Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Marbled Murrelet, 61599-61621 [2011-25583]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 76, Number 193 (Wednesday, October 5, 2011)]
[Rules and Regulations]
[Pages 61599-61621]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25583]


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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-AW84


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising 
designated critical habitat for marbled murrelet (Brachyramphus 
marmoratus marmoratus) pursuant to 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 revising the designated 
critical habitat for the marbled murrelet by removing approximately 
189,671 ac (76,757 ha) in northern California and southern Oregon from 
the 1996 designation, based on new information indicating that these 
areas do not meet the definition of critical habitat. The areas being 
removed from the 1996 designation in northern California are within 
Inland Zone 2, where we have no historical or current survey records 
documenting marbled murrelet presence. Intensive surveys in southern 
Oregon indicate the inland distribution of the marbled murrelet is 
strongly associated with the hemlock/tanoak habitat zone, rather than 
distance from the coast. Accordingly, the areas being removed in 
southern Oregon are limited to those areas not associated with the 
hemlock/tanoak zone. The areas being removed are not considered 
essential for the conservation of the species. Approximately 3,698,100 
ac (1,497,000 ha) of critical habitat is now designated for the marbled 
murrelet. In this rule, we are also finalizing the taxonomic revision 
of the scientific name of the marbled murrelet from Brachyramphus 
marmoratus marmoratus to Brachyramphus marmoratus.

DATES: This rule becomes effective on November 4, 2011.

ADDRESSES: The final rule and map of critical habitat will be available 
on the Internet at https://www.regulations.gov and https://www.fws.gov/wafwo/. Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
at https://www.regulations.gov or for public inspection, by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
Washington Fish and Wildlife Office, 510 Desmond Drive SE, Suite 102, 
Lacey, WA 98503-1273, telephone 360-753-9440, facsimile 360-753-9008.

FOR FURTHER INFORMATION CONTACT: Ken Berg, Field Supervisor, U.S. Fish 
and Wildlife Service, at the above address, (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 Nancy Finley, 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:

Background

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

Species Description, Life History, Distribution, Ecology, and Habitat

    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 in trees 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.

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

[[Page 61600]]

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 revising 50 
CFR 17.11 to adopt the taxonomic clarification for the marbled murrelet 
to reflect the change from Brachyramphus marmoratus marmoratus to 
Brachyramphus marmoratus.

