Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Marbled Murrelet, 44678-44701 [E8-17343]

Download as PDF 44678 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules List of Subjects in 47 CFR Part 73 Television, Television broadcasting. For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.622(i) [Amended] 2. Section 73.622(i), the DTV Table of Allotments under Washington, is amended by adding channel 15 and removing channel 7 at Spokane and by adding channel *7 and removing channel *8 at Spokane. Federal Communications Commission. Clay C. Pendarvis, Associate Chief, Video Division, Media Bureau. [FR Doc. E8–17571 Filed 7–30–08; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS-R1-ES-2008-0079; 92210-1117-0000FY08-B4] RIN 1018-AW18 Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Marbled Murrelet Fish and Wildlife Service, Interior. ACTION: Proposed rule. yshivers on PROD1PC62 with PROPOSALS AGENCY: SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to revise designated critical habitat for marbled murrelet (Brachyramphus marmoratus marmoratus) under the Endangered Species Act of 1973, as amended (Act). On May 24, 1996, we designated 3,887,800 ac (ac) (1,573,340 hectares (ha)) as critical habitat for the marbled murrelet in Washington, Oregon, and California. We are proposing to revise currently designated critical habitat for the marbled murrelet by removing approximately 254,070 ac (102,820 ha) in northern California and Oregon from the 1996 designation, based on new information indicating that these areas do not meet the definition of critical habitat. This action, if adopted in its entirety, would result in a revised designation of approximately 3,633,800 ac (1,470,550 VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 ha) as critical habitat for the marbled murrelet. In this rule, we are further proposing, under the Act, a taxonomic revision of the scientific name of the marbled murrelet from Brachyramphus marmoratus marmoratus to Brachyramphus marmoratus. DATES: We will accept comments received or postmarked on or before September 29, 2008. We must receive requests for public hearings in writing at the address shown in the ADDRESSES section by September 15, 2008. ADDRESSES: You may submit comments by one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • U.S. mail or hand-delivery: Public Comments Processing, Attn: RIN 1018AW18; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. We will not accept e-mail or faxes. We will post all comments on http:// www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information). FOR FURTHER INFORMATION CONTACT: Ken Berg, Field Supervisor, U.S. Fish and Wildlife Service, Western Washington Fish and Wildlife Office, 510 Desmond Drive SE, Suite 102, Lacey, WA 985031273, telephone 360-753-9440, facsimile 360- 753-9008; Paul Henson, Field Supervisor, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th Avenue, Suite 100, Portland, OR 97266, telephone 503-2316179, facsimile 503-231-6195; or Michael Long, Field Supervisor, U.S. Fish and Wildlife Service, Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521, telephone 707822-7201, facsimile 707-822-8411. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339. SUPPLEMENTARY INFORMATION: Public Comments We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we request comments or suggestions on this proposed rule. We particularly seek comments concerning: (1) The reasons why we should or should not revise currently designated critical habitat for the marbled murrelet by removing 254,070 ac (102,820 ha) from the 1996 designation, based on new information that is the best available information indicating that PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 these areas do not meet the definition of critical habitat; (2) Specific information on the amount and distribution of marbled murrelet habitat; (3) Any foreseeable economic, national security, or other potential impacts resulting from the proposed critical habitat revision, and in particular, any impacts on small entities; (4) Our proposal to revise 50 CFR 17.11 to adopt the taxonomic clarification for the marbled murrelet to reflect the change from Brachyramphus marmoratus marmoratus to Brachyramphus marmoratus; and (5) Whether we could improve or modify our approach to revising critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments. You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not accept comments sent by e-mail or fax or to an address not listed in the ADDRESSES section. Finally, we will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in the DATES section. We will post your entire comment— including your personal identifying information—on http:// www.regulations.gov. If you provide 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. 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, or by appointment during normal business hours at the U.S. Fish and Wildlife Service, Western Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Maps of the proposed revised critical habitat are also available on the Internet at http:// www.fws.gov/westwafwo/. Background The final rule designating critical habitat for the marbled murrelet was published in the Federal Register on May 24, 1996 (61 FR 26256), and has been posted under the ‘‘Supporting Documents’’ section for this docket in the Federal eRulemaking Portal: http:// www.regulations.gov at Docket Number FWS-R1-ES-2008-0079. It is our intent to discuss only those topics directly E:\FR\FM\31JYP1.SGM 31JYP1 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules yshivers on PROD1PC62 with PROPOSALS relevant to the proposed revision of critical habitat in this proposed rule. The marbled murrelet is a small seabird of the Alcidae family. The marbled murrelet’s breeding range extends from Bristol Bay, Alaska, south to the Aleutian Archipelago; northeast to Cook Inlet, Kodiak Island, Kenai Peninsula and Prince William Sound; south along the coast through the Alexander Archipelago of Alaska, British Columbia, Washington, and Oregon; to northern Monterey Bay in central California. Birds winter throughout the breeding range and occur in small numbers off southern California. Marbled murrelets spend most of their lives in the marine environment where they forage in nearshore areas and consume a diversity of prey species, including small fish and invertebrates. In their terrestrial environment, the presence of platforms (large branches or deformities) used for nesting is the most important characteristic of their nesting habitat. Marbled murrelet habitat use during the breeding season is positively associated with the presence and abundance of mature and old-growth forests, large core areas of old-growth, low amounts of edge habitat, reduced habitat fragmentation, proximity to the marine environment, and forests that are increasing in stand age and height. Previous Federal Actions For additional information on previous Federal actions concerning marbled murrelet, refer to the final listing rule published in the Federal Register on October 1, 1992 (57 FR 45328), and the final rule designating critical habitat published in the Federal Register on May 24, 1996 (61 FR 26256). In the final critical habitat rule, we designated 3,887,800 ac (1,573,340 ha) of critical habitat in 32 units on Federal and non-Federal lands. On September 24, 1997, we completed the Recovery Plan for the marbled murrelet in Washington, Oregon, and California (USFWS 1997). On January 13, 2003, we entered into a settlement agreement with the American Forest Resource Council and the Western Council of Industrial Workers, whereby we agreed to review the marbled murrelet critical habitat designation and make any revisions deemed appropriate after a revised consideration of economic and any other relevant impacts of designation. On April 21, 2003, we published a notice initiating a 5–year review of the marbled murrelet (68 FR 19569), and published a second information request for the 5–year review on July 25, 2003 (68 FR 44093). The 5–year review evaluation report VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 was finished in March 2004 (McShane et al. 2004), and the 5–year review was completed on August 31, 2004. On September 12, 2006, we published a proposed revision to critical habitat for the marbled murrelet, which included adjustments to the original designation and proposed several exclusions under section 4(b)(2) of the Act (71 FR 53838). On June 26, 2007, we published a notice of availability of a draft economic analysis (72 FR 35025) related to the September 12, 2006, proposed critical habitat revision (71 FR 53838). On March 6, 2008, we published a notice in the Federal Register (73 FR 12067) stating that the critical habitat for marbled murrelet should not be revised at that time, which concluded our obligations under the settlement agreement. We found that the proposed revision to marbled murrelet critical habitat should not be made due to uncertainties regarding Bureau of Land Management (BLM) revisions to its District Resource Management Plans in western Oregon. While the BLM is still revising its District Resource Management Plans in western Oregon, we have determined that there are a few areas that, due to new information that is the best available information, we believe do not meet the definition of critical habitat. Therefore, we are proposing the revisions discussed below to the 1996 critical habitat designation. Taxonomy Two subspecies of the marbled murrelet were previously recognized, the North American murrelet (Brachyramphus marmoratus marmoratus) and the Asiatic murrelet (B. marmoratus perdix). New published information suggests that the Asiatic murrelet is a distinct species (Friesen et al. 1996, 2005), and the American Ornithologists’ Union officially recognized the long-billed murrelet (B. perdix) and the marbled murrelet (B. marmoratus) as distinct species in the ‘‘Forty-first Supplement to the Checklist of North American Birds’’ (American Ornithologists’ Union 1997). Therefore, in this rule we are proposing to revise 50 CFR 17.11 to adopt the taxonomic clarification for the marbled murrelet to reflect the change from Brachyramphus marmoratus marmoratus to Brachyramphus marmoratus. Critical Habitat Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 44679 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 a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means the use of all methods and procedures that are necessary to bring any endangered species or threatened species to the point at which the measures provided under the Act are no longer necessary. Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing activities that result in the destruction or adverse modification of critical habitat. Section 7 of the Act requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by the landowner. Where the landowner seeks or requests Federal agency funding or authorization of an activity that may affect a listed species or critical habitat, the consultation requirements of section 7 would apply. However, even in the event of a destruction or adverse modification finding, the landowner’s obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. For inclusion in a critical habitat designation, habitat within the geographical area occupied by the species at the time it was listed must contain features that are essential to the conservation of the species. Critical habitat designations identify to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)). Occupied habitat that contains features essential to the conservation of the species meets the definition of critical habitat only if those features may require special management considerations or E:\FR\FM\31JYP1.SGM 31JYP1 yshivers on PROD1PC62 with PROPOSALS 44680 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules protection. Under the Act, we can designate unoccupied areas as critical habitat only when we determine that the best available scientific data demonstrate that the designation of that area is essential to the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be proposed as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include 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, or other unpublished materials and expert opinion or personal knowledge. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include allofthe habitat areas that we may eventually determine, based on scientific data not now available to the Service, 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 required for recovery of the species. Areas that support populations, but are outside the critical habitat designation, may continue to be subject to conservation actions we implement under section 7(a)(1) of the Act. They are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available scientific information at the time of the agency action. Federally funded or VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. 