[Federal Register Volume 86, Number 82 (Friday, April 30, 2021)]
[Rules and Regulations]
[Pages 22876-22882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09108]
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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.
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SUMMARY: We, the U.S. Fish and Wildlife Service (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. This second delay is necessary to avoid placing undue
risk on the conservation of northern spotted owl caused by allowing
exclusions from its designated critical habitat to go into effect while
the Service prepares a revision or withdrawal of the January 15, 2021,
rule through additional rulemaking to address apparent defects; this
second delay is also necessary to avoid confusion and disruption with
Federal agencies in the implementation of section 7 of the Endangered
Species Act while the Service initiates and completes the rulemaking
process for revising or withdrawing the January 15, 2021, rule.
DATES: As of April 29, 2021, the effective date of the final rule
published January 15, 2021, at 86 FR 4820, and delayed on March 1, 2021
(86 FR 11892), is further delayed until December 15, 2021.
[[Page 22877]]
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R1-ES-2020-0050 and at http://www.fws.gov/oregonfwo. Comments and materials we received on previous
documents related to this rulemaking action, as well as some of the
supporting documentation we used in preparing this rule, are available
for public inspection at http://www.regulations.gov under Docket No.
FWS-R1-ES-2020-0050.
FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor, U.S.
Fish and Wildlife Service, Portland, OR 97030, 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:
Background
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. Most of the areas designated as critical habitat
are located on Federal lands, with a small amount of State and local
government lands included in the designation. No areas of private land
were designated. On August 11, 2020, we proposed a rule (85 FR 48487;
referred to hereafter as the August 11, 2020, Proposed Rule) to exclude
204,653 acres (82,820 hectares) in 15 counties in Oregon from that
revised designated critical habitat pursuant to the Secretary of the
Interior's discretionary authority under section 4(b)(2) of the
Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et
seq.), and we solicited public comment on that proposed rule. On
January 15, 2021, we published a final rule (86 FR 4820) (referred to
hereafter as the January 15, 2021, Final Rule) revising the designated
critical habitat for the northern spotted owl by excluding
approximately 3,472,064 acres (1,405,094 hectares) in 14 counties in
Washington, 21 counties in Oregon, and 10 counties in California. Of
the over 3.4 million acres excluded, about 20,000 acres (8,094
hectares) are Federal Indian lands, recently transferred by
congressional action to be held in trust for two federally recognized
Tribes, and the remainder are Federal lands managed by either the
Bureau of Land Management (BLM) or the U.S. Forest Service (USFS).
On March 1, 2021, we issued a final rule delaying the effective
date of the January 15, 2021, Final Rule from March 16, 2021, to April
30, 2021, to allow for review of issues of fact, law, and policy raised
by that final rule, and we opened a 30-day public comment period on the
January 15, 2021, Final Rule, as well as on the potential for an
additional delay of the effective date so as to avoid adverse
consequences to conservation of the species and to Federal agencies if
the exclusions were to go into effect during that rulemaking process
(86 FR 11892; referred to hereafter as the March 1, 2021, Delay Rule).
On March 5, a lawsuit was filed challenging the March 1, 2021, Delay
Rule, American Forest Resources Council et al. v. Williams et al., No.
1:21-cv-00601 (D.D.C. March 5, 2021) (AFRC). Plaintiffs in that case
assert that our March 1, 2021, Delay Rule extending the effective date
of the January 15, 2021, Final Rule violates the Administrative
Procedure Act (APA; 5 U.S.C. 551 et seq.) and the Oregon and California
Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 (O&C Act; 43
U.S.C. 2601 et seq.). The AFRC plaintiffs seek implementation of the
January 15, 2021, Final Rule without further delay. As of this writing,
the AFRC plaintiffs have filed a motion for summary judgment, and the
Government filed a brief in opposition on April 15, 2021. On March 23,
2021, a lawsuit was filed challenging the January 15, 2021, Final Rule,
Audubon Society of Portland, et al. v. United States Fish and Wildlife
Service, No. 3:21-cv-00443 (D. Or., March 23, 2021) (Audubon).
Plaintiffs in that case assert that the January 15, 2021, Final Rule
violates both the APA and the ESA. The Audubon plaintiffs request the
court vacate the January 15, 2021, Final Rule. As of this writing,
briefing has not commenced in that case.
