, any National Forest System lands managed by the
U.S. Department of Agriculture's (USDA's) Forest Service (USFS) that
should be considered for exclusion under section 4(b)(2) of the Act and
any probable economic, national security, or other relevant impacts of
excluding those areas.
(5) Any significant new information or analysis concerning economic
impacts that we should consider in the balancing of the benefits of
inclusion versus the benefits of exclusion in the final determination.
(6) Whether and how on-going litigation challenging the Bureau of
Land Management's (BLM) management of Oregon and California Railroad
Revested Lands (O&C lands) should be addressed in our final rule. See
the BLM Harvest Land Base section below for more information regarding
this litigation.
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 final determination, as section 4(b)(2) of the Act directs
that designations or revisions to critical habitat must be made on the
basis of the best scientific data available and after taking into
consideration the economic impact, the impact on national security, and
any other relevant impact, of specifying any particular area as
critical habitat.
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 http://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 http://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 http://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final revision may differ from this
proposal. Based on the new information we receive (and any comments on
that new information), our final revision may not exclude all areas
proposed. Or, it may exclude additional areas if we find that the
benefits of exclusion outweigh the benefits of inclusion or may remove
areas if we find that the area does not meet the definition of
``critical habitat.'' Any changes made in the final rule should be of a
type that could have been reasonably anticipated by the public, and
therefore a logical outgrowth of the proposal. Changes in a final
revision would be reasonably anticipated if: (1) We base them on the
best scientific and commercial data available and take into
consideration the relevant impacts; (2) we articulate a rational
connection between the facts found and the conclusions made, including
why we changed our conclusion; and (3) we base removal of any areas on
a determination either that the area does not meet the definition of
``critical habitat'' or that the benefits of excluding the area will
outweigh the benefits of including it in the designation. 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.

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
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

On December 4, 2012, we published in the Federal Register (77 FR
71876) a final rule designating revised critical habitat for the
northern spotted owl and announcing the availability of the associated
economic analysis and environmental assessment. For additional
information on previous Federal actions concerning the northern spotted
owl, refer to that December 4, 2012, final rule.
In 2013, the December 4, 2012, revised critical habitat designation
was challenged in court in Carpenters Industrial Council et al. v.
Bernhardt et al., No. 13-361-RJL (D.D.C) (now retitled Pacific
Northwest Regional Council of Carpenters et al. v. Bernhardt et al.
with the substitution of named parties). In 2015, the district court
ruled that the plaintiffs lacked standing. The D.C. Circuit reversed
and remanded, and the case remained pending before the district court.
In December of 2019, the plaintiffs filed a motion with the
district court seeking permission to file a supplemental brief
regarding the United States Supreme Court's decision in Weyerhaeuser
Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018) concerning the
designation of critical habitat for the dusky gopher frog. The
plaintiffs asserted that supplemental briefing on Weyerhaeuser would
benefit the district court's consideration of two of their arguments
regarding the northern spotted owl critical habitat designation: That
the Service unlawfully designated areas that are not northern spotted
owl habitat, and that the Service failed to weigh the designation's
economic impacts and consider other relevant factors when excluding
lands under section 4(b)(2).
On April 13, 2020, we entered into a stipulated settlement
agreement resolving the litigation. The settlement agreement was
approved and ordered by

[[Page 48489]]

the court on April 26, 2020. Under the terms of the settlement
agreement, the Service agreed to submit a proposed revised critical
habitat rule to the Federal Register that identifies proposed
exclusions under section 4(b)(2) of the Act (16 U.S.C. 1531 et seq.) by
July 15, 2020. This proposed rule meets the stipulations of the
settlement agreement.

Critical Habitat

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).
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 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. 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, the Service
identifies 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 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 when 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.
In our December 4, 2012, final rule (77 FR 71876), we determined
that all units and subunits met the Act's definition of being within
the geographical area occupied by the species at the time of listing.
Our determination was based on the northern spotted owl's wide-ranging
use of the landscape, and the distribution of known owl sites at the
time of listing across the units and subunits designated as critical
habitat. Each of these units and subunits consist of habitat occupied
by the species at the time of listing. We recognize that, subsequent to
listing, some areas within these units and subunits have at times not
been used by individual northern spotted owls due to displacement by
competition with the nonnative barred owl. However, we anticipate many
of these areas will be used by individual northern spotted owls in the
future, in some cases due to restoration actions.
At a finer scale within the occupied geographic area, within some
of these units and subunits, the forest mosaic contains some areas of
younger forest that may not have been occupied at the time of listing.
These areas were included in the designation to provide connectivity
(physical and biological feature (PBF) (4)--dispersal habitat) between
occupied areas, room for population growth, and the ability to provide
sufficient suitable habitat on the landscape for the owl in the face of
natural disturbance regimes (e.g., fire). These areas are essential for
the conservation of the species.
Our December 4, 2012, final rule (77 FR 71876) includes four PBFs
(formerly referred to as primary constituent elements, or PCEs)
specific to the northern spotted owl. In summary, PBF (1) is forest
types that may be in early-, mid-, or late-seral stages and that
support the northern spotted owl across

[[Page 48490]]