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 to these planning efforts calls for a different outcome. Methods As required by section 4(b)(2) of the Act, we use the best scientific data available to determine areas occupied at the time of listing that contain the features essential to the conservation of the marbled murrelet. On April 21, 2003, we published a notice initiating a 5–year review of the marbled murrelet (68 FR 19569), and on July 25, 2003, we published a request for additional information related to that review (68 FR 44093). An evaluation report summarizing the biological, ecological, and population information on the marbled murrelet was completed in March 2004 (McShane et al. 2004). That report also evaluated current threats and how they may have changed since the species was listed. The 5–year status review was completed on August 31, 2004. We also reviewed the scientific data and other information that was used to finalize the 1996 critical habitat designation, which included research published in peer-reviewed articles, agency reports, unpublished data, and various Geographic Information System (GIS) data layers (e.g., land cover type information, land ownership information, topographic information). We reviewed the conservation needs of the marbled murrelet described in the recovery plan (USFWS 1997), and considered new scientific information and data that were available from State, Federal, and Tribal agencies, as well as academia and private organizations. Primary Constituent Elements In accordance with section 3(5)(A)(i) of the Act and the regulations at 50 CFR 424.12(b), in determining which areas occupied at the time of listing to propose as critical habitat, we consider the physical and biological features that are essential to the conservation of the species to be the primary constituent elements laid out in the appropriate quantity and spatial arrangement for conservation of the species. These include, but are not limited to: (1) Space for individual and population growth and for normal behavior; PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and (5) Habitats that are protected from disturbance or are representative of the historic, geographical, and ecological distributions of a species. We derive the specific PCEs required for the marbled murrelet from the biological needs of the species as described in the Background section of the final rule designating critical habitat for the marbled murrelet. The PCEs identified in the May 24, 1996, final critical habitat designation (61 FR 26254) have not been revised for purposes of this proposal, and remain applicable to this proposed revision of critical habitat for the marbled murrelet. Criteria Used To Identify Critical Habitat The criteria used to identify critical habitat areas described in the May 24, 1996, Federal Register remain applicable to this proposed revision of critical habitat for the marbled murrelet. These include suitable nesting habitat, information on presence/absence and occupancy, proximity to marine foraging habitat, large contiguous blocks of nesting habitat, rangewide distribution, and adequacy of existing protection and management (61 FR 26265). Summary of Changes From Previously Designated Critical Habitat Approximately 254,070 ac (102,820 ha) of critical habitat that was designated in the May 24, 1996, final rule is being proposed for removal under this revision: (1) Critical habitat boundaries in southern Oregon and northern California would be revised based on extensive studies demonstrating that the distribution of likely nesting birds is not as far inland as delineated in 1996. Approximately 191,370 ac (77,450 ha) of critical habitat would be removed from the designation based on this new information; (2) Approximately 62,700 ac (25,370 ha) of critical habitat designated farther than 35 miles (mi) (56.3 kilometers (km)) from the coast would be removed in Douglas and Lane counties, Oregon. These areas do not meet the criteria used to identify critical habitat in the 1996 designation, specifically the proximity to marine foraging habitat. Removing these acres from the designation would conform to the marbled murrelet recovery plan’s E:\FR\FM\31JYP1.SGM 31JYP1 44681 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules recommendation for protection of suitable nesting habitat within 35 mi (56.3 km) of the Pacific Ocean shoreline (USFWS 1997, p. 127, 131). This area is where the majority of known occupied marbled murrelet sites are found in Oregon (USFWS 1997, pp. 127, 131) ; (3) We are using a more efficient method of providing legal descriptions of critical habitat for the specific areas proposed in this rule. Instead of using the Public Land Survey System (e.g., identification of boundaries using township and range information), we are presenting UTM (Universal Transverse Mercator) data points generated through GIS (Geographic Information System) mapping. While we are providing maps of the affected units, we are not including the textual descriptions in this proposed rule; these descriptions will be provided in the final rule revising designated critical habitat for the marbled murrelet. Proposed Revised Critical Habitat Designation We are proposing to revise the 1996 final designation of critical habitat for the marbled murrelet to reflect the removal of 3 critical habitat units and revision of 12 critical habitat units totaling approximately 254,070 ac (102,820 ha) as follows: Approximately 191,370 ac (77,450 ha) in zone 2 in northern California and southern Oregon would be removed where extensive surveys have demonstrated marbled murrelets are very unlikely to be found (Hunter et al. 1997, pp. 16-25; Schmidt et al. 2000, pp. 16-22; U.S. Forest Service and Bureau of Land Management 2002, p. 16.). Zone 2 includes areas from 35 miles (56.3 km) to 50 miles (80.5 km) from marine environments (FEMAT 1993, p. IV-24). Both of these studies acknowledge that it is possible that marbled murrelets may occasionally use some portion of the study areas; however, if the species does occur, the number of individuals is probably very low. Accordingly, it appears that the habitat in these areas does not contain the physical and biological features in the necessary spatial configuration that is essential for the conservation of the species. Therefore, we believe these areas do not meet the definition of critical habitat. Approximately 62,700 ac (25,370 ha) of critical habitat in Douglas and Lane Counties, Oregon, would be removed where critical habitat was designated farther than 35 miles (56.3 km) from the coast. These areas do not meet the criteria used to identify critical habitat in the 1996 designation, specifically the proximity to marine foraging habitat. This action would be consistent with the marbled murrelet working team recommendations to the Forest Ecosystem Management Assessment Team (FEMAT) for the majority of occupied sites in Oregon (FEMAT 1993, p. IV-23). This proposal would also better conform with the marbled murrelet recovery plan recommendations, by limiting critical habitat to the areas where the majority of known occupied murrelet sites are found (USFWS 1997, p. 127, 131). Areas that would be removed from the 1996 critical habitat designation are in Douglas and Lane counties, Oregon (inland of Coos Bay, Oregon), and in northern California and southern Oregon. All other critical habitat units that were designated in the May 24, 1996, final rule contain the physical and biological features considered essential to the conservation of the species. Other than minor adjustments and/or those units specifically identified in this proposed rule, where a critical habitat unit includes Federal lands within the boundaries of a Late Successional Reserve (LSR) established by the Northwest Forest Plan, the areas included within the LSR boundaries as they existed on May 24, 1996, remain designated as critical habitat. The critical habitat areas described below reflect our current best assessment of areas that no longer meet the definition of critical habitat for the marbled murrelet in Zone 2. To better understand the location of these proposed areas, refer to the maps included in this proposed rule or at our Western Washington Field Office’s internet site at http://www.fws.gov/ westwafwo/. TABLE 1—AREAS PROPOSED FOR REMOVAL BY STATE Areas Removed from Designated Critical Habitat Units Acres Hectares California 143,487 58,068 Oregon 110,585 44,752 0 0 254,071 102,821 Washington TOTAL TABLE 2—AREAS PROPOSED FOR REMOVAL BY CRITICAL HABITAT UNIT AND OWNERSHIP Critical Habitat Unit Name from 1996 Designation Ownership Acres Removed Hectares Removed USFS 19,363 7,836 CA-01e USFS 28,168 11,400 CA-10a USFS 35,935 14,543 CA-11b USFS 8,540 3,456 CA-11c BLM 2,644 1,070 CA-11d USFS 61,558 24,912 OR-03-c BLM 146 59 OR-04-e yshivers on PROD1PC62 with PROPOSALS CA-01d BLM 6,557 2,654 OR-04-f BLM 20,736 8,391 OR-04-g BLM 2,780 1,125 OR-04-i BLM 25,616 10,366 OR-04-j BLM 480 194 VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\31JYP1.SGM 31JYP1 44682 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules TABLE 2—AREAS PROPOSED FOR REMOVAL BY CRITICAL HABITAT UNIT AND OWNERSHIP—Continued Critical Habitat Unit Name from 1996 Designation Ownership Acres Removed Hectares Removed OR-06-d BLM 9,170 3,711 OR-07-d USFS 26,524 10,734 OR-07-f BLM 1,032 418 OR-07-f USFS 4,821 1,951 TOTALS 254,071 102,821 California. The following designated critical habitat units are being proposed for removal or revision from the 1996 designation, based on extensive surveys that have demonstrated murrelets are very unlikely to be found using the area. These units or portions thereof no longer meet the definition of critical habitat: CA-01-d (portion), CA-01-e (portion), CA-10-a (entire), CA-11-b (portion), CA-11-c (entire), and CA-11-d (entire). Oregon. The following designated critical habitat units are being proposed for removal or revision from the 1996 critical habitat designation, based on extensive surveys that have demonstrated murrelets are very unlikely to be found using the area. These units or portions thereof no longer meet the definition of critical habitat where they extend into Oregon: CA-01-e (entire) and CA-10-a (entire), and units OR-04-g (portion), OR-07-d (portion), and OR-07-f (portion). Oregon. The following critical habitat units in Douglas and Lane Counties, Oregon have been proposed for removal or revision where critical habitat was designated farther than 35 miles inland from the coast, based on the FEMAT murrelet zone 1 line. The marbled murrelet recovery plan, completed in 1997 (USFWS 1997), recommended limiting critical habitat to areas less than 35 miles from the coast, where the majority of known occupied murrelet sites are found. These units or portions thereof no longer meet the definition of critical habitat: OR-03-c (portion), OR04-e (portion), OR-04-f (portion), OR-04i (portion), OR-04-j (portion) and OR-06d (portion). yshivers on PROD1PC62 with PROPOSALS Effects of Critical Habitat Designation Section 7 Consultation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Decisions by the 5th and 9th Circuit Court of Appeals have invalidated our definition of VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 ‘‘destruction or adverse modification’’ (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife Service et al. 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the PCEs to be functionally established) to serve its intended conservation role for the species. If a species is listed or critical habitat is designated, section 7(a) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of: (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. We define ‘‘Reasonable and prudent alternatives’’ at 50 CFR 402.02 as alternative actions identified during consultation that: PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 • Can be implemented in a manner consistent with the intended purpose of the action, • Can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, • Are economically and technologically feasible, and • Would, in the Director’s opinion, avoid jeopardizing the continued existence of the listed species or destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency’s discretionary involvement or control is authorized by law). Consequently, Federal agencies may sometimes need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat. When we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. ‘‘Reasonable and prudent alternatives’’ are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency’s legal authority and jurisdiction, that are economically and technologically feasible, and that the E:\FR\FM\31JYP1.SGM 31JYP1 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules yshivers on PROD1PC62 with PROPOSALS Director believes would avoid the destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Federal activities that may affect marbled murrelet or its designated critical habitat will require section 7 consultation under the Act. Activities on State, Tribal, local or private lands requiring a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from us under section 10 of the Act), or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) are subject to the section 7 consultation process. Federal actions not affecting marbled murrelet or its designated critical habitat, and actions on State, Tribal, local or private lands that are not federally funded, authorized, or under permit, do not require section 7 consultations. Currently designated marbled murrelet critical habitat (see 50 CFR 17.95(b)) will remain designated critical habitat until this proposal is finalized. Therefore, any Federal activities that may affect currently designated critical habitat will be subject to section 7 consultation requirements. Application of the Adverse Modification Standard The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species, or would retain its current ability for the PCEs to be functionally established. Activities that may destroy or adversely modify critical habitat are those that alter the PCEs to an extent that appreciably reduces the conservation value of critical habitat for the marbled murrelet. The range of the marbled murrelet has been subdivided by the Recovery Team into six Marbled Murrelet Conservation Zones (USFWS 1997, pp. 125-130), based on the need for potentially different recovery actions in various portions of the marbled murrelet’s range, and the need to maintain welldistributed populations. These zones include Puget Sound (Zone 1), Western Washington Coast Range (Zone 2), Oregon Coast Range (Zone 3), Siskiyou VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 Coast Range (Zone 4), Mendocino (Zone 5), and the Santa Cruz Mountains (Zone 6). Marbled murrelets within the conservation zones are likely to interact across zone boundaries at some level. Generally, the conservation role of marbled murrelet critical habitat units is to support nesting, roosting, and other normal behaviors (61 FR 26256). It is also necessary to produce and maintain viable marbled murrelet populations that are well distributed throughout the respective Conservation Zones (USFWS 1997 p. 116). Specific goals are described in the recovery plan, but generally include maintaining occupied sites and suitable nesting habitat for marbled murrelets. Because it will take 50 or more years to develop new nesting habitat, the short-term focus is on retaining and/or increasing terrestrial habitat (USFWS 1997 p. vi). For a wide-ranging species such as the marbled murrelet, where multiple critical habitat units are designated, each unit has a Regional Conservation Zone (RCZ) and range-wide role in contributing to the conservation of the species. The basis for an adverse modification opinion would be whether a proposed action appreciably reduces the ability of critical habitat to remain functional to serve its identified conservation role at the RCZ and rangewide levels. Thus, an adverse modification finding would be based upon a broader inquiry than an assessment of adverse effects at the local unit level. The loss or modification of portions of critical habitat to an extent that the affected unit(s) would not be likely to adequately support sufficient numbers of nesting murrelets may represent destruction or adverse modification of marbled murrelet critical habitat. Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that are carried out, funded, or authorized by a Federal agency and may affect marbled murrelet critical habitat require consultation on its effects to marbled murrelet critical habitat. Activities in critical habitat for the marbled murrelet vary in degree of impact on critical habitat from those with no effect, to those with short-term adverse effects but long-term beneficial effects, to those with adverse affects but that do not destroy or adversely modify critical habitat, and finally to those that may destroy or adversely modify critical habitat. In all cases, the current PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 44683 condition of the critical habitat, both locally and rangewide, and specific parameters of the action will determine the level of effect. A variety of activities that disturb or remove PCEs may adversely affect, though not necessarily ‘‘adversely modify’’, marbled murrelet critical habitat as that term is used in section 7 consultations. These include, but are not limited to: (1) Removal, modification, or fragmentation of forested areas that directly impact nesting structures, nesting substrate, and the vertical and horizontal cover provided by the surrounding forest. Fragmentation of forested areas can result in habitat isolation and increased edge, which negatively impacts the quality of the remaining nesting habitat primarily through increased predation; modification of the microclimate; and potential windthrow of nest trees. Any action resulting in the removal of a potential nest tree is likely to result in an adverse effect to critical habitat. Federal actions primarily affecting marbled murrelet nesting habitat include timber harvest, salvage logging, and hazard tree removal. Indirect harvest-related effects of Federal actions could include windthrow caused by harvest. In addition, road construction, recreational or other developments, and fuels reduction projects may also result in these types of effects. (2) New and existing human activity, including recreation, agriculture, and urbanization, adjacent to and within forested areas can result in loss or modification of the PCEs. Interior forest nests in contiguous stands far from human activity appear to experience the least predation, and public lands that are easily accessible have higher levels of human use, with resultant activities that are attractive to corvids (Marzluff et al. 1996). The other factor which appears to increase predation rates is higher levels of landscape fragmentation (Marzluff et al. 1996). The following activities may have adverse effects on murrelet critical habitat PCEs: (1) Removal or degradation of individual trees with potential nesting platforms, or the nest platforms themselves, that results in a significant decrease in the value of the trees for future nesting use. Moss may be an important component of nesting platforms in some areas. (2) Removal or degradation of trees adjacent to trees with potential nesting platforms that provide habitat elements essential to the suitability of the potential nest tree or platform, such as E:\FR\FM\31JYP1.SGM 31JYP1 yshivers on PROD1PC62 with PROPOSALS 44684 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules trees providing cover from weather or predators. (3) Removal or degradation of forested areas with a canopy height of at least 1/ 2 the site-potential tree height and, regardless of contiguity, within 0.8 km (0.5 mi) of individual trees containing potential nest platforms. This includes removal or degradation of trees currently unsuitable for nesting that contribute to the structure/integrity of the potential nest area (i.e., trees that contribute to the canopy of the forested area). These trees provide the canopy, stand conditions, and protection from predation important for marbled murrelet nesting. Beneficial actions may also adversely affect, but would not be expected to adversely modify, critical habitat, since they would promote the development or improve the functional quality of critical habitat for the marbled murrelet. This could include: (1) Thinning under potential nest trees to protect the tree’s nesting structures from competing trees, which would help maintain suitable nesting habitat; (2) Thinning in younger stands to speed their attainment of 1/2 site-potential tree height in the vicinity of potential nest trees, which would benefit the function of marbled murrelet critical habitat by decreasing fragmentation, maintaining microclimate of potential nest trees, and reducing the effects of predation. Actions that promote the development of potential nest trees, while maintaining the integrity of the forest stand, would also be beneficial to the function of critical habitat by increasing future nesting habitat, and providing replacement habitat for existing nest stands that may be lost to such natural events as wildfire and windthrow. Some thinning activity may have short-term adverse effects but long-term beneficial impacts. For example, actions in existing critical habitat designed to create canopy diversity or promote the development of future nest trees may open the canopy for a short time, resulting in some potential increase in predation. However, if such effects are short-lived, current nesting habitat is not removed, and the prescription speeds the development of suitable nest trees where such trees are limited, the result may be a long-term improvement in critical habitat condition. For a proposed action to result in destruction or adverse modification of critical habitat, it must affect the designated critical habitat to an extent that the affected unit(s) no longer serves its intended conservation role for the species or no longer retains its current ability for the primary constituent elements to be functionally established. VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 Proposed actions requiring a section 7 consultation must be evaluated individually, in light of the baseline condition of the critical habitat unit and RCZ, unique history of the area, and effect of the impact on the critical habitat unit relative to its regional and range-wide role in the conservation of the species. The loss or substantial reduction of viable populations throughout one or more RCZs, or even a major part of an RCZ, could lead to genetic and demographic isolation of parts of the population. All of the units designated as critical habitat contain features essential to the conservation of the marbled murrelet. All units are within the geographic range of the species, were occupied or likely to be occupied by the species at the time of listing, and are likely to be used by the marbled murrelet. Federal agencies already consult on activities in areas currently occupied by the marbled murrelet, or if the species may be affected by the action, to ensure that their actions do not jeopardize the continued existence of the marbled murrelet. Activities that have little to no effect in one critical habitat unit or RCZ may cause serious effects in another, due to differences in existing conditions and the conservation function of critical habitat. Therefore, the Service cannot provide a detailed description of the threshold for future actions that would result in the destruction or adverse modification of critical habitat applicable throughout the range of the designated critical habitat in this proposed rule. However, we fully anticipate that some projects may be proposed in critical habitat that will adversely affect PCEs, and, in some cases, may include removal of stands of 1/2 site-potential tree height while not reaching the level of destruction or adverse modification of critical habitat. For example, the harvest of relatively small stands of trees that contribute to the function of PCEs (e.g., stands with a canopy of 1/2 site-potential tree height within 0.5 mile (0.8 km) of a potential nest tree) in a critical habitat unit with a large number of potential nest trees and a high proportion of surrounding forest cover most likely will not appreciably reduce the ability of critical habitat to remain functional at the RCZ and rangewide scales. Actions that adversely affect forest stands that are not within 0.5 mile (0.8 km) of individual trees with potential nesting platforms would probably not adversely modify critical habitat, even if they occur within the boundaries of the area designated as critical habitat. Activities that do not affect the PCEs or PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 the ability for the PCEs to be functionally established are unlikely to be affected by the designation. However, even though an action may not adversely affect or adversely modify critical habitat, it may still affect marbled murrelets (e.g., through disturbance) and may, therefore, still be subject to consultation under section 7 of the Act. If you have questions regarding whether specific activities may constitute destruction or adverse modification of critical habitat, contact a Field Supervisor listed under ‘‘FOR FURTHER INFORMATION CONTACT‘‘. Application of Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that, ‘‘[T]he Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) 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.’’ We have considered the potential economic impacts of this proposed critical habitat revision based on information in our 2007 economic analysis (described in 72 FR 35025), and are not proposing to exclude any areas under section 4(b)(2) because of economic, national security, or other considerations. However, to ensure our final determination is based on the best available information, we are hereby soliciting comments on any foreseeable economic, national security, or other potential impacts resulting from this proposed revised designation of critical habitat, and in particular, any potential impacts on small entities, and whether the benefits of exclusion of a particular area outs weighs the benefits of inclusion. Application of Section 4(a)(3)(B)(i) of the Act The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides: ‘‘The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.’’ There are no areas owned or controlled E:\FR\FM\31JYP1.SGM 31JYP1 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules by the Department of Defense within the areas being proposed for this revised critical habitat designation. Peer Review In accordance with our joint policy published in the Federal Register on July 1, 1994 (59 FR 34270), we are obtaining the expert opinions of at least three appropriate independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our revised critical habitat designation is based on scientifically sound data, assumptions, and analyses. We have invited these peer reviewers to comment during this public comment period on our specific assumptions and conclusions in this proposed designation of revised critical habitat. We will consider all comments and information we receive during this comment period on this proposed rule during our preparation of a final determination. Accordingly, our final decision may differ from this proposal. Public Hearings The Act provides for one or more public hearings on this proposal if we receive any requests for hearings. We must receive your request for a public hearing within 45 days after the date of this Federal Register publication. Send your request to an address listed in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the first hearing. Required Determinations yshivers on PROD1PC62 with PROPOSALS Regulatory Planning and Review (E.O. 12866) The Office of Management and Budget (OMB) has determined that this rule is not significant under Executive Order (E.O.) 12866. OMB bases its determination upon the following four criteria: (1) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government. (2) Whether the rule will create inconsistencies with other Federal agencies’ actions. (3) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. (4) Whether the rule raises novel legal or policy issues. VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 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 (SBREFA) of 1996), whenever an agency must 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 (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. This proposed revision would result in an approximate 254,070 acre (102,820 ha) reduction in the critical habitat acreage that was designated in the May 24, 1996, final rule (61 FR 26256). No critical habitat will be added under this proposed revision, and the reductions occur exclusively on Federal lands. Accordingly, we do not believe that it will have a significant economic impact on a substantial number of small entities. 