On March 31, 2021, the comment period we opened in our March 1,
2021, Delay Rule closed. Based on the comments received, and other new
information, we are extending the effective date of the January 15,
2021, Final Rule from April 30, 2021, until December 15, 2021.
Public Comments
As described in our March 1, 2021, Delay Rule, the January 15,
2021, Final Rule raised several questions of law, fact, and policy. We
invited public comment on those questions, as well as comments on the
impact of the delay of the effective date and any further delay that
might be considered. We received a total of 2,237 comments through the
comment period that ended March 31, 2021. The comments addressed
matters of substantive law and policy under the ESA, as well as under
the APA and other laws. These comments raise new issues and, in part,
suggest legitimate bases for the litigation challenging the January 15,
2021, Final Rule. During this second period of delay, we will conduct
factual and legal research, and address and respond to the substantive
comments specific to those issues in a subsequent Federal Register
publication. We intend to prepare a notice of proposed rulemaking to
revise or withdraw the January 15, 2021, Final Rule to address apparent
defects that the public comments raised. This includes publishing a
proposed rule and seeking public comment. In this rule delaying the
effective date, we summarize and respond to the substantive comments
that specifically relate to the delay of the January 15, 2021, Final
Rule's effective date.
In this section, we identify potential defects in the January 15,
2021, Final Rule based on the comments received and summarize the
comments received generally. Comments regarding the impact of delaying
the January 15, 2021, Final Rule further, or implementing it now, are
addressed in greater detail below under Discussion, as those comments
have the most bearing on this final rule.
We received comments that identified potential defects in the
January 15, 2021, Final Rule--both procedurally and substantively. In
addition, since the publication of the January 15, 2021, Final Rule,
our reexamination has identified potential shortcomings of the Final
Rule. Potential defects and shortcomings of the January 15, 2021, Final
Rule include:
1. That the January 15, 2021, Final Rule was not a logical
outgrowth of the proposed rule because among other things it excluded
substantially more acres and included new rationales for the exclusions
not discussed in the proposed rule.
2. That the January 15, 2021, Final Rule did not utilize the best
scientific data available, including from our recent finding that the
species warrants reclassification as endangered--that is, that the
species is in danger of extinction throughout all or a significant
portion of its range--among other new information.
3. That the January 15, 2021, Final Rule failed to address the
economic benefits of maintaining the designated critical habitat
particularly as to environmental benefits to communities, and thus
failed to identify or address the adverse economic costs of the
exclusions on these resources.
4. That the January 15, 2021, Final Rule relied upon a large-scale
barred owl removal program that is not yet in place and too uncertain
to rely on.
5. That the January 15, 2021, Final Rule relied upon a
determination by the
[[Page 22878]]
Secretary that the exclusions will not result in the extinction of the
northern spotted owl, and that the determination was not supported by
information in the record and is otherwise inconsistent with the ESA.
6. That the January 15, 2021, Final Rule inadequately explained a
change in our prior findings that areas designated on lands managed
under the O&C Act were essential to the conservation of the species.
Some commenters supported the January 15, 2021, Final Rule, opposed
the delay in its effective date, and sought no further delay in the
exclusions from critical habitat. The American Forest Resource Council
(AFRC); Lewis and Skamania Counties, Washington; and Douglas County,
Oregon, commented that the delay of the effective date is unlawful in
that we did not provide the public with notice and an opportunity to
comment. These commenters also assert that the Service did not provide
a sound rationale for applying the ``good cause'' exceptions to
providing notice and the opportunity to comment and for making the
Delay Rule effective immediately rather than in 30 days pursuant to 5
U.S.C. 553(b)(3)(B) and (d)(3), respectively. Further, they commented
that the Delay Rule fails to address the effects to regulated industry
and the public, including AFRC, and delays providing the economic,
safety, and environmental benefits of the January 15, 2021, Final Rule.
Specifically, AFRC stated that the delay violates the sustained-yield
mandate of the O&C Act by placing those areas substantially off-limits
for timber harvesting and interferes with fuels reduction projects,
thereby increasing the risk of loss of life, property, and habitat.