Previous Federal Actions

    For additional information on previous Federal actions concerning 
the marbled murrelet, refer to the final listing rule published in the 
Federal Register on October 1, 1992 (57 FR 45328), the final rule 
designating critical habitat published in the Federal Register on May 
24, 1996 (61 FR 26256), and the proposed rule published in the Federal 
Register on July 31, 2008 (73 FR 44678). In the 1996 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 a Recovery Plan for the marbled murrelet in 
Washington, Oregon, and California (Service 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 due to uncertainties regarding Bureau of 
Land Management (BLM) revisions to its District Resource Management 
Plans in western Oregon, and this notice fulfilled our obligations 
under the settlement agreement.
    On July 31, 2008, we published a proposed rule to revise currently 
designated critical habitat for the marbled murrelet by removing 
approximately 254,070 acres (ac) (102,820 hectares (ha)) in northern 
California and Oregon from the 1996 designation (73 FR 44678). A 
revised 5-year review was completed on June 12, 2009. On January 21, 
2010, in response to a petition to delist the marbled murrelet, we 
published a notice in the Federal Register (75 FR 3424) determining 
that removing the murrelet from the Endangered Species List was not 
warranted. We also found that the Washington/Oregon/California 
population of the murrelet is a valid distinct population segment (DPS) 
in accordance with the discreteness and significance criteria in our 
1996 DPS policy (61 FR 4722; February 7, 1996) and concluded that the 
species continues to meet the definition of a threatened species under 
the ESA.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
revised designation of critical habitat for the marbled murrelet in a 
proposed rule published on July 31, 2008 (73 FR 44678). During the 
comment period, which closed on August 30, 2008, we received 42 
comments from organizations or individuals directly addressing the 
proposed critical habitat designation. Through template campaigns 
sponsored by The Wildlife Society and Conservation Northwest, we 
received an additional 2,825 comments.
    The comment period was reopened on February 11, 2009 (74 FR 6852), 
and closed on March 13, 2009, during which we received 14 comments, 
which included 4 peer reviewers, 1 Federal agency, and 9 organizations 
or individuals. Nearly all commenters opposed the revision or reduction 
of some aspects of the designation of critical habitat for the marbled 
murrelet.
    Several comments we received were outside the scope of the proposed 
rule, which was limited to (1) The proposed removal of approximately 
191,000 ac (77,295 ha) of critical habitat in northern California and 
southern Oregon based on the very low likelihood of marbled murrelet 
occurrence as is discussed in further detail below; (2) the proposed 
removal of approximately 63,000 ac (25,495 ha) of critical habitat in 
Douglas and Lane Counties, Oregon, that were designated farther than 35 
miles inland, based on criteria identified in the 1997 Recovery Plan 
for the Marbled Murrelet (Washington, Oregon, and California 
Populations); and (3) the proposed taxonomic revision of the scientific 
name of the marbled murrelet. Examples of comments outside of the scope 
of the proposed rule included:
    (a) Requests that we remove approximately 1,840 ac (744.6 ha) of 
existing critical habitat designated at Naval Radio Station Jim Creek 
in Washington pursuant to section 4(a)(3)(B)(i) of the Act;
    (b) Requests that we designate additional critical habitat in 
certain areas (e.g., southwestern Washington, northwestern Oregon, 
Olympic Adaptive Management Area, Siskiyou and Six Rivers National 
Forests, Redwood National Park, and other areas);
    (c) Requests that we designate marine areas as critical habitat;
    (d) Claims of inconsistency with statutory requirements (e.g., 
occupancy at the time of listing, definition of occupied habitat, 
reliance on 1996 primary constituent elements (PCEs));
    (e) Disagreement with the suitable marbled murrelet habitat acreage 
estimates in Oregon, Washington, and California;
    (f) Recommendations to exclude critical habitat from all Federal 
lands including Wilderness areas and Congressionally withdrawn lands in 
general based on the conservation adequacy of existing management 
plans;
    (g) Requests for the exclusion of Federal lands in northern 
California based on approved management plans;
    (h) Requests that we eliminate overlapping protections for 
Wilderness Designations and Congressional Withdrawal areas in northern 
California; and
    (i) Requests that we update land status records related to critical 
habitat boundaries.
    These comments are beyond the scope of the proposed rule, and some 
would require separate rulemaking to be considered. Accordingly, we 
have not specifically responded to these comments in this final rule.
    Comments within the scope of the proposed rule have been addressed 
in the following summary and have been incorporated into the final rule 
as appropriate. We did not receive any requests for a public hearing.

Peer Review

    In accordance with our policy published in the Federal Register on 
July 1, 1994, (59 FR 34270), we solicited

[[Page 61601]]

opinions from nine knowledgeable individuals with scientific expertise 
that included familiarity with the species, the geographic region in 
which the species occurs, and conservation biology principles. We 
received responses from four of the peer reviewers who were solicited. 
We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding murrelet critical 
habitat. We have addressed peer review comments in the following 
summary and have incorporated them into this final rule as appropriate.
    Several comments refer to inland zone 1 and inland zone 2, which 
are based on the Forest Ecosystem Management Assessment Team (FEMAT) 
murrelet zone lines. For clarification, inland zone 1 extends 10-40 
miles (mi) (16-64 kilometers (km)) inland from the marine environment, 
depending on the particular geographic area involved. The majority of 
murrelet occupied sites and sightings occur in this zone. Inland zone 2 
includes areas further inland from the eastern boundary of inland zone 
1, and is characterized by relatively low numbers of murrelet 
sightings, which is partially a function of few inventories. Specific 
distances for inland zone 2 vary by geographic area (Thomas et al. 1993 
(FEMAT), pp. IV-23-24).