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 findings: (a) This rule will 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 [T]ribal 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 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 44685 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; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. ‘‘Federal private sector mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.’’ The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While nonFederal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments. (b) This proposed revision would result in an approximate 254,070 ac (102,820 ha) reduction in the critical habitat acreage that was designated in the May 24, 1996, final rule (61 FR 26256). All of these acres are on Federal lands. Accordingly, we do not believe that it will significantly or uniquely affect small governments because small governments will be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat. This proposed revision would remove a portion of the designated critical habitat, removing the need to consult on effects to critical habitat for those removed areas. Therefore, a Small Government Agency Plan is not required. E:\FR\FM\31JYP1.SGM 31JYP1 44686 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules Takings In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of this revised designation of critical habitat for the marbled murrelet in a takings implications assessment. The takings implications assessment concludes that this revised designation of critical habitat for the marbled murrelet does not pose additional takings implications for lands within or affected by the original 1996 designation. Federalism In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A Federalism assessment is not required. We believe that the revised designation of critical habitat for the marbled murrelet will have little incremental impact on State and local governments and their activities, since the removal of 254,070 ac (102,820 ha) of currently designated critical habitat would impose no additional restrictions beyond any that may already be in place. Civil Justice Reform In accordance with E.O. 12988 (Civil Justice Reform),this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have issued this proposed critical habitat revision in accordance with the provisions of the Act. This proposed rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of the marbled murrelet. yshivers on PROD1PC62 with PROPOSALS Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act (NEPA) It is our position that, outside the jurisdiction of the United States Court of VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by 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 assertion was upheld by the United States Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996). 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: (a) Be logically organized; (b) Use the active voice to address readers directly; (c) Use clear language rather than jargon; (d) Be divided into short sections and sentences; and (e) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. 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), E.O. 13175 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. This proposed revision would result in an approximate 254,070 ac (102,820 ha) reduction in the critical habitat acreage that was designated in the May 24, 1996, final rule (61 FR 26256). None PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 of the areas proposed for removal are on tribal lands. Energy Supply, Distribution, or Use On May 18, 2001, the President issued an Executive Order (E.O. 13211; Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not expect this proposed rule to significantly affect energy supplies, distribution, or use, since it would involve removing approximately 254,070 ac (102,820 ha) of critical habitat from the existing critical habitat designation. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. References Cited A complete list of all references cited in this rulemaking is available online at http://www.fws.gov/westwafwo/ or upon request from the Field Supervisor, Western Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Author(s) The primary author(s) of this package are staff from the Pacific Region Ecological Services Offices. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Public Law 99-625, 100 Stat. 3500; unless otherwise noted. 2. In § 17.11(h), revise the entry for ‘‘Murrelet, marbled’’ under ‘‘BIRDS’’ in the List of Endangered and Threatened Wildlife to read as follows: § 17.11 Endangered and threatened wildlife. * * * * * (h) * * * E:\FR\FM\31JYP1.SGM 31JYP1 44687 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules Species Historic range Common name Scientific name *** Vertebrate population where endangered or threatened Status When listed Critical habitat Special rules **** Birds *** **** Murrelet, marbled Brachyramphus marmoratus *** **** U.S.A. (AK, CA, OR, WA), Canada (B.C.) yshivers on PROD1PC62 with PROPOSALS 3.In § 17.95(b), amend the entry for ‘‘Marbled Murrelet’’ as follows: a. Revise the heading to read as set forth below; b. Revise paragraph 3 to read as set forth below; c. Remove the index map for Oregon (‘‘General configuration of final critical habitat in Oregon’’) and replace it with the map titled ‘‘Critical Habitat for the Marbled Murrelet (Brachyramphus marmoratus) in Oregon’’, as set forth below; d. Remove the index map for California (‘‘General configuration of final critical habitat in California’’) and replace it with the index map titled ‘‘Critical Habitat for the Marbled Murrelet (Brachyramphus marmoratus) in California’’, as set forth below; e. Remove the critical habitat description and map for Unit OR–03–c and add in its place a new map for Unit OR–03–c as set forth below; f. Remove the critical habitat description and map for Unit OR–04–e and add in its place a new map for Unit OR–04–e as set forth below; g. Remove the critical habitat description and map for Unit OR–04–f and add in its place a new map for Unit OR–04–f as set forth below; h. Remove the critical habitat description and map for Unit OR–04–g VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 U.S.A. (CA, OR, WA) T 479 and add in its place a new map for Unit OR–04–g as set forth below; i. Remove the critical habitat description and map for Unit OR–04–i and add in its place a new map for Unit OR–04–i as set forth below; j. Remove the critical habitat description and map for Unit OR–04–j and add in its place a new map for Unit OR–04–j as set forth below; k. Remove the critical habitat description and map for Unit OR–06–d and add in its place a new map for Unit OR–06–d as set forth below; l. Remove the critical habitat description and map for Unit OR–07–d and add in its place a new map for Unit OR–07–d as set forth below; m. Remove the critical habitat description and map for Unit OR–07–f and add in its place a new map for Unit OR–07–f as set forth below; n. Remove the critical habitat description and map for Unit CA–01–d and add in its place a new map for Unit CA–01–d as set forth below; o. Remove the critical habitat description and map for Unit CA–01–e and add in its place a new map for Unit CA–01–e as set forth below; p. Remove the critical habitat description and map for Unit CA–10–a; q. Remove the critical habitat description and map for Unit CA–11–b PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 17.95(b) NA and add in its place a new map for Unit CA–11–b as set forth below; r. Remove the critical habitat description and map for Unit CA–11–c; and s. Remove the critical habitat description and map for Unit CA–11–d. § 17.95 Critical habitat—fish and wildlife. * * * * * (b) Birds. * * * * * Marbled Murrelet (Brachyramphus marmoratus) * * * * * 3. A description of the critical habitat units follows. Where a critical habitat unit includes Federal lands within the boundaries of a Late Successional Reserve (LSR) established by the Northwest Forest Plan, the areas included within the LSR boundaries as they existed on May 24, 1996, remain designated as critical habitat. Critical habitat units do not include non-federal lands covered by a legally operative incidental take permit for marbled murrelets issued under section 10(a) of the Act. * * * * * BILLING CODE 4310–55–S E:\FR\FM\31JYP1.SGM 31JYP1 VerDate Aug<31>2005 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules 15:08 Jul 30, 2008 Jkt 214001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4725 E:\FR\FM\31JYP1.SGM 31JYP1 EP31JY08.000</GPH> yshivers on PROD1PC62 with PROPOSALS 44688 VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4725 E:\FR\FM\31JYP1.SGM 31JYP1 44689 EP31JY08.001</GPH> yshivers on PROD1PC62 with PROPOSALS Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules 44690 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4725 E:\FR\FM\31JYP1.SGM 31JYP1 EP31JY08.002</GPH> yshivers on PROD1PC62 with PROPOSALS Unit OR–03–c: Benton County, Oregon. From USGS 1:24,000 scale quadrangle: Airlie South. Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules * * VerDate Aug<31>2005 * * 15:08 Jul 30, 2008 Unit OR–04–e: Douglas County, Oregon. From USGS 1:24,000 scale quadrangles: Callahan and Tyee. Jkt 214001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4725 E:\FR\FM\31JYP1.SGM 31JYP1 EP31JY08.003</GPH> yshivers on PROD1PC62 with PROPOSALS * 44691 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules yshivers on PROD1PC62 with PROPOSALS Unit OR-04-f: Douglas County, Oregon. From USGS 1:24,000 scale quadrangles: Garden Valley, Kellogg, VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 Putnam Valley, Tyee, Tyee Mountain, Yellow Butte and Yoncalla. PO 00000 Frm 00022 Fmt 4702 Sfmt 4725 E:\FR\FM\31JYP1.SGM 31JYP1 EP31JY08.004</GPH> 44692 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules 44693 VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 PO 00000 Frm 00023 Fmt 4702 Sfmt 4725 E:\FR\FM\31JYP1.SGM 31JYP1 EP31JY08.005</GPH> yshivers on PROD1PC62 with PROPOSALS Unit OR-04-g: Douglas County, Oregon. From USGS 1:24,000 scale quadrangle: Putnam Valley. Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules yshivers on PROD1PC62 with PROPOSALS Unit OR-04-i: Douglas and Lane Counties, Oregon. From USGS 1:24,000 scale quadrangles: Beaver Creek, Crow, VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 Drain, High Point, Letz Creek, Noti, Putnam Valley and Veneta. PO 00000 Frm 00024 Fmt 4702 Sfmt 4725 E:\FR\FM\31JYP1.SGM 31JYP1 EP31JY08.006</GPH> 44694 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules 44695 VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 PO 00000 Frm 00025 Fmt 4702 Sfmt 4725 E:\FR\FM\31JYP1.SGM 31JYP1 EP31JY08.007</GPH> yshivers on PROD1PC62 with PROPOSALS Unit OR-04-j: Douglas and Lane Counties, Oregon. From USGS 1:24,000 scale quadrangles: Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules * * * * Unit OR-06-d: Coos and Douglas Counties, Oregon. From USGS 1:24,000 yshivers on PROD1PC62 with PROPOSALS * VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 scale quadrangles: Camas Valley, Mt Gurney, Reston and Tenmile. PO 00000 Frm 00026 Fmt 4702 Sfmt 4725 E:\FR\FM\31JYP1.SGM 31JYP1 EP31JY08.008</GPH> 44696 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 scale quadrangles: Biscuit Hill, PO 00000 Frm 00027 Fmt 4702 Sfmt 4725 Buckskin Peak, High Plateau Mountain, O’Brien and Shelly Creek Ridge. E:\FR\FM\31JYP1.SGM 31JYP1 EP31JY08.009</GPH> * * * * Unit OR-07-d: Curry and Josephine Counties, Oregon. From USGS 1:24,000 yshivers on PROD1PC62 with PROPOSALS * 44697 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules yshivers on PROD1PC62 with PROPOSALS Unit OR-07-f: Curry and Josephine Counties, Oregon. From USGS 1:24,000 VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 scale quadrangles: Brandy Peak, Kelsey Peak, Marial and Silver Peak. PO 00000 Frm 00028 Fmt 4702 Sfmt 4725 E:\FR\FM\31JYP1.SGM 31JYP1 EP31JY08.010</GPH> 44698 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 quadrangles: Prescott Mountain, Bear PO 00000 Frm 00029 Fmt 4702 Sfmt 4725 Peak, Clear Creek, Chimney Rock, Dillon Mountain. E:\FR\FM\31JYP1.SGM 31JYP1 EP31JY08.011</GPH> * * * * Unit CA-01-d: Siskiyou County, California. From USGS 1:24,000 scale yshivers on PROD1PC62 with PROPOSALS * 44699 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules yshivers on PROD1PC62 with PROPOSALS Unit CA-01-e: Del Norte County, California. From USGS 1:24,000 scale VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 quadrangles: Takilma, Broken Rib Mountain, Polar Bear Mountain PO 00000 Frm 00030 Fmt 4702 Sfmt 4725 E:\FR\FM\31JYP1.SGM 31JYP1 EP31JY08.012</GPH> 44700 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Proposed Rules * * * * Unit CA-11-b: Humboldt County, California. From USGS 1:24,000 scale quadrangles: Hennessy Peak, Sims Mountain. * Dated: July 22, 2008, Lyle Laverty, Assistant Secretary for Fish and Wildlife and Parks. * * * * [FR Doc. E8–17343 Filed 7–30–08; 8:45 am] BILLING CODE 4310–55–C VerDate Aug<31>2005 15:08 Jul 30, 2008 Jkt 214001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 E:\FR\FM\31JYP1.SGM 31JYP1 EP31JY08.013</GPH> yshivers on PROD1PC62 with PROPOSALS * 44701

