[Federal Register Volume 86, Number 38 (Monday, March 1, 2021)]
[Rules and Regulations]
[Pages 11892-11895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04209]
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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 212]
RIN 1018-BF01
Endangered and Threatened Wildlife and Plants; Revised
Designation of Critical Habitat for the Northern Spotted Owl; Delay of
Effective Date
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule; delay of effective date and request for comments.
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SUMMARY: We, the U.S. Fish and Wildlife Service, are delaying the
effective date of a final rule we published on January 15, 2021,
revising the designation of critical habitat for the northern spotted
owl (Strix occidentalis caurina) under the Endangered Species Act of
1973, as amended (ESA) (January 15, 2021, Final Rule). In addition,
this action opens a 30-day comment period to allow interested parties
to comment on issues of fact, law, and policy raised by that rule and
whether further delay of the effective date is necessary.
DATES: As of March 1, 2021, the effective date of the final rule that
published on January 15, 2021, at 86 FR 4820, is delayed from March 16,
2021, to April 30, 2021.
Comment Period: To be assured consideration, comments must be
received or postmarked by March 31, 2021.
ADDRESSES: You may submit comments using either of the following
methods:
Electronically via the Federal eRulemaking Portal: Please visit
https://www.regulations.gov. In the Search Box, enter FWS-R1-ES-2020-
0050, which is the docket number for this action, and click ``search''
to view the publications associated with the docket folder. Locate the
document with an open comment period and follow the instructions to
submit your comments prior to the close of the comment period.
By hard copy: Submit by U.S. mail to: Public Comments Processing,
Attn: FWS-R1-ES-2020-0050, U.S. Fish and Wildlife Service, MS: JAO/3W,
5275 Leesburg Pike, Falls Church, VA 22041-3803.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov and locate the
docket folder for FWS-R1-ES-2020-0050.
FOR FURTHER INFORMATION CONTACT: Bridget Fahey, Division of
Conservation and Classification, U.S. Fish and Wildlife Service, Falls
Church, VA 22041, telephone 703-358-2172. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal Relay
Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
On January 15, 2021, we published a final rule (86 FR 4820)
revising critical habitat for the northern spotted owl by excluding
additional areas from designation as critical habitat pursuant to the
Secretary of the Interior's authority under section 4(b)(2) of the ESA
(16 U.S.C. 1531 et seq.). On January 20, 2021, the White House issued a
memorandum instructing Federal agencies to consider postponing the
effective date after January 20, 2021, of any rules that have published
in the Federal Register but not yet taken effect, for the purpose of
reviewing any questions of fact, law, and policy the rules may raise
(86 FR 7424; January 28, 2021) (``Regulatory Freeze Memorandum'').
[[Page 11893]]
One of our rules, the revised designation of critical habitat for
the northern spotted owl, was published in the Federal Register but has
not yet taken effect so it is subject to review (86 FR 4820; January
15, 2021). A review of this rule is particularly warranted because of
the considerable change between the proposed rule and the final rule.
Specifically, on August 11, 2020, the Service proposed a rule to
exclude 204,653 acres (82,820 hectares) in 15 counties in Oregon from
the species' designated critical habitat (85 FR 4847; August 11, 2020).
The final rule excludes approximately 3,472,064 acres (1,405,094
hectares) in 14 counties in Washington, 21 counties in Oregon, and 10
counties in California from the species' designated critical habitat
(86 FR 4820; January 15, 2021). The additional areas excluded in the
final rule (more than 3.2 million acres) and the rationale for the
additional exclusions were not presented to the public for notice and
comment. We are considering whether the public had appropriate notice
in the proposed rule such that the determinations made in the final
rule were a ``logical outgrowth'' of the proposed rule. We note that
several members of Congress expressed concerns regarding the additional
exclusions, among other concerns, which they identified in a February
2, 2021, letter to the Inspector General of the Department of the
Interior seeking review of the rule.
We have also received at least two notices of intent to sue from
interested parties regarding allegations of procedural defects (among
other potential defects) with respect to our rulemaking for the final
critical habitat exclusions. The Service has been sued each time it has
issued a final rule regarding critical habitat for the northern spotted
owl. These suits include challenges to the initial designation in 1992
(57 FR 1796; January 15, 1992) (see, e.g., Trinity County Concerned
Citizens v. Babbitt, 1993 WL 650393 (D.D.C. 1993)), a revision in 2008
(73 FR 47326; August 13, 2008) (see Carpenters Industrial Council v.
Kempthorne, No. 1:08-cv-01409 (D.D.C.)), and the revision in 2012 (77
FR 71876; December 4, 2012) (see Pacific Northwest Regional Council of
Carpenters v. Bernhardt, No. 1:13-cv-00361 (D.D.C.)).