its geographical range; PBF (2) is nesting and roosting habitat; PBF
(3) is foraging habitat; and PBF (4) is dispersal habitat (see 77 FR
71876, December 4, 2012, pp. 77 FR 72051-72052, for a full description
of the PBFs). In areas occupied at the time of listing, not all of the
designated critical habitat contains all of the PBFs, because not all
life-history functions require all of the PBFs. Some subunits contain
all PBFs and support multiple life processes, while some subunits may
contain only PBFs necessary to support the species' particular use of
those subunits as habitat. However, all of the areas occupied at the
time of listing and designated as critical habitat support at least PBF
(1), in conjunction with at least one other PBF. Thus, PBF (1) must
always occur in concert with at least one additional PBF (PBF 2, 3, or
4) (77 FR 71876, December 4, 2012, p. 77 FR 71908).
When determining critical habitat boundaries for the December 4,
2012, final rule, we made every effort to avoid including areas that
lack physical or biological features for the northern spotted owl. Due
to the limitations of mapping at fine scales, we were often not able to
segregate these areas from areas shown as critical habitat on maps
suitable in scale for publication within the Code of Federal
Regulations. The following types of areas are not critical habitat
because they cannot support northern spotted owl habitat, and are not
included in the 2012 designation: Meadows and grasslands, oak and aspen
(Populus spp.) woodlands, and manmade structures (such as buildings,
aqueducts, runways, roads, and other paved areas), and the land on
which they are located. Thus, we included regulatory text in the
December 4, 2012, final rule clarifying that these areas were not
included in the designation even if within the mapped boundaries of
critical habitat (77 FR 71876, December 4, 2012, p. 77 FR 72052).
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 determining which areas should be designated as critical
habitat, our primary source of information is the status analysis in
the listing rule and other 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. Critical habitat designated at a particular point in time
may not include all of the 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.
The proposed exclusions described in this document do not change
the majority of the December 4, 2012, final rule. The only sections
that would change with this proposed revision are Table 8 in the
Exclusions discussion (77 FR 71876, December 4, 2012, pp. 77 FR 71948-
71949), the subunit maps related to the proposed exclusions (77 FR
71876, December 4, 2012, pp. 77 FR 72057-72058, 72062, 72065-72067),
and the index map of Oregon (77 FR 71876, December 4, 2012, p. 77 FR
72054). The regulations concerning critical habitat have been revised
and updated since 2012 (81 FR 7414, February 11, 2016; 84 FR 45020,
August 27, 2019). Our December 4, 2012, designation of critical habitat
for the northern spotted owl and the revisions proposed in this rule
are in accordance with the requirements of the revised critical habitat
regulations (81 FR 7414, February 11, 2016; 84 FR 45020, August 27,
2019), with the exception of the use of the term ``primary constituent
element'' (PCE) in the December 4, 2012, final rule; here, we use the
term ``physical or biological feature'' (PBF), as noted above, in
accordance with the updated critical habitat regulations. The primary
constituent elements (PCEs) are, however, the physical and biological
features (PBFs) as described in the revised regulations: They are
essential to the conservation of the species, and they may require
special management considerations or protection.

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 any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he or she
determines that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless he
determines, 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 the determination to exclude a
particular area, the statute on its face, as well as 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.
The first sentence in section 4(b)(2) of the Act requires that we
take into consideration the economic, national security, or other
relevant impacts of designating any particular area as critical
habitat. We describe below the process that we undertook for taking
into consideration each category of

[[Page 48491]]

impacts and our analyses of the relevant impacts.

Consideration of Economic Impacts

We did not exclude areas from our December 4, 2012, final critical
habitat designation (77 FR 71876) based on economic impacts, and we are
not now proposing to exclude any areas solely on the basis of economic
impacts. Refer to the December 4, 2012, rule (77 FR 71876) for a
description of the purpose and process of evaluating the economic
impacts that may result from a designation of critical habitat. The
final economic analysis of the 2012 critical habitat designation for
the northern spotted owl found the incremental effects of the
designation to be relatively small due to the extensive conservation
measures already in place for the species because of its listed status
under the Act and because of the measures provided under the Northwest
Forest Plan (NWFP) (USDA USFS and U.S. Department of the Interior's
Bureau of Land Management (BLM) 1994) and other conservation programs
(IEc 2012, pp. 4-32, 4-37). Thus, we concluded that the future probable
incremental economic impacts were not likely to exceed $100 million in
any single year, and impacts that are concentrated in any geographic
area or sector were not likely as a result of designating critical
habitat for the northern spotted owl. The incremental effects included:
(1) An increased workload for action agencies and the Service to
conduct re-initiated consultations for ongoing actions in newly
designated critical habitat (areas proposed for designation that were
not already included within the extant designation); (2) the cost to
action agencies of including an analysis of the effects to critical
habitat for new projects occurring in occupied areas of designated
critical habitat; and (3) potential project alterations in unoccupied
critical habitat.
Although we considered the incremental impact of administrative
costs to Federal agencies associated with consulting on critical
habitat under section 7 of the Act, economic impacts are not the
primary reason for the exclusions we are proposing in this rule. See
the December 4, 2012, final rule for a summary of the final economic
analysis and our consideration of economic impacts (77 FR 71876, pp.
71878, 71945-71947, 72046-72048). We have reviewed the 2012 final
economic analysis (IEc 2012) and determined that because we are only
proposing to exclude (i.e., remove) additional areas from critical
habitat, the economic impact will be further reduced and a new analysis
is not necessary. Because the entire 2012 designation did not reach the
threshold for economic significance under Executive Order 12866, these
exclusions, which represent a reduction in the overall cost, also do
not meet the threshold.
During the development of a final revised designation, we will
consider any additional economic impact information we receive during
the public comment period (see DATES), and therefore, additional areas
not considered in this proposed rule may be excluded from the final
critical habitat designation under section 4(b)(2) of the Act and our
implementing regulations at 50 CFR 424.19.

Consideration of Impacts on National Security

We did not exclude areas from our December 4, 2012, revised
critical habitat designation based on impacts on national security, but
we did exempt Joint Base Lewis-McChord lands based on the integrated
natural resources management plan (INRMP) under section 4(a)(3) of the
Act (77 FR 71876, pp. 71944-71945). In this document, we are not
proposing to exclude any areas from the critical habitat designation on
the basis of impacts 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 424.19.