Agencies

[Federal Register Volume 73, Number 148 (Thursday, July 31, 2008)]
[Proposed Rules]
[Pages 44678-44701]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-17343]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2008-0079; 92210-1117-0000-FY08-B4]
RIN 1018-AW18


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for the Marbled Murrelet

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 designated critical habitat for marbled murrelet (Brachyramphus 
marmoratus marmoratus) under the Endangered Species Act of 1973, as 
amended (Act). On May 24, 1996, we designated 3,887,800 ac (ac) 
(1,573,340 hectares (ha)) as critical habitat for the marbled murrelet 
in Washington, Oregon, and California. We are proposing to revise 
currently designated critical habitat for the marbled murrelet by 
removing approximately 254,070 ac (102,820 ha) in northern California 
and Oregon from the 1996 designation, based on new information 
indicating that these areas do not meet the definition of critical 
habitat. This action, if adopted in its entirety, would result in a 
revised designation of approximately 3,633,800 ac (1,470,550 ha) as 
critical habitat for the marbled murrelet. In this rule, we are further 
proposing, under the Act, a taxonomic revision of the scientific name 
of the marbled murrelet from Brachyramphus marmoratus marmoratus to 
Brachyramphus marmoratus.

DATES: We will accept comments received or postmarked on or before 
September 29, 2008. We must receive requests for public hearings in 
writing at the address shown in the ADDRESSES section by September 15, 
2008.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AW18; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Ken Berg, Field Supervisor, U.S. Fish 
and Wildlife Service, Western Washington Fish and Wildlife Office, 510 
Desmond Drive SE, Suite 102, Lacey, WA 98503-1273, telephone 360-753-
9440, facsimile 360- 753-9008; Paul Henson, Field Supervisor, U.S. Fish 
and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th 
Avenue, Suite 100, Portland, OR 97266, telephone 503-231-6179, 
facsimile 503-231-6195; or Michael Long, Field Supervisor, U.S. Fish 
and Wildlife Service, Arcata Fish and Wildlife Office, 1655 Heindon 
Road, Arcata, CA 95521, telephone 707-822-7201, facsimile 707-822-8411. 
If you use a telecommunications device for the deaf (TDD), call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions on this proposed rule. We particularly seek 
comments concerning:
    (1) The reasons why we should or should not revise currently 
designated critical habitat for the marbled murrelet by removing 
254,070 ac (102,820 ha) from the 1996 designation, based on new 
information that is the best available information indicating that 
these areas do not meet the definition of critical habitat;
    (2) Specific information on the amount and distribution of marbled 
murrelet habitat;
    (3) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed critical habitat revision, and in 
particular, any impacts on small entities;
    (4) Our proposal to revise 50 CFR 17.11 to adopt the taxonomic 
clarification for the marbled murrelet to reflect the change from 
Brachyramphus marmoratus marmoratus to Brachyramphus marmoratus; and
    (5) Whether we could improve or modify our approach to revising 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section. Finally, we will not consider hand-delivered 
comments that we do not receive, or mailed comments that are not 
postmarked, by the date specified in the DATES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
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.
    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, or by 
appointment during normal business hours at the U.S. Fish and Wildlife 
Service, Western Washington Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT). Maps of the proposed revised critical habitat are 
also available on the Internet at http://www.fws.gov/westwafwo/.

Background

    The final rule designating critical habitat for the marbled 
murrelet was published in the Federal Register on May 24, 1996 (61 FR 
26256), and has been posted under the ``Supporting Documents'' section 
for this docket in the Federal eRulemaking Portal: http://
www.regulations.gov at Docket Number FWS-R1-ES-2008-0079. It is our 
intent to discuss only those topics directly

[[Page 44679]]

relevant to the proposed revision of critical habitat in this proposed 
rule.
    The marbled murrelet is a small seabird of the Alcidae family. The 
marbled murrelet's breeding range extends from Bristol Bay, Alaska, 
south to the Aleutian Archipelago; northeast to Cook Inlet, Kodiak 
Island, Kenai Peninsula and Prince William Sound; south along the coast 
through the Alexander Archipelago of Alaska, British Columbia, 
Washington, and Oregon; to northern Monterey Bay in central California. 
Birds winter throughout the breeding range and occur in small numbers 
off southern California. Marbled murrelets spend most of their lives in 
the marine environment where they forage in near-shore areas and 
consume a diversity of prey species, including small fish and 
invertebrates. In their terrestrial environment, the presence of 
platforms (large branches or deformities) used for nesting is the most 
important characteristic of their nesting habitat. Marbled murrelet 
habitat use during the breeding season is positively associated with 
the presence and abundance of mature and old-growth forests, large core 
areas of old-growth, low amounts of edge habitat, reduced habitat 
fragmentation, proximity to the marine environment, and forests that 
are increasing in stand age and height.

Previous Federal Actions

    For additional information on previous Federal actions concerning 
marbled murrelet, refer to the final listing rule published in the 
Federal Register on October 1, 1992 (57 FR 45328), and the final rule 
designating critical habitat published in the Federal Register on May 
24, 1996 (61 FR 26256). In the final critical habitat rule, we 
designated 3,887,800 ac (1,573,340 ha) of critical habitat in 32 units 
on Federal and non-Federal lands. On September 24, 1997, we completed 
the Recovery Plan for the marbled murrelet in Washington, Oregon, and 
California (USFWS 1997). On January 13, 2003, we entered into a 
settlement agreement with the American Forest Resource Council and the 
Western Council of Industrial Workers, whereby we agreed to review the 
marbled murrelet critical habitat designation and make any revisions 
deemed appropriate after a revised consideration of economic and any 
other relevant impacts of designation. On April 21, 2003, we published 
a notice initiating a 5-year review of the marbled murrelet (68 FR 
19569), and published a second information request for the 5-year 
review on July 25, 2003 (68 FR 44093). The 5-year review evaluation 
report was finished in March 2004 (McShane et al. 2004), and the 5-year 
review was completed on August 31, 2004. On September 12, 2006, we 
published a proposed revision to critical habitat for the marbled 
murrelet, which included adjustments to the original designation and 
proposed several exclusions under section 4(b)(2) of the Act (71 FR 
53838). On June 26, 2007, we published a notice of availability of a 
draft economic analysis (72 FR 35025) related to the September 12, 
2006, proposed critical habitat revision (71 FR 53838). On March 6, 
2008, we published a notice in the Federal Register (73 FR 12067) 
stating that the critical habitat for marbled murrelet should not be 
revised at that time, which concluded our obligations under the 
settlement agreement.
    We found that the proposed revision to marbled murrelet critical 
habitat should not be made due to uncertainties regarding Bureau of 
Land Management (BLM) revisions to its District Resource Management 
Plans in western Oregon. While the BLM is still revising its District 
Resource Management Plans in western Oregon, we have determined that 
there are a few areas that, due to new information that is the best 
available information, we believe do not meet the definition of 
critical habitat. Therefore, we are proposing the revisions discussed 
below to the 1996 critical habitat designation.