Peer Reviewer Comments

    Comment 1: Each of the four peer reviewers concurred with the 
proposed reclassification of the marbled murrelet to full species 
status. They stated the reclassification of the marbled murrelet to 
full species status is supported by the literature, and that the 
American Ornithologists' Union (the authoritative source for taxonomy 
and nomenclature of birds in North America) recognizes the marbled 
murrelet as a distinct species.
    Our Response: We agree and note there is no disagreement in the 
literature or by the experts on the reclassification of marbled 
murrelet to full species status. We are finalizing the taxonomic 
revision of the scientific name of the marbled murrelet from 
Brachyramphus marmoratus marmoratus to Brachyramphus marmoratus in this 
rule.
    Comment 2: One reviewer stated that the surveys used to determine 
occupancy in the areas proposed for revision were conducted under 
earlier survey protocols requiring fewer visits than the currently 
recognized protocol (Mack et al. 2003, pp. 12-16). Accordingly, the 
results contain a level of uncertainty that, although not egregious, 
should be recognized before a final decision is made. In areas of low 
detections it is difficult for audio/visual surveys to detect single 
birds, whereas the current protocol may have detected additional 
murrelets.
    Our Response: The 2003 Marbled Murrelet Inland Survey Protocol 
(Mack et al. 2003) recommends five survey visits in each of 2 years to 
determine occupancy with an 85.3 percent probability of detecting 
occupancy in a given year. The 2-year intensive survey protocol 
accounts for years where breeding effort is low, resulting in fewer or 
no detections in otherwise occupied stands (Mack et al. 2003, p. 13). 
The probability of detecting occupancy decreases from 85.3 percent to 
79.2 percent in any given year when conducting one less site visit per 
year, which increases the level of uncertainty associated with the 
survey results by approximately 6.1 percent (Mack et al. 2003, p.13). 
The studies we relied on in the areas proposed for revision in 
California, Hunter et al. (1998) and Schmidt et al. (2000), reported on 
surveys conducted across large landscapes in northern California's 
inland zone 2, using the Ralph et al. (1994) murrelet survey protocol. 
This protocol recommended only four survey visits in each of 2 years to 
determine occupancy. We acknowledge the studies we relied on used a 
survey protocol requiring fewer visits than is the current standard. 
However, given the large combined number of surveys (2,218) conducted 
in these studies, the additional/associated project-level surveys that 
have occurred since with no detections, the absence of historical 
records of murrelet presence in inland zone 2 in California based on 
U.S. Forest Service (USFS) and BLM records, and the apparent climatic 
differences between inland zone 2 areas and the closest known occupied 
murrelet sites within inland zone 1, we conclude from the best 
available scientific information that there is a very low likelihood of 
murrelet occupancy within inland zone 2 in California.
    In southern Oregon, Federal agencies undertook a comparable 
evaluation of the probability of marbled murrelet inland habitat use as 
forest types shift from the hemlock/tanoak vegetation zone to the 
mixed-conifer/evergreen vegetation zone (Alegria et al. 2002, pp. 1-
44). This evaluation was based on survey results from the Medford 
District BLM, and the Siskiyou and Rogue River National Forests from 
1988 to 2001 that documented the inland distribution of marbled 
murrelets to be strongly associated with the hemlock/tanoak habitat 
zone, which ranges from 13 to 37 mi (20.9 to 59.5 km) inland from the 
Pacific Ocean. The distribution of survey sites with murrelet presence 
or occupancy occur farther inland where the hemlock/tanoak zone extends 
farther inland, which suggests that forest type influences murrelet 
occurrence, rather than absolute distance from the coast (Alegria et 
al. 2002, p. 15).
    For the purposes of the analysis, marbled murrelet survey areas 
were categorized as western hemlock-tanoak (the primary range of the 
marbled murrelet), a 6.5-mile transition zone east of the primary 
range, and the far inland zones. The statistical modeling evaluated the 
hypothesis that marbled murrelets would be present on no more than 3 
percent (95 percent confidence) of the habitat in the far inland zones. 
The final analyses concluded, with 95 percent confidence, that an even 
smaller proportion (1.2 percent) of the landscape may have murrelet 
presence that was not actually detected. The analysis of 9,795 survey 
visits suggests that murrelets are not present in more than 98 percent 
of the sampled units in the far inland zones (Alegria et al., 2002, pp. 
13-15). Only one distant auditory detection in 4,634 survey visits 
occurred within the area more than 6.5 mi (10.4 km) inland of the 
hemlock/tanoak vegetation type (Alegria et al., 2002, p. 16). 
Accordingly, our interpretation of the most recent data supports a 
determination that, in southern Oregon, murrelet use is strongly 
associated with tanoak/hemlock forest, rather than a 35 miles (56 
kilometers) distance from the Pacific Ocean. The 35-mile (56-km) 
distance identified in the 1997 Marbled Murrelet Recovery Plan was 
based on the best available information before the Service at that 
time. Therefore, based on the best available scientific information, we 
conclude that there is a very low likelihood of murrelet occurrence in 
the area we are removing from critical habitat designation in southern 
Oregon, and, accordingly, impacts to the species in this area would be 
negligible.
    Comment 3: One reviewer asked if radar studies were conducted and 
if so, suggested that we document the results.
    Our Response: We are unaware of any ornithological radar surveys 
conducted in or near the areas proposed for revision in Oregon. In 
California, Schmidt et al. (2000), used ornithological radar 
instruments to survey for murrelets at three sites beyond their study 
area where murrelets had been previously detected far inland. These 
sites include Onion Mountain and Notice Creek within the eastern 
portion of inland zone 1, and Indian Creek within inland zone 2. 
However, murrelets were detected only at the Notice Creek site using 
this method.