Consideration of Other Relevant Impacts

When identifying the benefits of inclusion of an area as designated
critical habitat, we primarily consider the additional regulatory
benefits that that area would receive due to the protection from
destruction or adverse modification as a result of actions with a
Federal nexus (that is, an activity or program authorized, funded, or
carried out in whole or in part by a Federal agency), the educational
benefits of mapping essential habitat for recovery of the listed
species, and any benefits that may result from a designation due to
State or Federal laws that may apply to critical habitat. When
considering the benefits of exclusion, we consider, among other things,
whether exclusion of a specific area is likely to result in
conservation, or in the continuation, strengthening, or encouragement
of partnerships.
In the case of the northern spotted owl, the benefits of including
an area as designated critical habitat include public awareness of the
presence of northern spotted owls and the importance of habitat
protection, and, where a Federal nexus exists, increased habitat
protection for northern spotted owls through the Act's section 7(a)(2)
mandate that Federal agencies insure that any action they authorize,
fund, or carry out is not likely to result in the destruction or
adverse modification of critical habitat. Additionally, continued
implementation of an ongoing management plan for the area that provides
conservation equal to or greater than a critical habitat designation
would reduce the benefits of including that specific area in the
critical habitat designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical or biological features;
whether there is a reasonable expectation that the conservation
management strategies, and actions contained in a management plan, will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation under section 4(b)(2) of the Act.
The final decision on whether to exclude any areas under section
4(b)(2) will be based on the best scientific data available at the time
of the final designation, including information that we obtain during
the comment period.
Based on any information provided by entities seeking exclusion, as
well as any additional public comments we receive, we will evaluate
whether certain lands in the critical habitat designation are
appropriate for exclusion from the designation under

[[Page 48492]]

section 4(b)(2) of the Act. If the analysis indicates that the benefits
of excluding lands from the designation outweigh the benefits of
designating those lands as critical habitat, then the Secretary may
exercise his discretion to exclude the lands from the designation.

Proposed Exclusions

We are proposing to exclude the following areas under section
4(b)(2) of the Act from the critical habitat designation for the
northern spotted owl. Table 1, below, identifies the specific critical
habitat units from the December 4, 2012, final rule (77 FR 71876),
which is codified in title 50 of the Code of Federal Regulations (CFR)
at Sec. 17.95(b), that we propose to exclude, at least in part; the
approximate areas (ac, ha) of lands involved; and a brief summary of
the rationale for the area's proposed exclusion. The Table 8 Addendum
that follows displays this same information but in the format used in
Table 8 in the December 4, 2012, final rule (77 FR 71876, pp. 77 FR
71948-71949).

Table 1--Areas Proposed for Exclusion by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of critical Areas proposed Rationale for
Unit Specific area habitat, in acres for exclusion, in proposed exclusion
(hectares) acres (hectares)
----------------------------------------------------------------------------------------------------------------
1................. NCO 4................... 179,745 (72,740) 1,838 (744) BLM Harvest Land
Base.
1................. NCO 5................... 142,937 (57,845) 8,774 (3,551) BLM Harvest Land
Base.
2................. ORC 1................... 110,657 (44,781) 1,279 (518) BLM Harvest Land
Base.
2................. ORC 2................... 261,405 (105,787) 2,946 (1,192) BLM Harvest Land
Base.
2................. ORC 3................... 203,681 (82,427) 4,345 (1,758) BLM Harvest Land
Base.
2................. ORC 5................... 176,905 (71,591) 14,987 (6,065) BLM Harvest Land
Base.
2................. ORC 6................... 81,900 (33,144) 9,862 (3,991) BLM Harvest Land Base/
Tribal.
6................. WCS 1................... 92,586 (37,468) 880 (356) BLM Harvest Land
Base.
6................. WCS 2................... 150,105 (60,745) 1,082 (438) BLM Harvest Land
Base.
6................. WCS 3................... 319,736 (129,393) 1,922 (779) BLM Harvest Land
Base.
6................. WCS 4................... 379,130 (153,429) 6 (2) BLM Harvest Land
Base.
6................. WCS 5................... 356,415 (144,236) 2 (<1) BLM Harvest Land
Base.
6................. WCS 6................... 99,558 (40,290) 18,529 (7,498) BLM Harvest Land
Base.
8................. ECS 1................... 127,801 (51,719) 16,610 (6,722) BLM Harvest Land
Base.
8................. ECS 2................... 66,086 (26,744) 2,379 (963) BLM Harvest Land
Base.
9................. KLW 1................... 147,326 (59,621) 11,058 (4,475) BLM Harvest Land
Base.
9................. KLW 2................... 148,929 (60,674) <1 (<1) BLM Harvest Land
Base.
9................. KLW 3................... 143,862 (58,219) 1,655 (670) BLM Harvest Land
Base.
9................. KLW 4................... 158,299 (64,061) 785 (318) BLM Harvest Land
Base.
9................. KLW 5................... 31,085 (12,580) <1 (<1) BLM Harvest Land
Base.
10................ KLE 1................... 242,338 (98,071) 28 (11) BLM Harvest Land
Base.
10................ KLE 2................... 101,942 (41,255) 33,764 (13,663) BLM Harvest Land Base/
Tribal.
10................ KLE 3................... 111,410 (45,086) 48,295 (19,544) BLM Harvest Land
Base.
10................ KLE 4................... 254,442 (102,969) 1 (<1) BLM Harvest Land
Base.
10................ KLE 5................... 38,283 (15,493) 12,232 (4,950) BLM Harvest Land
Base.
10................ KLE 6................... 167,849 (67,926) 11,393 (4,610) BLM Harvest Land
Base.
----------------------------------------------------------------------------------------------------------------

Table 8 Addendum--Additional Lands Proposed for Exclusion From the Designation of Critical Habitat Under Section
4(b)(2) of the Act
----------------------------------------------------------------------------------------------------------------
Critical habitat Land owner/
Type of agreement unit State agency Acres Hectares
----------------------------------------------------------------------------------------------------------------
Resource Management Plan..... NCO............... OR.......... BLM Harvest 10,612 4,294
Land Base.
ORC............... OR.......... BLM Harvest 27,845 11,268
Land Base.
WCS............... OR.......... BLM Harvest 22,420 9,073
Land Base.
ECS............... OR.......... BLM Harvest 18,989 7,684
Land Base.
KLW............... OR.......... BLM Harvest 13,498 5,462
Land Base.
KLE............... OR.......... BLM Harvest 91,112 36,871
Land Base.
Tribal lands................. ORC............... OR.......... CTCLUSI \1\.... 5,575 2,256
KLE............... OR.......... CCBUTI \2\..... 14,602 5,909
----------------------------------------------------------------------------------
Total additional lands .................. ............ ............... 204,653 82,820
proposed for exclusion
under section 4(b)(2) of
the Act.
----------------------------------------------------------------------------------------------------------------
\1\ CTCLUSI is the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians.
\2\ CCBUTI is the Cow Creek Band of Umpqua Tribe of Indians.