In light of the litigation history of northern spotted owl critical
habitat designations, the clear intentions from some parties to file
suit to challenge the January 15, 2021, Final Rule, and other questions
raised, we are reviewing whether the rulemaking was procedurally
adequate. In particular, as noted above, we are reviewing whether the
Final Rule was a ``logical outgrowth'' of the proposal and whether the
public had fair notice and an opportunity to comment on the expansive
change in both location and amount of areas excluded from critical
habitat, as well as the rationale for those changes. Extending the
effective date of the January 15, 2021, Final Rule while the Service
reconsiders it may avoid unnecessary litigation challenging a rule that
may change, which could conserve judicial, public, and agency
resources.
We are, therefore, delaying the effective date of the final rule we
published on January 15, 2021, that revised the designation of critical
habitat for the northern spotted owl under the ESA (86 FR 4820), to
give us time to consider questions of law, policy, and fact in regard
to that final rule. The original effective date of the rule was March
16, 2021; with this document, we are delaying the effective date of the
rule until April 30, 2021.
This 45-day delay of the January 15, 2021, Final Rule--based on the
good cause articulated below--is for the purpose of reviewing any
questions of fact, law, and policy that are raised by that rule as well
as the effect of the delay, consistent with the Regulatory Freeze
Memorandum and OMB Memorandum M-21-14. During this period, we will
continue to gather information to determine whether any further steps
should be undertaken, including whether there is a need to postpone the
effective date further to give us additional time to reconsider the
rule. To that end, we invite the public to submit comment on any issues
of fact, law, or policy raised by the January 15, 2021, Final Rule,
including, without limitation, the following:
(1) In a January 21, 2021, memorandum (OMB M-21-14) addressing
steps agencies should take in response to the Regulatory Freeze
Memorandum in reviewing recently finalized rules, OMB requires agencies
to consider, among other things, whether the rulemaking process was
procedurally adequate, including by taking final action that was a
logical outgrowth of the proposal, and whether interested parties had a
fair opportunity to present contrary facts and arguments. We,
therefore, invite comment on whether you think procedural issues exist
in the January 15, 2021, Final Rule rulemaking process and if so, what
those issues are and what the Service could do to remedy them.
(2) Whether the Service should extend the effective date of the
January 15, 2021, Exclusions Rule beyond April 30, 2021, and, if so,
for how long and what, if any, the impacts of that delay would be.
(3) Whether the Secretary's conclusions and analyses in the January
15, 2021, Final Rule were consistent with the law, and whether the
Secretary properly exercised his discretion under section 4(b)(2) of
the ESA in excluding the areas at issue from critical habitat.
(4) Whether, and with what supporting rationales, the Service
should reconsider, amend, rescind, or allow to go into effect the
January 15, 2021, Final Rule.
II. Good Cause Under the Administrative Procedure Act
Our implementation of this action extending the effective date of
the revisions to the northern spotted owl critical habitat rule from
March 16, 2021, until April 30, 2021, without opportunity for public
comment, effective immediately upon publication in the Federal
Register, is based on the good-cause exception provided in the
Administrative Procedure Act (APA). Pursuant to 5 U.S.C. 553(b)(B) and
(d)(3), we have determined that good cause exists to forgo the
requirements to provide prior notice and an opportunity for public
comment on this 45-day delay in the effective date of the January 15,
2021, Final Rule, and to make this action announcing the delay
effective immediately. Under the totality of the circumstances
presented here, notice and comment would be both impracticable and
contrary to the public interest because taking the time to provide for
public notice and comment would prevent the Service from performing its
functions, create confusion and disruption in the ESA section 7(a)(2)
consultation process, and thwart the conservation purposes of the Act.
As noted above, we are reviewing whether the determinations made in
the final rule were a ``logical outgrowth'' of the proposed rule. In
addition, there has been substantial litigation in the past on critical
habitat designations for this species, and we have already received two
notices of intent to sue to challenge the January 15, 2021, Final Rule.
Our agency's ``due and required'' execution of its functions under the
ESA would be unavoidably prevented if we allow the effective date to be
triggered without the thorough review described above. See S. Doc. No.
248, 79th Cong., 2d Sess. At 200 (1946). That is, if the January 15,
2021, final exclusions from designated critical habitat of more than 3
million acres of northern spotted owl habitat become effective, there
is the potential that we will not have met our obligations under the
Act to provide
[[Page 11894]]
required protections for listed species. See Tennessee Valley Authority
v. Hill, 437 U.S. 153, 174 (1978) (in enacting the ESA, it is ``beyond
doubt that Congress intended endangered species to be afforded the
highest of priorities''). Specifically, once the exclusions become
effective, Federal agencies will no longer be required to consult with
the Service under section 7(a)(2) of the ESA to determine if agency
actions will result in the destruction or adverse modification of that
formerly designated habitat. Federal agencies could thus proceed to
undertake (or to authorize others to undertake) activities that would
remove that habitat before the Service has the opportunity to
reconsider whether those exclusions were appropriate in the first
place. Because the habitat is defined by forested stands, particularly
of older trees, it cannot be replaced for many decades once removed.
Even if the final exclusions rule were to become effective only briefly
such that immediate implementation of habitat-removal activities would
be unlikely or limited, having areas previously designated be excluded,
then reconsidered and potentially included again, would cause confusion
and disruption in the section 7(a)(2) consultation process, again
impeding the Federal agencies from executing their conservation
functions, and also affecting third parties reliant on the Federal
agency activities.