These commenters disputed that a ``logical outgrowth'' problem exists
with the January 15, 2021, Final Rule and stated that the changes in
that final rule would have been reasonably anticipated by our request
for comments in our August 11, 2020, Proposed Rule on additional
exclusions we should consider. Additionally, they commented that the
January 15, 2021, Final Rule should go into effect immediately because
the 2012 final rule was illegal and irrational, citing concerns
regarding economic impacts to communities dependent on timber harvest
receipts and their assertion that areas of non-habitat were designated
in the 2012 final rule.
The Confederated Tribe of the Coos, Lower Umpqua, and Siuslaw
Indians (CTCLUSI) supported the revised designation that excluded
Tribal lands. The Tribe expressed concern that a delay of the effective
date will cause the Tribe to alter its forest management planning
efforts due to the current designation of critical habitat on lands
conveyed to Tribal management in 2020 from BLM. The CTCLUSI expressed
that this action threatens its self-governance and Tribal sovereignty
and has economic impacts on the Tribe. The CTCLUSI and Bureau of Indian
Affairs expressed that Secretarial Order 3206 should be followed and
that it supports the exclusion of the tribally managed lands.
Conservation groups, on the other hand, urged the Service to delay
implementation of the January 15, 2021, Final Rule for 240 days until
the Service revised or eliminated the rule entirely. In general, most
of the comments opposed the exclusions from designated critical habitat
determined in the January 15, 2021, Final Rule. Commenters raised
concerns about whether the most-current scientific information provides
a basis for excluding 3.4 million acres of critical habitat especially
given our recent finding that the species warrants reclassification as
endangered--that is, that the species is in danger of extinction
throughout all or a significant portion of its range. Other comments
opposing the exclusions in the January 15, 2021, Final Rule identified
concerns given the increased role of the invasive barred owl in
competing for the same habitat with northern spotted owls and the
impact of recent wildfires in further diminishing available habitat
generally. These commenters asserted that the Service should be
considering expanding the areas designated as critical habitat, not
reducing them. Additionally, commenters expressed concerns about
relying on a barred owl removal program to support the exclusions when
a large-scale barred owl removal program is likely not feasible;
therefore, habitat protections and other recovery actions should remain
a priority. One commenter stated that the phrase in the January 15,
2021, Final Rule that ``the Secretary has not concluded that these
exclusions will result in the extinction of the species'' is vague,
creates uncertainty, and fails to address the declining population of
northern spotted owls.
In terms of the process for developing the January, 15, 2021, Final
Rule, a few commenters felt the exclusions proposed in the August 11,
2020, Proposed Rule, even though a much smaller and narrower proposal,
gave sufficient notice that the final exclusions could be larger and
could include areas throughout the range of the owl. Many others
strongly disagreed, noting the huge increase in excluded areas, and the
expansion beyond just the original proposal of certain BLM-managed
lands and Tribal lands in Oregon. The Washington Department of Fish and
Wildlife and California Department of Fish and Wildlife also disagreed
with the expanded exclusions and commented that they were not aware
that exclusions might occur within their States. Commenters also noted
that there were entirely new rationales for the final exclusions that
were not included in the August 11, 2020, Proposed Rule, and so they
had no opportunity to comment on these.
Commenters expressed that the Secretary's statement in the January
15, 2021, Final Rule that timber harvest may occur at longer intervals
was speculative and unlikely to occur given current timber harvest
practices. Another commenter expressed concern that the excluded areas
included northern spotted owl core areas and home ranges, particularly
with the BLM Harvest Land Base.
Conservation groups stated that the Service failed to conduct an
economic analysis on the critical habitat revision and consider
potential adverse economic impacts to communities, especially in
relation to the environmental benefits associated with designated
critical habitat, and that the Service instead relied on the 2012
economic analysis. These commenters also stated that the Service erred
in concluding that the benefits of exclusion outweigh the benefits of
inclusion and incorrectly justified its decision in part based on the
O&C Act, noting longstanding Department and Solicitor legal
interpretations that the designation of critical habitat does not
preclude the sustained-yield timber management of O&C lands consistent
with the requirements of the O&C Act (77 FR 72010, December 4, 2012).
These commenters noted the Service's previous conclusions that the O&C
lands and matrix lands significantly contribute to the conservation of
the northern spotted owl, that recovery of the owl cannot be attained
without the O&C lands, and that our modeling showed that not including
many of the matrix lands in the critical habitat network resulted in a
significant increase in the risk of extinction.