Taxonomy

    Two subspecies of the marbled murrelet were previously recognized, 
the North American murrelet (Brachyramphus marmoratus marmoratus) and 
the Asiatic murrelet (B. marmoratus perdix). New published information 
suggests that the Asiatic murrelet is a distinct species (Friesen et 
al. 1996, 2005), and the American Ornithologists' Union officially 
recognized the long-billed murrelet (B. perdix) and the marbled 
murrelet (B. marmoratus) as distinct species in the ``Forty-first 
Supplement to the Checklist of North American Birds'' (American 
Ornithologists' Union 1997). Therefore, in this rule we are proposing 
to revise 50 CFR 17.11 to adopt the taxonomic clarification for the 
marbled murrelet to reflect the change from Brachyramphus marmoratus 
marmoratus to Brachyramphus marmoratus.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by a 
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 a 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means the use 
of all methods and procedures that are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided under the Act are no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing activities that result in the destruction or adverse 
modification of critical habitat. Section 7 of the Act requires 
consultation on Federal actions that may affect critical habitat. The 
designation of critical habitat does not affect land ownership or 
establish a refuge, wilderness, reserve, preserve, or other 
conservation area. Such designation does not allow the government or 
public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by the 
landowner. Where the landowner seeks or requests Federal agency funding 
or authorization of an activity that may affect a listed species or 
critical habitat, the consultation requirements of section 7 would 
apply. However, even in the event of a destruction or adverse 
modification finding, the landowner's obligation is not to restore or 
recover the species, but to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of critical 
habitat.
    For inclusion in a critical habitat designation, habitat within the 
geographical area occupied by the species at the time it was listed 
must contain features that are essential to the conservation of the 
species. Critical habitat designations identify to the extent known 
using the best scientific data available, habitat areas that provide 
essential life cycle needs of the species (areas on which are found the 
primary constituent elements, as defined at 50 CFR 424.12(b)). Occupied 
habitat that contains features essential to the conservation of the 
species meets the definition of critical habitat only if those features 
may require special management considerations or

[[Page 44680]]

protection. Under the Act, we can designate unoccupied areas as 
critical habitat only when we determine that the best available 
scientific data demonstrate that the designation of that area is 
essential to the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be proposed as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include 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, or other unpublished materials and expert opinion or 
personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include allofthe habitat areas that we may 
eventually determine, based on scientific data not now available to the 
Service, 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 required for 
recovery of the species.
    Areas that support populations, but are outside the critical 
habitat designation, may continue to be subject to conservation actions 
we implement under section 7(a)(1) of the Act. They are also subject to 
the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available scientific 
information at the time of the agency action. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. 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 to these planning efforts calls 
for a different outcome.

Methods

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to determine areas occupied at the time of 
listing that contain the features essential to the conservation of the 
marbled murrelet. On April 21, 2003, we published a notice initiating a 
5-year review of the marbled murrelet (68 FR 19569), and on July 25, 
2003, we published a request for additional information related to that 
review (68 FR 44093). An evaluation report summarizing the biological, 
ecological, and population information on the marbled murrelet was 
completed in March 2004 (McShane et al. 2004). That report also 
evaluated current threats and how they may have changed since the 
species was listed. The 5-year status review was completed on August 
31, 2004. We also reviewed the scientific data and other information 
that was used to finalize the 1996 critical habitat designation, which 
included research published in peer-reviewed articles, agency reports, 
unpublished data, and various Geographic Information System (GIS) data 
layers (e.g., land cover type information, land ownership information, 
topographic information). We reviewed the conservation needs of the 
marbled murrelet described in the recovery plan (USFWS 1997), and 
considered new scientific information and data that were available from 
State, Federal, and Tribal agencies, as well as academia and private 
organizations.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and the 
regulations at 50 CFR 424.12(b), in determining which areas occupied at 
the time of listing to propose as critical habitat, we consider the 
physical and biological features that are essential to the conservation 
of the species to be the primary constituent elements laid out in the 
appropriate quantity and spatial arrangement for conservation of the 
species. These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We derive the specific PCEs required for the marbled murrelet from 
the biological needs of the species as described in the Background 
section of the final rule designating critical habitat for the marbled 
murrelet. The PCEs identified in the May 24, 1996, final critical 
habitat designation (61 FR 26254) have not been revised for purposes of 
this proposal, and remain applicable to this proposed revision of 
critical habitat for the marbled murrelet.

Criteria Used To Identify Critical Habitat

    The criteria used to identify critical habitat areas described in 
the May 24, 1996, Federal Register remain applicable to this proposed 
revision of critical habitat for the marbled murrelet. These include 
suitable nesting habitat, information on presence/absence and 
occupancy, proximity to marine foraging habitat, large contiguous 
blocks of nesting habitat, rangewide distribution, and adequacy of 
existing protection and management (61 FR 26265).

Summary of Changes From Previously Designated Critical Habitat

    Approximately 254,070 ac (102,820 ha) of critical habitat that was 
designated in the May 24, 1996, final rule is being proposed for 
removal under this revision:
    (1) Critical habitat boundaries in southern Oregon and northern 
California would be revised based on extensive studies demonstrating 
that the distribution of likely nesting birds is not as far inland as 
delineated in 1996. Approximately 191,370 ac (77,450 ha) of critical 
habitat would be removed from the designation based on this new 
information;
    (2) Approximately 62,700 ac (25,370 ha) of critical habitat 
designated farther than 35 miles (mi) (56.3 kilometers (km)) from the 
coast would be removed in Douglas and Lane counties, Oregon. These 
areas do not meet the criteria used to identify critical habitat in the 
1996 designation, specifically the proximity to marine foraging 
habitat. Removing these acres from the designation would conform to the 
marbled murrelet recovery plan's

[[Page 44681]]

recommendation for protection of suitable nesting habitat within 35 mi 
(56.3 km) of the Pacific Ocean shoreline (USFWS 1997, p. 127, 131). 
This area is where the majority of known occupied marbled murrelet 
sites are found in Oregon (USFWS 1997, pp. 127, 131) ;
    (3) We are using a more efficient method of providing legal 
descriptions of critical habitat for the specific areas proposed in 
this rule. Instead of using the Public Land Survey System (e.g., 
identification of boundaries using township and range information), we 
are presenting UTM (Universal Transverse Mercator) data points 
generated through GIS (Geographic Information System) mapping. While we 
are providing maps of the affected units, we are not including the 
textual descriptions in this proposed rule; these descriptions will be 
provided in the final rule revising designated critical habitat for the 
marbled murrelet.

Proposed Revised Critical Habitat Designation

    We are proposing to revise the 1996 final designation of critical 
habitat for the marbled murrelet to reflect the removal of 3 critical 
habitat units and revision of 12 critical habitat units totaling 
approximately 254,070 ac (102,820 ha) as follows:
    Approximately 191,370 ac (77,450 ha) in zone 2 in northern 
California and southern Oregon would be removed where extensive surveys 
have demonstrated marbled murrelets are very unlikely to be found 
(Hunter et al. 1997, pp. 16-25; Schmidt et al. 2000, pp. 16-22; U.S. 
Forest Service and Bureau of Land Management 2002, p. 16.). Zone 2 
includes areas from 35 miles (56.3 km) to 50 miles (80.5 km) from 
marine environments (FEMAT 1993, p. IV-24). Both of these studies 
acknowledge that it is possible that marbled murrelets may occasionally 
use some portion of the study areas; however, if the species does 
occur, the number of individuals is probably very low. Accordingly, it 
appears that the habitat in these areas does not contain the physical 
and biological features in the necessary spatial configuration that is 
essential for the conservation of the species. Therefore, we believe 
these areas do not meet the definition of critical habitat.
    Approximately 62,700 ac (25,370 ha) of critical habitat in Douglas 
and Lane Counties, Oregon, would be removed where critical habitat was 
designated farther than 35 miles (56.3 km) from the coast. These areas 
do not meet the criteria used to identify critical habitat in the 1996 
designation, specifically the proximity to marine foraging habitat. 
This action would be consistent with the marbled murrelet working team 
recommendations to the Forest Ecosystem Management Assessment Team 
(FEMAT) for the majority of occupied sites in Oregon (FEMAT 1993, p. 
IV-23). This proposal would also better conform with the marbled 
murrelet recovery plan recommendations, by limiting critical habitat to 
the areas where the majority of known occupied murrelet sites are found 
(USFWS 1997, p. 127, 131).
    Areas that would be removed from the 1996 critical habitat 
designation are in Douglas and Lane counties, Oregon (inland of Coos 
Bay, Oregon), and in northern California and southern Oregon. All other 
critical habitat units that were designated in the May 24, 1996, final 
rule contain the physical and biological features considered essential 
to the conservation of the species.
    Other than minor adjustments and/or those units specifically 
identified in this proposed rule, where a critical habitat unit 
includes Federal lands within the boundaries of a Late Successional 
Reserve (LSR) established by the Northwest Forest Plan, the areas 
included within the LSR boundaries as they existed on May 24, 1996, 
remain designated as critical habitat. The critical habitat areas 
described below reflect our current best assessment of areas that no 
longer meet the definition of critical habitat for the marbled murrelet 
in Zone 2. To better understand the location of these proposed areas, 
refer to the maps included in this proposed rule or at our Western 
Washington Field Office's internet site at http://www.fws.gov/
westwafwo/.