[[Page 61602]]

Previous audio-visual detections at Indian Creek have not been 
validated using either audio-visual surveys or ornithological radar. 
Cooper and Blaha (2005, 2006) used ornithological radar to survey five 
sites along Pine Creek on the western boundary of the Hoopa Valley 
Indian Reservation in California (inland zone 1), to confirm murrelet 
presence that had been documented in previous audio-visual surveys. 
Marbled murrelets were detected at two of the sites, approximately 7 
miles west of the inland zone 2 boundary. Although the number of 
ornithological radar surveys in California in or near inland zone 2 is 
limited, the available data are consistent with the results of other 
surveys. Those surveys failed to detect murrelet presence within inland 
zone 2 or the easternmost portion of inland zone 1.
    Comment 4: Two of the four reviewers who commented on the proposed 
removal of critical habitat in Douglas and Lane Counties in Oregon 
considered the rationale behind the revisions to be unsupported by the 
literature or information presented in the proposed rule. One reviewer 
suggested that a more thorough analysis of existing surveys be 
conducted before revising the inland boundary of critical habitat in 
these areas. Another reviewer requested more documentation that a 
majority of occupied sites occur within inland zone 1, and recommended 
that the critical habitat designation in Douglas and Lane Counties in 
Oregon not be revised until all of the existing data are thoroughly 
analyzed and additional systematic surveys have been conducted.
    Our Response: Based on peer review and public comments, we have 
concluded that the proposed revision of critical habitat in Douglas and 
Lane Counties, Oregon, is not adequately supported by the literature 
and that currently available scientific information is inadequate to 
support a revision of critical habitat in this area. Accordingly, 
critical habitat in Lane and Douglas Counties, Oregon, remains 
designated as critical habitat, based on the best available scientific 
information.
    Comment 5: One peer reviewer questioned whether the areas proposed 
for removal are within or outside of the currently occupied area, and 
stated that the failure to detect murrelets does not mean that they do 
not use an area, given the difficulty of surveying this secretive 
species.
    Our Response: See response to peer reviewer Comment 2. Based on the 
detailed statistical analysis of the survey data, and the similarity of 
the areas not surveyed to the areas surveyed immediately to the north 
and south, there is low likelihood that murrelets occupy the areas 
proposed for removal from critical habitat designation in southern 
Oregon and northern California.
    Comment 6: One reviewer pointed out that the habitat proposed for 
removal from critical habitat designation may act as a buffer of sorts 
for currently occupied habitat, particularly where it abuts the eastern 
edge of obviously occupied habitat. Increases in timber harvest or 
recreation in these areas would potentially bring edge effects 
(especially increased numbers of nest predators) closer to occupied 
habitat, and may reduce the suitability of the currently occupied 
habitat. The reviewer stated that maintenance of a buffer is essential 
to the conservation of murrelets in currently occupied habitat.
    Our Response: In northern California, critical habitat remains 
designated over an area that ranges from 15 mi (24 km) to 20 mi (32 km) 
wide, between the west side of inland zone 1 within the redwood 
vegetation type (which contains more than 95 percent of the known 
occupied murrelet sites), and the revised eastern boundary of inland 
zone 1 within the Douglas-fir/tanoak vegetation type. In southern 
Oregon, critical habitat remains designated within a 6.5-mi-wide (10.5-