We specifically solicit comments on the inclusion or exclusion of
these areas from the critical habitat designation for the northern
spotted owl (77 FR 71876; December 4, 2012), codified at 50 CFR
17.95(b). These proposed exclusions are based on new information that
has become available since the December 4, 2012, critical habitat
designation for the northern spotted owl, including the Bureau of Land
Management's (BLM's) 2016 revision to its resource management plans
(RMPs) for western Oregon (BLM 2016a, b) and the Western Oregon Tribal
Fairness Act (Pub. L.

[[Page 48493]]

115-103). In the paragraphs below, we provide a detailed analysis of
our consideration of these lands for exclusion under section 4(b)(2) of
the Act.

Exclusions Based on 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 (SHAs), or candidate conservation
agreements with assurances (CCAAs), or whether there are other
conservation agreements and partnerships that would be encouraged by
designation of, or exclusion from, critical habitat. In addition, we
consider any Tribal forest management plans (FMPs) and partnerships and
consider the government-to-government relationship of the United States
with Tribes. We also consider any social impacts that might occur
because of the designation.
Tribal Lands
Several Executive Orders, Secretarial Orders, and departmental
policies address how we engage 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) (``Services''), Secretarial
Order 3206, ``American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act'' (June 5, 1997) (S.O.
3206), affirms that Tribes may participate fully in the listing
process, including designation of critical habitat. The appendix to
S.O. 3206 also states: ``In keeping with the trust responsibility, [the
Services] shall consult with the affected Indian tribe(s) when
considering the designation of critical habitat in an area that may
impact tribal trust resources, tribally-owned fee lands, or the
exercise of tribal rights. 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
comments 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.
In our December 4, 2012, final rule (77 FR 71876), we prioritized
areas for critical habitat designation by looking first to Federal
lands, followed by State, private, and Tribal lands. No Tribal lands
were designated in our final rule because we found that we could
achieve the conservation of the northern spotted owl by limiting the
designation to other lands. However, on January 8, 2018, the Western
Oregon Tribal Fairness Act (Pub. L. 115-103) was passed by Congress and
signed by the President. This act mandated that certain lands managed
by BLM be taken into trust by the United States for the benefit of the
Cow Creek Band of Umpqua Tribe of Indians (CCBUTI) and the Confederated
Tribes of Coos, Lower Umpqua, and Siuslaw Indians (CTCLUSI). In January
2020, BLM released its decision record (BLM 2020) transferring
management authority of approximately 17,800 acres (7,203 hectares) to
CCBUTI and 14,700 acres (5,949 hectares) to CTCLUSI. Of the transferred
lands, 20,177 acres (8,165 hectares) are located within designated
critical habitat for the northern spotted owl. We have considered this
new information and are now proposing these lands for exclusion under
section 4(b)(2) of the Act, as explained below.
Of the lands transferred in trust to the CCBUTI, 14,602 acres
(5,909 hectares) are located within currently designated critical
habitat. These lands will be managed under the tribe's Forest Resource
Management Plan (CCBUTI 2019) using a ``continuous forest management''
approach that provides for a continued supply of timber, a steady
stream of income, and a reduction in the risk of wildfire and disease.
The Tribal land within the Cow Creek conveyance is in the Klamath
Physiographic Province, an area disproportionally impacted by fire. The
objectives in the Cow Creek FMP addresses fire risk and disease
concerns to alleviate the risk of wildfire. Of the lands transferred to
the CTCLUSI, 5,575 acres (2,256 hectares) are located within the
critical habitat designation. The tribe is developing a management plan
for these recently transferred lands (Andringa 2020, pers. comm.). We
will continue to provide technical assistance to the tribes on the
conservation of endangered and threatened species and on the
development and implementation of their forest management plans;
however, these plans are not the basis of our proposal to exclude these
lands from the critical habitat designation.
In accordance with S.O. 3206 and other directives, we believe that
fish, wildlife, and other natural resources on Tribal lands may be more
appropriately managed under Tribal authorities, policies, and programs
than through Federal regulation where Tribal management addresses the
conservation needs of listed species. Supporting Tribal management
strengthens the government-to-government relationship essential to
achieving our mutual goals of managing for healthy ecosystems upon
which the viability of endangered and threatened species populations
depend. Additionally, the Tribal lands proposed for exclusion represent
only 0.21 percent of the current critical habitat designation. Although
these lands contribute to the conservation of the northern spotted owl,
we believe the conservation needs of the northern spotted owl can be
achieved by limiting the designation to the other lands in the critical
habitat designation. We also find that the benefit of our partnerships
with these Tribal governments and our acknowledgment of Tribal
sovereignty over managing these lands by excluding them from the
critical habitat designation outweigh the conservation value of
including these 20,177 acres (8,165 hectares) in the designation.
Federal Lands
O&C Lands--In general, our proposed exclusions of critical habitat
for the northern spotted owl are focused on the Oregon and California
Railroad Revested Lands (O&C lands), particularly those areas that have
been identified primarily for commercial timber harvest under Federal
resource management plans. The O&C lands were

[[Page 48494]]