              TABLE 1--Areas Proposed for Removal by State
------------------------------------------------------------------------
                                                   Areas Removed from
                                                   Designated Critical
                     Units                               Habitat
                                               -------------------------
                                                   Acres       Hectares
------------------------------------------------------------------------
California                                          143,487       58,068
------------------------------------------------------------------------
Oregon                                              110,585       44,752
------------------------------------------------------------------------
Washington                                                0            0
------------------------------------------------------------------------
TOTAL                                               254,071      102,821
------------------------------------------------------------------------


                   TABLE 2--Areas Proposed for Removal by Critical Habitat Unit and Ownership
----------------------------------------------------------------------------------------------------------------
 Critical Habitat Unit Name from 1996
             Designation                      Ownership              Acres Removed           Hectares Removed
----------------------------------------------------------------------------------------------------------------
CA-01d                                                    USFS                   19,363                    7,836
----------------------------------------------------------------------------------------------------------------
CA-01e                                                    USFS                   28,168                   11,400
----------------------------------------------------------------------------------------------------------------
CA-10a                                                    USFS                   35,935                   14,543
----------------------------------------------------------------------------------------------------------------
CA-11b                                                    USFS                    8,540                    3,456
----------------------------------------------------------------------------------------------------------------
CA-11c                                                     BLM                    2,644                    1,070
----------------------------------------------------------------------------------------------------------------
CA-11d                                                    USFS                   61,558                   24,912
----------------------------------------------------------------------------------------------------------------
OR-03-c                                                    BLM                      146                       59
----------------------------------------------------------------------------------------------------------------
OR-04-e                                                    BLM                    6,557                    2,654
----------------------------------------------------------------------------------------------------------------
OR-04-f                                                    BLM                   20,736                    8,391
----------------------------------------------------------------------------------------------------------------
OR-04-g                                                    BLM                    2,780                    1,125
----------------------------------------------------------------------------------------------------------------
OR-04-i                                                    BLM                   25,616                   10,366
----------------------------------------------------------------------------------------------------------------
OR-04-j                                                    BLM                      480                      194
----------------------------------------------------------------------------------------------------------------

[[Page 44682]]

 
OR-06-d                                                    BLM                    9,170                    3,711
----------------------------------------------------------------------------------------------------------------
OR-07-d                                                   USFS                   26,524                   10,734
----------------------------------------------------------------------------------------------------------------
OR-07-f                                                    BLM                    1,032                      418
----------------------------------------------------------------------------------------------------------------
OR-07-f                                                   USFS                    4,821                    1,951
----------------------------------------------------------------------------------------------------------------
                                                        TOTALS                  254,071                  102,821
----------------------------------------------------------------------------------------------------------------

    California. The following designated critical habitat units are 
being proposed for removal or revision from the 1996 designation, based 
on extensive surveys that have demonstrated murrelets are very unlikely 
to be found using the area. These units or portions thereof no longer 
meet the definition of critical habitat: CA-01-d (portion), CA-01-e 
(portion), CA-10-a (entire), CA-11-b (portion), CA-11-c (entire), and 
CA-11-d (entire).
    Oregon. The following designated critical habitat units are being 
proposed for removal or revision from the 1996 critical habitat 
designation, based on extensive surveys that have demonstrated 
murrelets are very unlikely to be found using the area. These units or 
portions thereof no longer meet the definition of critical habitat 
where they extend into Oregon: CA-01-e (entire) and CA-10-a (entire), 
and units OR-04-g (portion), OR-07-d (portion), and OR-07-f (portion).
    Oregon. The following critical habitat units in Douglas and Lane 
Counties, Oregon have been proposed for removal or revision where 
critical habitat was designated farther than 35 miles inland from the 
coast, based on the FEMAT murrelet zone 1 line. The marbled murrelet 
recovery plan, completed in 1997 (USFWS 1997), recommended limiting 
critical habitat to areas less than 35 miles from the coast, where the 
majority of known occupied murrelet sites are found. These units or 
portions thereof no longer meet the definition of critical habitat: OR-
03-c (portion), OR-04-e (portion), OR-04-f (portion), OR-04-i 
(portion), OR-04-j (portion) and OR-06-d (portion).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the 5th and 9th Circuit Court of Appeals have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 
F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service et al. 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely 
on this regulatory definition when analyzing whether an action is 
likely to destroy or adversely modify critical habitat. Under the 
statutory provisions of the Act, we determine destruction or adverse 
modification on the basis of whether, with implementation of the 
proposed Federal action, the affected critical habitat would remain 
functional (or retain the current ability for the PCEs to be 
functionally established) to serve its intended conservation role for 
the species.
    If a species is listed or critical habitat is designated, section 
7(a) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
we document compliance with the requirements of section 7(a)(2) through 
our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``Reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
     Can be implemented in a manner consistent with the 
intended purpose of the action,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies may sometimes need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the

[[Page 44683]]

Director believes would avoid the destruction or adverse modification 
of critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Federal activities that may affect marbled murrelet or its 
designated critical habitat will require section 7 consultation under 
the Act. Activities on State, Tribal, local or private lands requiring 
a Federal permit (such as a permit from the U.S. Army Corps of 
Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et 
seq.) or a permit from us under section 10 of the Act), or involving 
some other Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) are subject to the section 7 consultation 
process. Federal actions not affecting marbled murrelet or its 
designated critical habitat, and actions on State, Tribal, local or 
private lands that are not federally funded, authorized, or under 
permit, do not require section 7 consultations. Currently designated 
marbled murrelet critical habitat (see 50 CFR 17.95(b)) will remain 
designated critical habitat until this proposal is finalized. 
Therefore, any Federal activities that may affect currently designated 
critical habitat will be subject to section 7 consultation 
requirements.

Application of the Adverse Modification Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species, or would retain its current ability 
for the PCEs to be functionally established. Activities that may 
destroy or adversely modify critical habitat are those that alter the 
PCEs to an extent that appreciably reduces the conservation value of 
critical habitat for the marbled murrelet.
    The range of the marbled murrelet has been subdivided by the 
Recovery Team into six Marbled Murrelet Conservation Zones (USFWS 1997, 
pp. 125-130), based on the need for potentially different recovery 
actions in various portions of the marbled murrelet's range, and the 
need to maintain well-distributed populations. These zones include 
Puget Sound (Zone 1), Western Washington Coast Range (Zone 2), Oregon 
Coast Range (Zone 3), Siskiyou Coast Range (Zone 4), Mendocino (Zone 
5), and the Santa Cruz Mountains (Zone 6). Marbled murrelets within the 
conservation zones are likely to interact across zone boundaries at 
some level. Generally, the conservation role of marbled murrelet 
critical habitat units is to support nesting, roosting, and other 
normal behaviors (61 FR 26256). It is also necessary to produce and 
maintain viable marbled murrelet populations that are well distributed 
throughout the respective Conservation Zones (USFWS 1997 p. 116). 
Specific goals are described in the recovery plan, but generally 
include maintaining occupied sites and suitable nesting habitat for 
marbled murrelets. Because it will take 50 or more years to develop new 
nesting habitat, the short-term focus is on retaining and/or increasing 
terrestrial habitat (USFWS 1997 p. vi).
    For a wide-ranging species such as the marbled murrelet, where 
multiple critical habitat units are designated, each unit has a 
Regional Conservation Zone (RCZ) and range-wide role in contributing to 
the conservation of the species. The basis for an adverse modification 
opinion would be whether a proposed action appreciably reduces the 
ability of critical habitat to remain functional to serve its 
identified conservation role at the RCZ and rangewide levels. Thus, an 
adverse modification finding would be based upon a broader inquiry than 
an assessment of adverse effects at the local unit level. The loss or 
modification of portions of critical habitat to an extent that the 
affected unit(s) would not be likely to adequately support sufficient 
numbers of nesting murrelets may represent destruction or adverse 
modification of marbled murrelet critical habitat.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that are carried out, funded, or authorized by a Federal 
agency and may affect marbled murrelet critical habitat require 
consultation on its effects to marbled murrelet critical habitat. 
Activities in critical habitat for the marbled murrelet vary in degree 
of impact on critical habitat from those with no effect, to those with 
short-term adverse effects but long-term beneficial effects, to those 
with adverse affects but that do not destroy or adversely modify 
critical habitat, and finally to those that may destroy or adversely 
modify critical habitat. In all cases, the current condition of the 
critical habitat, both locally and rangewide, and specific parameters 
of the action will determine the level of effect.
    A variety of activities that disturb or remove PCEs may adversely 
affect, though not necessarily ``adversely modify'', marbled murrelet 
critical habitat as that term is used in section 7 consultations. These 
include, but are not limited to:
    (1) Removal, modification, or fragmentation of forested areas that 
directly impact nesting structures, nesting substrate, and the vertical 
and horizontal cover provided by the surrounding forest. Fragmentation 
of forested areas can result in habitat isolation and increased edge, 
which negatively impacts the quality of the remaining nesting habitat 
primarily through increased predation; modification of the 
microclimate; and potential windthrow of nest trees. Any action 
resulting in the removal of a potential nest tree is likely to result 
in an adverse effect to critical habitat. Federal actions primarily 
affecting marbled murrelet nesting habitat include timber harvest, 
salvage logging, and hazard tree removal. Indirect harvest-related 
effects of Federal actions could include windthrow caused by harvest. 
In addition, road construction, recreational or other developments, and 
fuels reduction projects may also result in these types of effects.
    (2) New and existing human activity, including recreation, 
agriculture, and urbanization, adjacent to and within forested areas 
can result in loss or modification of the PCEs. Interior forest nests 
in contiguous stands far from human activity appear to experience the 
least predation, and public lands that are easily accessible have 
higher levels of human use, with resultant activities that are 
attractive to corvids (Marzluff et al. 1996). The other factor which 
appears to increase predation rates is higher levels of landscape 
fragmentation (Marzluff et al. 1996).
    The following activities may have adverse effects on murrelet 
critical habitat PCEs:
    (1) Removal or degradation of individual trees with potential 
nesting platforms, or the nest platforms themselves, that results in a 
significant decrease in the value of the trees for future nesting use. 
Moss may be an important component of nesting platforms in some areas.
    (2) Removal or degradation of trees adjacent to trees with 
potential nesting platforms that provide habitat elements essential to 
the suitability of the potential nest tree or platform, such as