Conservation groups stated that the Service's conclusion that it
may exclude any and all areas from a designation up until the point
that doing so would result in the extinction of the species is
inconsistent with the ESA in that this perception ignores the vital
role that critical habitat plays in the recovery and survival of the
species and is not what Congress intended. These commenters
[[Page 22879]]
also stated that the January 15, 2021, Final Rule fails to adopt the
``precautionary principle'' and it does not give the species the
``benefit of the doubt'' as the ESA is designed to do.
Discussion
Based on the comments received to date, we believe there are
sufficient concerns about the merits of the January 15, 2021, Final
Rule, as well as the procedural steps we took to issue it, that warrant
our further consideration and action. In particular, commenters have
asserted that our January 15, 2021, Final Rule failed to consider the
best available science in making the requisite finding that the
exclusions will not result in the extinction of the species. New
information, available after the January 15, 2021, Final Rule was
finalized, suggest this may be the case. As noted in the January 15,
2021, Final Rule, our findings regarding the extinction issue were
summarized in the rule and further described in a memorandum from the
Director to the Secretary (FWS 2021a). That memorandum relied in part
on information requested and received from the Service's field office
in Oregon, which has the first-line responsibility for managing issues
related to the species. The field office, however, upon seeing the
final Director's memo, identified areas where the Director's memo was
inaccurate or unclear in terms of its characterization of the
scientific information and detailed those concerns in a followup memo
(see FWS 2021b). Our concerns represented in that followup memo (FWS
2021b) align with the Service's and Department's Code of Scientific and
Scholarly Conduct (305 DM 3.2; 212 FW 7), which obligates Service staff
to use the ``most appropriate, best available, high quality scientific
and scholarly data and information'' to inform sound decisionmaking.
Given the potential errors in the January 15, 2021, Final Rule, as
well as concerns that the rule's implementation will hasten the decline
of this imperiled species and diminish its prospects for recovery, we
have concluded that the January 15, 2021, Final Rule should not become
effective before our further review and reconsideration is completed
and we have had the opportunity to fully address the issues summarized
herein. As discussed further below, to do otherwise risks the removal
of that habitat in the interim. Giving the benefit of the doubt to the
species when designating critical habitat reflects the
institutionalized caution embedded in the ESA, which gives primacy to
the protection of 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''). Also as discussed below, to allow the
exclusions to become effective while we undertake additional rulemaking
to revise or withdraw them will cause confusion and disruption with
Federal agencies in the ESA section 7(a)(2) consultation process. The
comments expressing concern with the delay in the implementation of the
January 15, 2021, Final Rule focused in particular on the perceived
impacts to timber production from Federal lands and effects that may
flow from that. These commenters assert that the 3.4 million acres of
exclusions were either appropriate or legally required under the O&C
Act, and that further delay will continue to hamper Federal agency
efforts to authorize and implement timber harvest on Federal lands. As
we noted in the January 15, 2021, Final Rule, we acknowledge this
perception of the impact of the critical habitat designation for the
northern spotted owl on timber production. However, as noted in our
January 15, 2021, Final Rule, ``the implementation of critical habitat
occurs within a complex set of factors, including volatility in global
demand for wood products, general timber industry transformation, and
existing regulatory and statutory requirements, among other factors''
(IEc 2020). See our discussion of economic issues in the January 15,
2021, Final Rule (at 86 FR 4825-4828) and in the December 4, 2012,
final critical habitat rule (at 77 FR 71945-71947). Since the species
listing itself influences the impacts to timber production, we
determine the economic effects that result from the critical habit
designation beyond the economic effects that result from listing and
other regulations (50 CFR 17.90(a)). The courts have upheld this
approach, also referred to as an ``incremental impacts analysis,'' to
determine the economic impacts of critical habitat designations (e.g.,
Arizona Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160 (9th Cir.
2010)).
Even with the listing of the northern spotted owl and the
designation of critical habitat on Federal lands, timber continues to
be produced from Federal lands within the areas designated. For
example, between 2013 and 2018, the Service completed section 7
consultations on over 100,000 acres (40,469 hectares) of timber sales
within the critical habitat designation across Washington, Oregon, and
California (USFWS, unpub. data). And, as described in the response to
Comment 21(b) in the January 15, 2021, Final Rule (at 86 FR 4827),
average annual timber harvest on Federal lands in the range of the
northern spotted owl has increased significantly in the years after the
2012 critical habitat designation, when compared with such harvest
during the preceding decade.