revested to the Federal Government under the Chamberlin-Ferris Act of
1916 (39 Stat. 218). The Oregon and California Revested Lands Sustained
Yield Management Act of 1937 (O&C Act; Pub. L. 75-405) addresses the
management of O&C lands. The O&C Act identifies the primary use of
revested timberlands for permanent forest production. These lands occur
in western Oregon in a checkerboard pattern intermingled with private
land across 18 counties. Most of these lands (82 percent) are
administered by BLM (FWS 2019, p. 1) pursuant to its resource
management plans (RMPs). BLM's RMPs identify certain revested
timberlands for commercial timber harvest. The opening statement of the
O&C Act provides that these lands be managed ``for permanent forest
production, and the timber thereon shall be sold, cut, and removed in
conformity with the principle of sustained yield for the purpose of
providing a permanent source of timber supply, protecting watersheds,
regulating stream flow, and contributing to the economic stability of
local communities and industries, and providing recreational
facilities.'' The counties where O&C lands are located participate in a
revenue sharing program with the Federal Government based on commercial
receipts (e.g., income from commercial timber harvest) generated on
these Federal lands.
Since the mid-1970s, scientists and land managers have recognized
the importance of forests located on O&C lands to the conservation of
the northern spotted owl and have attempted to reconcile this
conservation need with other land uses (Thomas et al. 1990, entire).
Starting in 1977, BLM worked closely with scientists and other State
and Federal agencies to implement northern spotted owl conservation
measures on O&C lands. Over the ensuing decades, the northern spotted
owl was listed as a threatened species under the Act, critical habitat
was designated (57 FR 1796; January 15, 1992) and revised two times (73
FR 47326, August 13, 2008; 77 FR 71876, December 4, 2012) on portions
of the O&C lands, and a recovery plan for the owl was completed (73 FR
29471, May 21, 2008, p. 73 FR 29472) and revised (76 FR 38575; July 1,
2011). These and other scientific reviews consistently recognized the
need for large portions of the O&C forest to be managed for northern
spotted owl conservation while also allowing for other uses of these
lands.
BLM Harvest Land Base--Based on new information available since the
publication of the December 4, 2012, revised critical habitat
designation (77 FR 71876), we are proposing to exclude from critical
habitat 184,476 acres (74,654 hectares) of BLM lands where programmed
timber harvest is planned to occur under the revised RMPs (BLM 2016a,
b), i.e., the ``Harvest Land Base'' that we describe in detail further
below. Approximately 172,430 acres (69,779 hectares) of this Harvest
Land Base is O&C lands.
In 2011, the Service revised the northern spotted owl recovery plan
(see 76 FR 38575; July 1, 2011), and the revised plan recommended
``continued application of the reserve network of the NWFP until the
2008 designated spotted owl critical habitat is revised and/or the land
management agencies amend their land management plans taking into
account the guidance in this Revised Recovery Plan'' (USFWS 2011, p.
II-3). On December 4, 2012, the Service published in the Federal
Register (77 FR 71876) a final rule revising the northern spotted owl
critical habitat designation, and in 2016, BLM revised its RMPs for
western Oregon, resulting in two separate plans (BLM 2016a, b). BLM's
2016 revision of its RMPs fully considered the 2011 recovery plan
recommendation. These two BLM plans, the Northwestern Oregon and
Coastal Oregon Record of Decision and Resource Management Plan (BLM
2016a) and the Southwestern Oregon Record of Decision and Resource
Management Plan (BLM 2016b), address all or part of six BLM districts
across western Oregon.
The RMPs provide direction for the management of approximately 2.5
million acres (1 million hectares) of BLM-administered lands, for the
purposes of producing a sustained yield of timber, contributing to the
recovery of endangered and threatened species, providing clean water,
restoring fire-adapted ecosystems, and providing for recreation
opportunities (BLM 2016a, p. 20). The management direction provided in
the RMPs is used to develop and implement specific projects and actions
during the life of the plans.
The RMP revisions assigned land use allocations (LUAs) across BLM-
managed lands in western Oregon; the LUAs define areas where specific
activities are allowed, restricted, or excluded. The BLM LUAs include
Late Successional Reserves (LSR), Congressionally Reserved lands (CR),
District Designated Reserves (DD), and Riparian Reserves (RR)
(collectively considered ``reserve'' LUAs) and Eastside Management Area
and Harvest Land Base (HLB) (BLM 2016a, pp. 55-74).
Reserve LUAs (LSR, CR, DD, RR) comprise 74.6 percent (1,847,830
acres (747,790 hectares)) of the acres of BLM land within LUAs (FWS
2016, p. 9). These lands are managed for various purposes, including
preserving wilderness areas, natural areas, and structurally complex
forest; recreation management; maintaining facilities and
infrastructure; some timber harvest and fuels management; and
conserving lands along streams and waterways. Of these lands, 51
percent (948,466 acres (383,830 hectares)) are designated as LSR, 64
percent of which (603,090 acres (244,061 hectares)) are located within
the critical habitat designation for the northern spotted owl (FWS
2016, p. 9). The management objectives on LSRs are designed to promote
older, structurally complex forest and to promote or maintain habitat
for the northern spotted owl and marbled murrelet (Brachyramphus
marmoratus), although some timber harvest of varying intensity is
allowed. The recovery plan for the northern spotted owl relies on the
LSR network as the foundation for northern spotted owl recovery on
Federal lands (FWS 2011, p. III-41). The Service found that the
anticipated level of timber harvest in LSRs under these RMPs was not
likely to jeopardize the species or destroy or adversely modify
critical habitat (FWS 2016, pp. 700-703).
The HLB allocation comprises 19 percent (469,215 acres (189,884
hectares)) of the overall LUAs and is where the majority of programmed
timber harvest will occur (FWS 2016, p. 9; BLM 2016a, pp. 59-63). Of
these acres, 39 percent (184,476 acres (74,655 hectares)) are located
within the critical habitat designation for the northern spotted owl.
Over 90 percent of these acres (172,430 acres (69,779 hectares)) are
located on O&C lands. Under the management direction for the HLB,
timber harvest intensity varies based on the sub-allocation (moderate
intensity timber area, light intensity timber area, or uneven-aged
timber area) within the HLB (BLM 2016a, pp. 59-63).
The management direction specific to the northern spotted owl (BLM
2016a, p. 100) applies to all LUAs designated in the RMPs. This
direction provides for the management of habitat to facilitate movement
and survival between and through large blocks of northern spotted owl
nesting and roosting habitat.
We completed a programmatic section 7 consultation on the RMPs in
2016, under the assumption that BLM will implement actions consistent
with the RMPs over an analytical timeframe of 50 years (FWS 2016, p.
2). This approach allowed for the broad-scale evaluation of BLM's
program to ensure that the management direction and objectives of the
program are consistent with the