[[Page 44684]]

trees providing cover from weather or predators.
    (3) Removal or degradation of forested areas with a canopy height 
of at least 1/2 the site-potential tree height and, regardless of 
contiguity, within 0.8 km (0.5 mi) of individual trees containing 
potential nest platforms. This includes removal or degradation of trees 
currently unsuitable for nesting that contribute to the structure/
integrity of the potential nest area (i.e., trees that contribute to 
the canopy of the forested area). These trees provide the canopy, stand 
conditions, and protection from predation important for marbled 
murrelet nesting.
    Beneficial actions may also adversely affect, but would not be 
expected to adversely modify, critical habitat, since they would 
promote the development or improve the functional quality of critical 
habitat for the marbled murrelet. This could include: (1) Thinning 
under potential nest trees to protect the tree's nesting structures 
from competing trees, which would help maintain suitable nesting 
habitat; (2) Thinning in younger stands to speed their attainment of 1/
2 site-potential tree height in the vicinity of potential nest trees, 
which would benefit the function of marbled murrelet critical habitat 
by decreasing fragmentation, maintaining microclimate of potential nest 
trees, and reducing the effects of predation. Actions that promote the 
development of potential nest trees, while maintaining the integrity of 
the forest stand, would also be beneficial to the function of critical 
habitat by increasing future nesting habitat, and providing replacement 
habitat for existing nest stands that may be lost to such natural 
events as wildfire and windthrow.
    Some thinning activity may have short-term adverse effects but 
long-term beneficial impacts. For example, actions in existing critical 
habitat designed to create canopy diversity or promote the development 
of future nest trees may open the canopy for a short time, resulting in 
some potential increase in predation. However, if such effects are 
short-lived, current nesting habitat is not removed, and the 
prescription speeds the development of suitable nest trees where such 
trees are limited, the result may be a long-term improvement in 
critical habitat condition.
    For a proposed action to result in destruction or adverse 
modification of critical habitat, it must affect the designated 
critical habitat to an extent that the affected unit(s) no longer 
serves its intended conservation role for the species or no longer 
retains its current ability for the primary constituent elements to be 
functionally established. Proposed actions requiring a section 7 
consultation must be evaluated individually, in light of the baseline 
condition of the critical habitat unit and RCZ, unique history of the 
area, and effect of the impact on the critical habitat unit relative to 
its regional and range-wide role in the conservation of the species. 
The loss or substantial reduction of viable populations throughout one 
or more RCZs, or even a major part of an RCZ, could lead to genetic and 
demographic isolation of parts of the population.
    All of the units designated as critical habitat contain features 
essential to the conservation of the marbled murrelet. All units are 
within the geographic range of the species, were occupied or likely to 
be occupied by the species at the time of listing, and are likely to be 
used by the marbled murrelet. Federal agencies already consult on 
activities in areas currently occupied by the marbled murrelet, or if 
the species may be affected by the action, to ensure that their actions 
do not jeopardize the continued existence of the marbled murrelet.
    Activities that have little to no effect in one critical habitat 
unit or RCZ may cause serious effects in another, due to differences in 
existing conditions and the conservation function of critical habitat. 
Therefore, the Service cannot provide a detailed description of the 
threshold for future actions that would result in the destruction or 
adverse modification of critical habitat applicable throughout the 
range of the designated critical habitat in this proposed rule. 
However, we fully anticipate that some projects may be proposed in 
critical habitat that will adversely affect PCEs, and, in some cases, 
may include removal of stands of 1/2 site-potential tree height while 
not reaching the level of destruction or adverse modification of 
critical habitat. For example, the harvest of relatively small stands 
of trees that contribute to the function of PCEs (e.g., stands with a 
canopy of 1/2 site-potential tree height within 0.5 mile (0.8 km) of a 
potential nest tree) in a critical habitat unit with a large number of 
potential nest trees and a high proportion of surrounding forest cover 
most likely will not appreciably reduce the ability of critical habitat 
to remain functional at the RCZ and rangewide scales.
    Actions that adversely affect forest stands that are not within 0.5 
mile (0.8 km) of individual trees with potential nesting platforms 
would probably not adversely modify critical habitat, even if they 
occur within the boundaries of the area designated as critical habitat. 
Activities that do not affect the PCEs or the ability for the PCEs to 
be functionally established are unlikely to be affected by the 
designation. However, even though an action may not adversely affect or 
adversely modify critical habitat, it may still affect marbled 
murrelets (e.g., through disturbance) and may, therefore, still be 
subject to consultation under section 7 of the Act.
    If you have questions regarding whether specific activities may 
constitute destruction or adverse modification of critical habitat, 
contact a Field Supervisor listed under ``FOR FURTHER INFORMATION 
CONTACT``.

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that, ``[T]he Secretary shall 
designate critical habitat, and make revisions thereto, under 
subsection (a)(3) 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.'' We have considered the potential 
economic impacts of this proposed critical habitat revision based on 
information in our 2007 economic analysis (described in 72 FR 35025), 
and are not proposing to exclude any areas under section 4(b)(2) 
because of economic, national security, or other considerations. 
However, to ensure our final determination is based on the best 
available information, we are hereby soliciting comments on any 
foreseeable economic, national security, or other potential impacts 
resulting from this proposed revised designation of critical habitat, 
and in particular, any potential impacts on small entities, and whether 
the benefits of exclusion of a particular area outs weighs the benefits 
of inclusion.

Application of Section 4(a)(3)(B)(i) of the Act

    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) provides: ``The Secretary shall not designate 
as critical habitat any lands or other geographical areas owned or 
controlled by the Department of Defense, or designated for its use, 
that are subject to an integrated natural resources management plan 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such plan provides a benefit to 
the species for which critical habitat is proposed for designation.'' 
There are no areas owned or controlled

[[Page 44685]]

by the Department of Defense within the areas being proposed for this 
revised critical habitat designation.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we are obtaining the expert 
opinions of at least three appropriate independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our revised critical habitat designation is based on 
scientifically sound data, assumptions, and analyses. We have invited 
these peer reviewers to comment during this public comment period on 
our specific assumptions and conclusions in this proposed designation 
of revised critical habitat.
    We will consider all comments and information we receive during 
this comment period on this proposed rule during our preparation of a 
final determination. Accordingly, our final decision may differ from 
this proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal 
if we receive any requests for hearings. We must receive your request 
for a public hearing within 45 days after the date of this Federal 
Register publication. Send your request to an address listed in FOR 
FURTHER INFORMATION CONTACT. We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the first hearing.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant under Executive Order (E.O.) 12866. OMB bases 
its determination upon the following four criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (4) Whether the rule raises novel legal or policy issues.

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 
(SBREFA) of 1996), whenever an agency must 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 (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a statement of the factual basis 
for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities.
    This proposed revision would result in an approximate 254,070 acre 
(102,820 ha) reduction in the critical habitat acreage that was 
designated in the May 24, 1996, final rule (61 FR 26256). No critical 
habitat will be added under this proposed revision, and the reductions 
occur exclusively on Federal lands. Accordingly, we do not believe that 
it will have a significant economic impact on a substantial number of 
small entities.

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 findings:
    (a) This rule will 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 [T]ribal 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; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) This proposed revision would result in an approximate 254,070 
ac (102,820 ha) reduction in the critical habitat acreage that was 
designated in the May 24, 1996, final rule (61 FR 26256). All of these 
acres are on Federal lands. Accordingly, we do not believe that it will 
significantly or uniquely affect small governments because small 
governments will be affected only to the extent that any programs 
having Federal funds, permits, or other authorized activities must 
ensure that their actions will not adversely affect the critical 
habitat. This proposed revision would remove a portion of the 
designated critical habitat, removing the need to consult on effects to 
critical habitat for those removed areas. Therefore, a Small Government 
Agency Plan is not required.

[[Page 44686]]

Takings

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of this revised designation 
of critical habitat for the marbled murrelet in a takings implications 
assessment. The takings implications assessment concludes that this 
revised designation of critical habitat for the marbled murrelet does 
not pose additional takings implications for lands within or affected 
by the original 1996 designation.

Federalism

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. We believe that the revised designation of critical habitat 
for the marbled murrelet will have little incremental impact on State 
and local governments and their activities, since the removal of 
254,070 ac (102,820 ha) of currently designated critical habitat would 
impose no additional restrictions beyond any that may already be in 
place.

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform),this rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have issued this proposed 
critical habitat revision in accordance with the provisions of the Act. 
This proposed rule uses standard property descriptions and identifies 
the primary constituent elements within the designated areas to assist 
the public in understanding the habitat needs of the marbled murrelet.

Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    It is our position that, outside the jurisdiction of the United 
States Court of Appeals for the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by 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 assertion was 
upheld by the United States Court of Appeals for the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 
516 U.S. 1042 (1996).

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:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible.

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), E.O. 13175 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.
    This proposed revision would result in an approximate 254,070 ac 
(102,820 ha) reduction in the critical habitat acreage that was 
designated in the May 24, 1996, final rule (61 FR 26256). None of the 
areas proposed for removal are on tribal lands.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. E.O. 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
We do not expect this proposed rule to significantly affect energy 
supplies, distribution, or use, since it would involve removing 
approximately 254,070 ac (102,820 ha) of critical habitat from the 
existing critical habitat designation. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

References Cited

    A complete list of all references cited in this rulemaking is 
available onl