In regard to concerns raised about limitations on fuels management
and increased risk of wildfire, in the 2012 critical habitat rule the
Service accounted for the drier provinces and parts of the range and
recognized that forest management needs to be tailored to the forest
type and climatic conditions, including the dry forests in California
and the Eastern Washington Cascades. As part of the critical habitat
rule, the Service expressly encouraged land managers to consider
implementation of active forest management, using ``ecological
forestry'' practices, and to restore natural ecological processes where
they have been disrupted or suppressed (e.g., natural fire regimes).
This flexibility is provided to reduce the potential for adverse
impacts associated with commercial timber harvest when such harvest is
planned within or adjacent to critical habitat and consistent with land
use plans (USDI FWS 2012b: 77 FR 71877, December 4, 2012). The Service
recognizes that land managers have a variety of forest management
goals, including maintaining or improving ecological conditions where
the intent is to provide long-term benefits to forest resiliency and
restore natural forest dynamic processes (USDI FWS 2011, p. III-45).
The Service has consulted on fuels reduction, stand resiliency, and
pine restoration projects in dry forest systems, for example in the
Klamath Province of southern Oregon, that promote ecological
restoration and are expected to reduce future losses of spotted owl
habitat and improve overall forest ecosystem resilience to climate
change. We concluded in these consultations that the actions do not
adversely modify critical habitat. Many of these treatment areas
include reduction in forest canopy to obtain desired silvicultural
outcomes and meet the purpose and need of the project. In sum, the
critical habitat designation supports and encourages active management
of forests to address catastrophic wildfire risk where planned
appropriately and informed by the best available science in order to
protect communities from property losses, restore forest health, and
for the long-term recovery of the owl.
Regarding the impact of a delay on Tribal activities on forest
lands, the Service is available to assist Tribes in
[[Page 22880]]
developing their forest management plans and any related consultation
needs to address management and economic concerns. The Service has been
working with the Tribes to address their concerns since the initial
proposal to exclude areas from the critical habitat designation, and
that has continued through the time of the March 1, 2021, Delay Rule.
The Service is committed to upholding Secretarial Order 3206.
Lastly, with regard to comments received that the failure to
implement the January 15, 2021, Final Rule precludes the BLM and USFS
from implementing their obligations under the O&C Act, as we noted in
the January, 15, 2021, Final Rule, there is ongoing litigation
challenging BLM's management of O&C lands under the 2016 Resource
Management Plans (RMPs) (BLM 2016a, 2016b). One district court has
concluded that the 2016 RMPs (including their consideration of the ESA)
do not conflict with the O&C Act, see Pac. Rivers v. U.S. Bureau of
Land Mgmt., No. 6:16-CV-01598-JR, 2019 WL 1232835 (D. Or. Mar. 15,
2019), aff'd sub nom. Rivers v. Bureau of Land Mgmt., 815 F. App'x. 107
(9th Cir. 2020). In a separate proceeding, the U.S. District Court for
the District of Columbia, in a consolidated set of cases, found that
the BLM 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. Hammond, 422 F. Supp. 3d 184
(D.D.C. 2019). The parties briefed the court on the appropriate remedy,
but the court has not yet issued an order. In the absence of a remedy
order or resolution of any further proceedings in that litigation, we
decline to speculate on the outcome as a reason to implement the
January 15, 2021, Final Rule immediately.
In sum, substantial issues have been raised that our January 15,
2021, Final Rule may be detrimental to the conservation of the northern
spotted owl, a species we recently found warrants reclassifying as an
endangered species in danger of extinction throughout its range. There
are also substantial concerns that we failed to provide the public with
adequate notice and opportunity to review and comment on the extent of,
and reasons for, the change from our proposed exclusion of
approximately 200,000 acres (80,937 hectares) to the approximately 3.4
million acres (1.3 million hectares) excluded by our January 15, 2021,
Final Rule. This additional delay to consider these exclusions and
conduct rulemaking to either revise or withdraw them will not result in
a long-term or irreversible economic impact; timber harvest already
scheduled to occur on BLM and USFS land will continue to proceed as
planned. We are, therefore, further delaying the effective date of the
January 15, 2021, Final Rule that revised the designation of critical
habitat for the northern spotted owl to give us the needed time to
fully consider questions of law, policy, and fact in regard to that
final rule, and allow us to take action to remedy procedural and
substantive defects identified in order to provide for conservation of
the species and avoid undue disruption in the required consultation
process with Federal agencies. The effective date of the January 15,
2021, Final Rule, as modified by the March 1, 2021, Delay Rule (86 FR
11892), was April 30, 2021. With this document, we are delaying the
effective date of the January 15, 2021, Final Rule, until December 15,
2021. During this time, we expect to complete our review and
reconsideration of the January 15, 2021, Final Rule, and to undertake
and complete new notice and comment rulemaking as needed to address the
substantive and procedural questions raised.