[[Page 48495]]

conservation of listed species, while also providing a reliable
mechanism for site-specific consultation at the stepped-down, project-
level scale. The adequacy of this approach for the conservation of
listed species is further sustained by the requirement for the action
agency to reinitiate consultation under certain circumstances.
Reinitiation of the programmatic section 7 consultation may occur
at any time during the course of program implementation if: (1) The
amount or extent of incidental take is exceeded; (2) new information
reveals that the effects of the action may affect listed species or
critical habitat in a manner or to an extent not previously considered;
(3) if the identified action is subsequently modified in a manner that
causes an effect to the listed species or critical habitat that was not
considered in the biological opinion; or (4) if a new species is listed
or critical habitat designated that may be affected by the identified
action, consistent with our August 27, 2019, final rule revising
portions of our regulations that implement section 7 of the Act (see 84
FR 44976, pp. 84 FR 45017-45018). The biological opinion on the RMPs
also describes some additional specific conditions concerning northern
spotted owl demographics and barred owl management implementation under
which reinitiation of consultation will be necessary (FWS 2016, pp.
703-705).
BLM incorporated key aspects of the recovery plan for the northern
spotted owl into its RMPs, consistent with its authorities and
resources. Important features of BLM's approach include:
Overall impacts to extant northern spotted owls are
minimized. Take of northern spotted owl territorial pairs or resident
singles from timber harvest will be avoided to the greatest possible
extent during the first 5 to 8 years of the RMPs as the barred owl
removal experiment (FWS 2013) is conducted and evaluated. Subsequent
effects to northern spotted owls would be metered out over time in the
HLB and minimized in other land use allocations.
If the barred owl removal experiment leads to a longer-
term barred owl management program, BLM will support such a program on
the lands they manage. Barred owl management would help offset the
adverse effects associated with the RMPs and is expected to result in a
net positive impact on the recovery of northern spotted owls when
considering the overall effect of the RMPs over the next 50 years.
There will be a net increase in suitable habitat for
northern spotted owls during the life of the RMPs due to forest
ingrowth outpacing harvest, and the RMPs contain more reserve acres and
habitat than the NWFP.
As individual projects are proposed under these RMPs, BLM
will consult at the project-specific level with the Service as
necessary, providing assurances that jeopardy and adverse modification
will be avoided and an opportunity to further minimize impacts to
northern spotted owls as on-the-ground actions are designed and
implemented.
BLM will reinitiate section 7 consultation with the
Service if the population projections for the northern spotted owl
described in the biological opinion on the RMPs are not realized within
the timeframes anticipated in the consultation.
For these reasons, as described in its biological opinion issued to
the BLM (FWS 2016, pp. 4-5), the Service expects an overall net
improvement in northern spotted owl populations on BLM lands under the
RMPs, including when taking into account any take or adverse impacts to
northern spotted owls due to timber harvest, fuels management,
recreation, and other activities occurring under the RMPs. Our analysis
of the impacts on the lands within the HLB recognized that while this
LUA was not intended to be relied upon for demographic support of
northern spotted owls, the management direction under the RMPs includes
provisions that would contribute to the further development of late-
successional habitat, including additional critical habitat PBFs, over
time (FWS 2016, p. 553; 77 FR 71876, December 4, 2012, pp. 77 FR 71906-
71907). Although late-successional habitat within the HLB may not
remain on the landscape for the long term, the presence of northern
spotted owl habitat within the HLB in the short term would assist in
northern spotted owl movement (PBF 4) across the landscape and could
potentially provide refugia from barred owls while habitat continues to
mature into more complex habitat and develop additional PBFs over time
in reserved LUAs (FWS 2016, p. 553; 77 FR 71876, December 4, 2012, pp.
77 FR 71906-71907).
The spatial configuration of reserves; the management of those
reserves to retain, promote, and develop northern spotted owl habitat;
and the management and scheduling of timber sales within the HLB are
all expected to provide for northern spotted owl dispersal between
physiographic provinces and between and among large blocks of habitat
designed to support clusters of reproducing northern spotted owls (FWS
2016, p. 698). In particular, BLM refined their preferred alternative
management approach to minimize the creation of strong barriers to
northern spotted owl east-west movement and survival between the Oregon
Coast Range and Oregon Western Cascades physiographic provinces, and
north-south movement and survival between habitat blocks within the
Oregon Coast Range province, by augmenting its allocation to LSRs in
those areas (BLM 2016c, p. 17). Therefore, BLM-planned timber harvest
during the interim period while a barred owl management strategy is
considered is not expected to substantially influence the distribution
of northern spotted owls at the local, action area, or rangewide
scales.
Of the designated critical habitat on BLM-managed lands in western
Oregon addressed by the RMPs, 15 percent of critical habitat is
designated on the HLB and 85 percent is designated on other LUAs. The
HLB portion of the BLM landscape is expected to provide less
contribution to northern spotted owl critical habitat over time, while
the reserve portions of the BLM lands will provide the necessary
contributions for northern spotted owl conservation (FWS 2016, p. 554).
Although the loss of some or all the PBFs within northern spotted owl
critical habitat within the HLB is an adverse effect and cannot be
discounted, as we noted in the 2016 biological opinion on the RMPs (FWS
2016, p. 691), the protection, ingrowth, and further development of
PBFs within northern spotted owl critical habitat in reserve LUAs are
expected to improve the function of all critical habitat units within
the areas covered by the RMPs, and have the additional advantage of
improving critical habitat conditions in areas where barred owl
management is most likely to be implemented. Barred owl management, if
implemented, would be most likely to occur where we anticipate the
future core of the northern spotted owl population to reside and where
critical habitat can provide the greatest value.
Additionally, we noted that the functionality of the critical
habitat network on BLM-managed lands and rangewide was anticipated to
improve, in part as the land management agencies updated their land
management plans to incorporate recommendations of the revised recovery
plan (USFWS 2011, p. II-3). Accordingly, we found in our 2016
biological opinion on the RMPs (FWS 2016, p. 700) that, even with the
projected timber harvest in the HLB, the management direction
implemented under the RMPs is fully consistent with the revised
recovery plan (USFWS 2011) and would not appreciably diminish the
conservation value of, or adversely modify, critical habitat (FWS 2016,
p.