km-wide) area between large amounts of known occupied murrelet habitat 
within the hemlock/tanoak vegetation type west of inland zone 1, and 
the break in vegetation to the mixed-conifer/evergreen vegetation type 
to the east. On a large landscape scale, these areas are generally 
managed to protect the PCEs of murrelet critical habitat (see Primary 
Constituent Elements below), although they have not been intensively 
surveyed. As a result, there is a significant distance between the 
eastern-most known occupied murrelet sites and the areas being removed 
from critical habitat designation in northern California and southern 
Oregon. These areas, while not ``buffers,'' may help maintain the 
suitability of known nesting habitat by decreasing the potential for 
indirect impacts related to timber harvest activities or increased 
predation.
    Comment 7: One reviewer stated that it is essential to conserve a 
wide range of habitat to increase the chances that a species will be 
able to adapt to dynamic changes in the habitat. In his view, the areas 
proposed for removal from critical habitat represent small and large 
habitat remnants that may provide future refuges from warm 
temperatures, violent coastal storms, disease, invasive competitive 
species or predators, or extensive fire. He stated that both large and 
small fragments of mature, structurally complex forest located away 
from human activity may provide useful nesting habitat that is 
essential to conservation.
    Our Response: On May 24, 1996, we designated 3,887,800 ac 
(1,573.340 ha) of critical habitat on Federal and non-Federal lands in 
Washington, Oregon, and California (61 FR 26256). While this revision 
will remove approximately 189,671 acres (76,760 ha) from the 
designation in Oregon and California, it only affects areas that are 
not essential to the conservation of the species based on the best 
scientific information available (see response to peer review comment 
2). Accordingly, we do not believe the areas that are being removed 
would provide future nesting habitat, refuges from warm temperatures, 
violent coastal storms, disease, invasive competitive species or 
predators, or extensive fire, since these areas are not likely to be 
used by murrelets. The remaining critical habitat designation 
encompasses a wide range of habitat distributed throughout the range of 
the marbled murrelet from the Canadian border through California, and 
inland from the coast, which represents large and small fragments of 
mature, structurally complex forest that are located away from human 
disturbance.
    Comment 8: One reviewer noted that, if critical habitat designation 
is removed, it is likely the areas affected will be harvested for 
timber or receive greater recreational use, either of which will reduce 
the suitability as nesting habitat. Another reviewer commented that 
there is a strong correlation between murrelet population size and the 
amount of nesting habitat adjacent to the birds, and there is reason to 
believe that further loss of adjacent habitat could result in 
population decline.
    Our Response: The critical habitat areas being removed in southern 
Oregon and northern California are outside of known nesting habitat, 
not likely to be occupied by murrelets, and not essential to the 
conservation of the species (see response to Peer Review Comment 2).
    Comment 9: One reviewer commented that there appeared to be little 
reason to revise the critical habitat designation, which in the 
reviewer's view would limit the conservation options for murrelets. The 
reviewer noted that the proposal did not articulate any economic or 
security issues, and suggested that, in uncertain times, it is prudent 
to be conservative and ``hedge your bets when the consequences of loss 
are high, especially when the costs are low.''

[[Page 61603]]