Allowing the January 15, 2021, Final Rule to take effect would also
undermine the citizen-suit procedures established in the statute. The
Act provides that persons alleging a violation must provide 60-day
notice of intent to sue (NOI) prior to filing suit. 16 U.S.C.
1540(g)(2)(C). The purpose of the notice requirement is to provide
agencies with ``an opportunity to review their actions and take
corrective measures if warranted.'' Alliance for the Wild Rockies v.
USDA, 772 F.3d 592, 601 (9th Cir. 2014). As discussed above, we have
received NOIs that, among other things, raise a substantial allegation
of a notice-and-comment defect in the January 15, 2021, Final Rule.
Upon initial review of the NOIs, the Service has concluded that it
needs additional time to review the allegations in the NOIs to
determine whether they have merit. However, notice and comment on this
delay of 45 days would prevent the Service from determining whether
``corrective measures'' are warranted before expiration of the 60-day
period intended for this purpose. We are also considering whether we
may need more time for review, and as noted above, therefore seek
comment on whether we should further extend the effective date and, if
so, how long the further extension should be.
Finally, it is important to recognize that excluding areas from
critical habitat is not required by the ESA--the authority to exclude
particular areas from designations of critical habitat under the second
sentence of section 4(b)(2) of the ESA is in the discretion of the
Secretary. (In contrast, other duties relating to critical habitat are
mandatory: The duty for the Service to designate critical habitat, 16
U.S.C. 1533(a)(3), and the duty of Federal agencies to ensure that
their actions are not likely to result in the destruction or adverse
modification of critical habitat, 16 U.S.C. 1536(a)(2).) Therefore, a
delay in the effective date of the final rule excluding areas from
critical habitat for the northern spotted owl does not delay compliance
with a mandate of the Act. Delaying the effective date of the January
15, 2021, Final Rule, which purported to exercise that discretionary
authority, simply preserves the status quo while we undertake
additional review to ensure compliance with the legal mandates and
conservation purposes of the ESA.
In sum, we find that the totality of the circumstances here--the
history of litigation and newly threatened suits, the potential for a
``logical outgrowth'' problem in the final rule, and the threat to the
Service's execution of its statutory functions, among other issues--
indicate that there is good cause to forgo notice and comment
procedures here because it is impractical and contrary to the public
interest for the Service to provide notice and an opportunity to
comment on an extension of the effective date of March 16, 2021, for
the January 15, 2021, Final Rule.
We also find that there is good cause to make this rule effective
immediately instead of waiting until 30 days after publication for it
to become effective. The APA normally requires this 30-day ``grace
period'' so as to give affected parties time to adjust their behavior
before a final rule takes effect. See, e.g., Riverbend Farms, Inc. v.
Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992). However, the APA provides
an exception to this 30-day grace period for good cause. 5 U.S.C.
553(d). There is good cause to allow this extension of the January 15,
2021, Final Rule's effective date to go into effect immediately because
it preserves the status quo, and there is no change to which parties
would need time to adjust their behavior. Further, if this rule
extending the effective date were itself not to become effective for 30
days, it would mean that the January 15, 2021, Final Rule would go into
effect on March 16, 2021. That would create the same issues as
discussed in the preceding paragraphs, i.e., prevent the Service from
performing its functions, create confusion and disruption in the ESA
section 7(a)(2) consultation process, and thwart the conservation
purposes of the ESA.
We therefore conclude that we have good cause to issue this final
rule, effective immediately, extending the effective date of the
January 15, 2021, Final Rule until April 30, 2021.
The White House memorandum also recommends that, for rules
postponed for further review, agencies consider opening a 30-day
comment period to allow interested parties to provide comments about
issues of fact, law, and policy raised by those rules, and consider any
requests for reconsideration involving such rules. Consistent with this
guidance, this rule provides notice and invites public comments on
issues of fact, law, and policy raised by the rule, whether we should
further extend the effective date, and, if so, how long the further
extension should be. A delay in the effective date and opening of a new
30-day comment period is necessary to ensure that the public has the
opportunity to provide, and the Service is able to consider, additional
comments to fully inform the Service's decisions in light of current
law and policy before the January 15, 2021, Final Rule becomes
effective.
Public Comments
You may submit your comments and materials concerning this action
by one of the methods listed in ADDRESSES. Comments must be submitted
to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the
date specified in DATES. We will not consider mailed comments that are
not postmarked by the date specified in DATES. We will post your entire
comment--including your personal identifying information--on http://www.regulations.gov. If you provide personal identifying information in
your comment, 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. Comments and materials we
receive will be available for public inspection on http://www.regulations.gov.
[[Page 11895]]
Authority
The authorities for this action are 16 U.S.C. 1361-1407; 1531-1544;
and 4201-4245, unless otherwise noted.
Martha Williams,
Senior Advisor to the Secretary, Exercising the Delegated Authority of
the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-04209 Filed 2-26-21; 8:45 am]
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