[[Page 48496]]

702). The conservation measures put in place by BLM's 2016 RMPs,
including management direction for the LUAs and commitments to support
barred owl research and management, are expected to result in a net
increase in northern spotted owl conservation compared to the status
quo. Therefore, we find that excluding the HLB acres from the critical
habitat designation, as proposed in this document, would not reduce the
overall conservation of the northern spotted owl and its habitat
provided that the conservation measures in the RMPs are implemented as
planned. We thus find that these exclusions would not result in
extinction of the species.
BLM will continue to rely on the effectiveness monitoring
established under the NWFP for the northern spotted owl and late-
successional and old growth ecosystems. Monitoring will assess status
and trends in northern spotted owl populations and habitat to evaluate
whether the implementation of the RMPs is reversing the downward trend
of populations and maintaining and restoring habitat necessary to
support viable owl populations (BLM 2016a).
In conclusion, the revised BLM RMPs provide for the conservation of
the essential PBFs throughout the reserve LUAs and meters the impacts
to northern spotted owl habitat in the HLB over time while the habitat
conditions in the reserve LUAs improve through ingrowth. Based on our
analysis in the biological opinion on the RMPs (FWS 2016, pp. 700-703)
and the BLM's conclusions in its records of decision (RODs) adopting
the RMPs, the conservation strategies in the RMPs are likely to be
effective. These conservation measures will continue to be in effect
regardless of whether the HLB areas are designated as critical habitat
for the northern spotted owl. As described above, these HLB areas
provide a relatively low level of short-term conservation value.
Retaining them as designated critical habitat, which suggests that they
have a conservation value similar or equal to that of the LSR lands,
may send a confusing message to the public and local land managers.
Also, all Federal actions in these HLB areas that may affect currently
designated critical habitat would require section 7 consultation. These
consultations provide no incremental conservation benefit over what is
already provided for in the RMPs and thus would not be an efficient use
of limited consultation and administrative resources. The benefits of
including HLB areas within critical habitat for the northern spotted
owl are, therefore, limited relative to the conservation value provided
by the RMPs. Additionally, areas within the HLB that are determined to
be occupied by the northern spotted owl under current survey protocols
will still be subject to section 7 consultation to insure that actions
in those areas are not likely to jeopardize the continued existence of
the species. Given these provisions and assurances, in conjunction with
all of the other considerations discussed above, we conclude that the
benefits of including these HLB areas in critical habitat are
relatively negligible.
On the other hand, some appreciable benefit could be realized by
excluding HLB areas from critical habitat. Executive Order 12866
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. Excluding HLB lands from the northern spotted owl critical
habitat designation reduces the burden of additional section 7
consultation for these lands that serve primarily to meet BLM's timber
sale volume objectives. Therefore, excluding these HLB lands from the
critical habitat designation would provide some incremental benefit by
clarifying the primary role of these lands in relation to northern
spotted owl conservation, and by eliminating any unnecessary regulatory
oversight. These benefits of exclusion outweigh the relatively minimal
benefit of retaining these lands as critical habitat.
We note that there is ongoing litigation challenging BLM's
management of O&C lands under the 2016 RMPs. In 2018, a Federal
magistrate judge in the U.S. District Court for the District of Oregon
(D. Or.) issued a Findings and Recommendation that upheld the 2016 RMPs
and rejected plaintiffs' challenge that the plans violated the purposes
listed in the O&C Act (Pacific Rivers v. Bernhardt (No. 6:16-cv-01598-
JR) (November 12, 2018)). The District Court subsequently adopted the
magistrate's Findings and Recommendation, and the U.S. Court of Appeals
for the Ninth Circuit recently affirmed that decision (see Pacific
Rivers v. BLM (No. 19-35384) (Memorandum, May 15, 2020)). In a separate
proceeding, the U.S. District Court for the District of Columbia
(D.D.C.), in a consolidated set of cases, recently found that the RMPs
violate the O&C Act because BLM excluded portions of O&C timberland
from sustained yield harvest (i.e., the BLM allocated some timberlands
to reserves instead of the harvest land base); see, e.g., American
Forest Resource Council et al. v. Steed (No. 16-1599-RJL) (Memorandum
Opinion, November 22, 2019). The parties have briefed the court on the
appropriate remedy, but the court has not yet issued an order.
We considered this information in developing this proposed rule.
This proposed rule is based on the 2016 RMPs as they are, and not as
they may be modified in the future. While the litigation outcomes of
the cases challenging the BLM's management of O&C lands are not certain
and we will not speculate on the ultimate outcomes of the litigation,
we acknowledge the potential for future reductions in the BLM's
reserves and changes in the HLB. As discussed above, in the
consolidated D.D.C. cases, the court has already found that the BLM
violated the O&C Act by excluding portions of O&C timberlands from
sustained yield timber harvest. Consequently, the HLB might change as a
result of this litigation by remedy order of the court either with, or
without, land use planning undertaken by BLM.
National Forest System Lands--We evaluated whether exclusions from
the critical habitat designation under section 4(b)(2) of the Act
should be considered within the relatively small amount of O&C lands
managed as National Forest System lands by USFS. Our preliminary
analysis of potential areas to consider for exclusion revealed small
areas of lower quality interspersed with higher quality habitat
scattered across and imbedded within critical habitat subunits.
Therefore, in coordination with USFS, we did not identify any National
Forest System lands where we believed the benefits of exclusion
outweighed the benefits of inclusion at the critical habitat unit
mapping scale. In other words, our preliminary view is that formally
excluding these lower quality areas from critical habitat would require
significant mapping and analytical effort, and that it is unclear what
economic or other administrative benefit might be derived from this
process. To date, we have found all proposed timber harvest under the
NWFP on National Forest System lands in critical habitat to: (1) Be
compatible with northern spotted owl conservation, and (2) not destroy
or adversely modify critical habitat. Therefore, we believe the ongoing
section 7 consultation processes with USFS under its current land
management plans continue to be the best way to evaluate effects of
USFS actions on critical habitat function. We will continue to work
closely with USFS to address the conservation needs of the northern
spotted owl as the agency updates its various forest plans. We invite
comments specifically