We note that the Office of Management and Budget deemed the January
15, 2021, Final Rule to be economically significant under Executive
Order 12866. However, we do not consider this delay rule to be
economically significant.
Good Cause Under the Administrative Procedure Act
In our March 1, 2021, Delay Rule, we invited public comments on the
impact of the initial delay of the January 15, 2021, Final Rule. We
also expressly sought comment on whether we should extend the effective
date of the January 15, 2021, Final Rule beyond April 30, 2021, and, if
so, for how long and what, if any, the impacts of that delay would be.
In addition, we identified the legal authority under which we
promulgated it, and we described the subjects and issues involved. As a
result, ``[f]ormal labels aside, the [March 1, 2021, Delay rule]
contained all of the elements of a notice of proposed rulemaking as
required by the APA'' (Little Sisters of the Poor Saints Peter and Paul
Home v. Pennsylvania, 140 S. Ct. 2367, 2384 (2020)). We have now
considered and addressed in this final rule the comments regarding the
initial delay and the potential impacts of an additional delay. As a
result, seeking additional public comment on the delay until December
15, 2021, would be unnecessary and duplicative, and is not required by
the APA. It is, therefore, not necessary to assess whether this second
delay in the effective date of the January 15, 2015, Final Rule meets
the ``good cause'' exceptions to notice and comment rulemaking of the
APA. Nonetheless, out of an abundance of caution, we again review our
action here against the good-cause exception. We also in this section
evaluate whether we have good cause to make this final rule effective
immediately, rather than make it effective in 30 days.
Our implementation of this action extending the effective date of
the January 15, 2021, Final Rule from April, 30, 2021, to December 15,
2021, without opportunity for further public comment, effective
immediately upon publication in the Federal Register, is consistent
with the good-cause exceptions provided in the APA. Pursuant to 5
U.S.C. 553(b)(3)(B) and (d)(3), we have determined that good cause
exists to forgo the requirements to provide additional prior notice and
an opportunity for public comment on this delay in the effective date
of the January 15, 2021, Final Rule, and to make this action announcing
the delay effective immediately upon publication.
Under the totality of the circumstances presented here, notice and
comment would be unnecessary, as well as impracticable and contrary to
the public interest, because the public has had notice of and
opportunity to comment on further extension of the effective date of
the January 15, 2021, Final Rule, and taking the time to provide for
additional public notice and comment would thwart the conservation
purposes of the ESA, create confusion and disruption for Federal
agencies in implementing the ESA section 7(a)(2) consultation process,
and prevent the Service from performing its functions.
First, additional notice and comment is unnecessary. As noted
above, our March 1, 2021, Delay Rule expressly provided notice that we
might further delay the effective date, and also sought public comment
on that possibility. We received public comments on that question and
considered them in this final rule. As also noted above, this is all
that the APA requires. But even if this process did not constitute
technical compliance with the APA, and a showing of good cause were
required, good cause exists here because further public notice and
additional comment is unnecessary given the opportunity provided
pursuant to the March 1, 2021, Delay Rule.
Second, additional notice and comment is also impractical and
contrary to the public interest. As noted
[[Page 22881]]
in our March 1, 2021, Delay Rule (86 FR 11892), we were reviewing
whether the determinations made in the January 15, 2021, Final Rule
were a ``logical outgrowth'' of the August 11, 2020, Proposed Rule. In
addition, there has been substantial litigation in the past on critical
habitat designations for this species, and we have now in fact been
sued regarding the legality of the January 15, 2021, Final Rule. As
identified above, we conclude that there are likely procedural and
substantive defects in 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 undertaking efforts to address and rectify the defects in the
January 15, 2021, Final Rule. 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 ESA to provide required
protections for listed species. 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 proceed to undertake (or to authorize others to undertake)
activities that would remove that habitat before the Service could
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 January 15, 2021, Final 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 Federal agency activities.