[[Page 48497]]

addressing National Forest System lands and the reasons why we should
or should not exclude habitat on these lands as ``critical habitat''
under section 4(b)(2) of the Act. Comments should address the related
benefits of including or excluding specific areas; whether the benefits
of exclusion outweigh those of inclusion; and whether the exclusion
will not result in the extinction of the species. Additionally,
comments should address any probable economic, national security, or
other relevant impacts of the designation on areas recommended for
consideration for exclusion.
State Lands
We also evaluated whether additional exclusions from the critical
habitat designation under section 4(b)(2) of the Act should be
considered on State lands. In our December 4, 2012, critical habitat
designation (77 FR 71876), we excluded State lands in Washington and
California that were covered by HCPs and other conservation plans. In
Oregon, State agencies are currently working on HCPs that will address
State forest lands in western Oregon, including the Elliott State
Forest (managed by the Oregon Department of State Lands) and other
State forest lands in western Oregon (managed by the Oregon Department
of Forestry).
HCPs necessary in support of incidental take permits under section
10(a)(1)(B) of the Act provide for partnerships with non-Federal
entities to minimize and mitigate impacts to listed species and their
habitat. In some cases, as a result of their commitments in the HCPs,
incidental take permittees agree to provide more conservation of the
species and their habitats on private lands than designation of
critical habitat would provide alone. We place great value on the
partnerships that are developed during the preparation and
implementation of HCPs.
When we undertake a discretionary section 4(b)(2) exclusion
analysis, we consider areas covered by an approved HCP, and generally
exclude such areas from a designation of critical habitat if three
conditions are met:
(1) The permittee is properly implementing the HCP and is expected
to continue to do so for the term of the agreement. An HCP is properly
implemented if the permittee is, and has been, fully implementing the
commitments and provisions in the HCP, implementing agreement, and
permit.
(2) The species for which critical habitat is designated is a
covered species in the HCP, or very similar in its habitat requirements
to a covered species. The recognition that the Service extends to such
an agreement depends on the degree to which the conservation measures
undertaken in the HCP would also protect the habitat features of the
similar species.
(3) The HCP specifically addresses the habitat of the species for
which critical habitat is being designated and meets the conservation
needs of the species in the planning area.
The proposed State forest HCPs will not be completed prior to the
publication of this document; thus, they do not yet fulfill the above
criteria. As a result, we are not proposing additional State lands for
exclusion from the critical habitat designation for the northern
spotted owl. We may revisit consideration of 4(b)(2) exclusions on
State lands when the HCPs have been adopted.

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 believe 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 believe 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. The Office of Information and Regulatory
Affairs has identified this proposed rule as a significant rule.
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 proposed 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 that 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
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 whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this revised designation as well as types

[[Page 48498]]

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 consistent with 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. It follows 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,
this revised critical habitat designation will not have a significant
economic impact on a substantial number of small entities.
Additionally, in this document, we are proposing to remove areas from
the northern spotted owl's critical habitat designation, thus reducing
regulatory impacts for affected Federal agencies.
In summary, we have considered whether the proposed revised
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,
this proposed revised 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.

Executive Order 13771

This proposed rule is expected to be an E.O. 13771 (``Reducing
Regulation and Controlling Regulatory Costs'') (82 FR 9339, February 3,
2017) deregulatory action. The Office of Information and Regulatory
Affairs has identified this as a significant rule under E.O. 12866.

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 economic analysis for the December 4, 2012,
revised critical habitat designation for the northern spotted owl (77
FR 71876), we did not find that the critical habitat designation 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 proposed revised 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 of a
critical habitat designation 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
affected 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 affected by a designation decision
because they receive Federal assistance or participate in a voluntary
Federal aid program, the Unfunded Mandates Reform Act would not apply,
nor would such a decision shift the costs of the large entitlement
programs listed above onto State governments. Again, the proposed
decision here would remove areas from designation.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because we are proposing only
exclusions from the northern spotted owl's critical habitat
designation; we are not proposing to designate additional lands as
critical habitat for the species. Therefore, 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 revising designated
critical habitat for the northern spotted owl 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 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

[[Page 48499]]

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 this
proposed revision of the designation of critical habitat for the
northern spotted owl, and it concludes that, if adopted, this revised
designation of critical habitat does not pose significant takings
implications for lands within or affected by the designation. Again,
the proposed decision here would remove areas from 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. 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. As noted above, the proposed decision here would remove
areas from designation.
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. Further, in this document, we are proposing only
exclusions from the northern spotted owl's critical habitat
designation; we are not proposing to designate additional lands as
critical habitat for the species.

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 would 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 revising
designated critical habitat in accordance with the provisions of the
Act. To assist the public in understanding the habitat needs of the
species, the December 4, 2012, final rule (77 FR 71876) identifies the
elements of physical or biological features essential to the
conservation of the species, and we are not proposing any changes to
those elements in this document. The areas we are proposing for
exclusion from the designated critical habitat are described in this
rule and the maps and coordinates or plot points or both of the subject
areas are included in the administrative record and are available at
http://www.fws.gov/oregonfwo and at http://www.regulations.gov under
Docket No. FWS-R1-ES-2020-0050.

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 (see Catron Cty. Bd. of Comm'rs, New
Mexico v. U.S. Fish & Wildlife Serv., 75 F.3d 1429 (10th Cir. 1996), we
do not need to prepare environmental analyses pursuant to NEPA (42
U.S.C. 4321 et seq.) in connection with 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 in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.
1995).

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. To fulfill our responsibility under
Secretarial Order 3206, we have consulted with the Cow Creek Band of
Umpqua Tribe of Indians (CCBUTI) and the Confederated Tribes of Coos,
Lower Umpqua, and Siuslaw Indians (CTCLUSI), who both manage Tribal
land within the areas designated as critical habitat for the northern
spotted owl. We will continue to work with Tribal entities during the
development of a final rule for the revised designation of critical
habitat for the northern spotted owl.

References Cited

A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov and upon request from the
Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this proposed rule are the staff members of
the Oregon Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Authority: This action is authorized under 16 U.S.C. 1361-1407;
1531-1544; and 4201-4245.

George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-15675 Filed 8-10-20; 8:45 am]
BILLING CODE 4333-15-P