In designated critical habitat for the northern spotted owl in
Washington, Oregon, and California, at least 35 separate section 7
consultations have been completed or are underway for ongoing and
proposed Federal actions addressing a range of activities--including
both forest management to improve fire resiliency and oversee
commercial timber harvest. If the 3.4 million acres (1.3 million
hectares) were excluded from the critical habitat designation on April
30, 2021, those Federal agencies would no longer be required to address
whether the activities destroy or adversely modify the excluded
critical habitat and could proceed with such activities. If the
Service, following its review of the January 15, 2021, Final Rule,
again modifies the exclusions or withdraws them through rulemaking,
these Federal agencies would need to reinitiate section 7 consultation
to determine if their ongoing activities impact the revised critical
habitat, and would be constrained by section 7(d) of the ESA from
certain ``irreversible or irretrievable commitment of resources''
during the consultation period. This kind of uncertainty in knowing
what areas are within or outside of the critical habitat designation
creates project delays that can be avoided by maintaining the status
quo of the current designated habitat while the Service reconsiders the
January 15, 2021, exclusions.
The ESA does not require exclusion of areas from critical habitat--
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 January
15, 2021, Final Rule excluding areas from critical habitat for the
northern spotted owl does not delay compliance with a mandate of the
ESA. Delaying the effective date of the January 15, 2021, Final Rule,
which purported to exercise that discretionary section 4(b)(2)
authority, simply preserves the status quo while we undertake
additional review and undertake additional actions as needed 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
fact that notice and comment have now occurred with regard to a delay
in the effective date of the January 15, 2021, Final Rule; the now-
pending judicial review; our concerns about substantive defects in the
rule and the associated potential to affect the Service's execution of
its statutory functions by having an impact on ESA-listed species; the
likelihood of a ``logical outgrowth'' deficiency in the January 15,
2021, Final Rule; and concerns expressed by affected States regarding a
lack of opportunity to comment, among other issues--indicate that there
is good cause to forgo notice and comment procedures because it is
unnecessary, impracticable, and contrary to the public interest for the
Service to provide another notice and opportunity to comment on a
further extension of the effective date 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's legislative history indicates that the
purpose of the notice requirement at 5 U.S.C. 553(d)(3) is to ``afford
persons affected a reasonable time to prepare for the effective date of
a rule or rules or to take any other action which the issuance of rules
may prompt.'' S. Rep. No. 752, 79th Cong., 1st Sess. 201 (1946) and
H.R. Rep. No. 1980, 79th Cong., 2nd Sess. 259 (1946). 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.
Delaying the effective date provides certainty for the Federal agencies
involved in ESA section 7 consultations during the delay period while
the Service addresses issues with the January 15, 2021, Final Rule. The
Service is committed to ensuring transparency and providing certainty
in the adequacy and finality of the January 15, 2021, Final Rule. Thus,
it would be contrary to the public interest for the January 15, 2021,
Final Rule to go into effect, with its accompanying changes in analyses
of impacts, while the January 15, 2021, Final Rule remains under review
and subject to revision or withdrawal. The potential for fluctuating
between the presence and absence of a requirement for Federal agencies
to consult would lead to uncertainty and confusion and a potential and
unnecessary increase in administrative costs.
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 April 30, 2021. That effective
date would create the same issues as discussed in the preceding
[[Page 22882]]
paragraphs, i.e., thwart the conservation purposes of the ESA, create
confusion and disruption for Federal agencies in implementing the ESA
section 7(a)(2) consultation process, and prevent the Service from
performing its functions under the Act.
In the March 1, 2021, Delay Rule, the Service anticipated that a
second delay might be necessary (see 86 FR 11892). For the reasons
stated above, we 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 December 15, 2021.
References Cited
A list of the references cited in this document may be found at
http://www.regulations.gov under Docket No. FWS-R1-ES-2020-0050.
Authority
The authorities for this action are 5 U.S.C. 553 and 16 U.S.C.
1531-1544 unless otherwise noted.
Martha Williams
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-09108 Filed 4-29-21; 8:45 am]
BILLING CODE 4333-15-P