    Our Response: We disagree that future conservation options will be 
limited by this revision. Marbled murrelets remain protected as a 
listed species wherever they occur, regardless of a critical habitat 
designation. Federal agencies have an independent responsibility under 
section 7(a)(1) of the Act to use their authorities to carry out 
programs for the conservation of endangered and threatened species, and 
a requirement under section 7(a)(2) of the Act to ensure that their 
actions do not jeopardize listed species. The take of listed species is 
prohibited by section 9 of the Act without a permit under sections 
10(a)(1)(A) or 10(a)(1)(B) of the Act, or an incidental take statement 
under section 7(b)(4)(C) of the Act.
    The Marbled Murrelet Recovery Plan states that recovery actions in 
southern Oregon and northern California should be focused on preventing 
the loss of occupied nesting habitat, minimizing the loss of unoccupied 
but suitable habitat, and decreasing the time for development of new 
suitable habitat (Service 1997, p. 128). Recovery task 4.1.4 in the 
Recovery Plan states: (1) A definition of suitable marbled murrelet 
habitat should be developed for each Conservation Zone to better 
determine and map appropriate areas for murrelet recovery; (2) the 
components of suitable marbled murrelet habitat are generally known but 
a description of suitable marbled murrelet habitat for each zone is 
lacking; and (3) once definitions are developed, mapping marbled 
murrelet habitat can be accomplished with greater accuracy (Service 
1997, p. 149). Recovery task 4.1.6 states that intensive surveys should 
be conducted to identify nesting areas and delineate the inland 
boundary of nesting habitat (Service 1997, p. 150).
    Intensive surveys to determine murrelet presence in southern Oregon 
indicate that the inland distribution of marbled murrelets is strongly 
associated with the hemlock/tanoak habitat zone, and not the distance 
from the coast. This is probably due to the maritime climate that 
provides milder, wetter conditions that favor development of larger 
trees and more abundant moss cover. The hemlock/tanoak zone transitions 
relatively rapidly to the mixed-conifer/mixed-evergreen zone that has 
hotter, drier climate. This rapid transition to less favorable 
conditions for murrelets may explain why they aren't detected beyond 
the hemlock/tanoak vegetation zone (Alegria et al., 2002, pp. 15-16).
    There are no historical or current survey records documenting 
murrelet presence in inland zone 2 in California (Hunter et al., 1998; 
Schmidt et al., 2000). Studies conducted by Hunter et al. (1997, p. 
20), indicate that the northern Inner North Coast Ranges of California 
are not within the current range of the marbled murrelet, which could 
be influenced by several factors, including habitat structure, 
elevation, predator abundance, distance inland, and climatic 
conditions. Daily maximum summer temperatures were significantly higher 
within the zone 2 study area than at inland sites documented with 
murrelets closer to the coast (Hunter et al., 1998); summer temperature 
is often inversely correlated with humidity and cloud cover (Anthes et 
al., 1975); in California, the vast majority of murrelet records are 
from redwood-dominated stands (E. Burkett, pers. com); and the 
historical inland extent of redwood forests in California closely 
matches the inland extent of marine air influences and summer fog 
(Major 1977) (in Schmidt et al., 2000, pp. 21-22). This evidence, 
combined with the distance from the closest known occupied murrelet 
sites within inland zone 1 (9 mi (14 km) west and 15 mi (25 km) west; 
Schmidt et al. 2000, p. 11; Hunter et al., 1997, p. 7) indicates a very 
low likelihood of murrelet occupancy within inland zone 2 in 
California. Accordingly, the areas designated as critical habitat in 
1996 in southern Oregon that are not within the hemlock/tanoak habitat 
zone, and the areas within inland zone 2 in California, are not 
considered suitable habitat for marbled murrelet recovery.
    The biological criteria used to identify critical habitat in the 
final rule (61 FR 26265; May 24, 1996) include suitable nesting 
habitat, survey data, proximity to marine foraging habitat, large 
contiguous blocks of nesting habitat, and rangewide distribution. Based 
on the best available information, there is no biological rationale to 
support retaining marbled murrelet critical habitat in areas that are 
neither presently used (i.e., unoccupied), nor likely to be used in the 
future by the species (i.e., unsuitable). Consequently, we believe the 
removal of critical habitat from areas that are not essential to the 
conservation of the species in southern Oregon and northern California 
is appropriate. Removing critical habitat from these areas will allow 
Federal agencies to focus their conservation efforts on the areas that 
currently provide murrelet habitat and have a greater likelihood of 
providing habitat into the future. The designation of critical habitat 
in Douglas and Lane Counties in Oregon is not affected by this 
revision, and these lands will continue to provide a conservation 
benefit to the species.

Public Comments

    Comment 10: Commenters stated the murrelet recovery plan identifies 
the Northwest Forest Plan (NWFP) reserves as the backbone of the 
recovery effort, but Late-Successional Reserves (LSRs) are 
administrative designations that can be removed. In addition, the 
Evaluation Report for the 5-Year Status Review for the Marbled Murrelet 
(McShane et al., 2004; p 4-76) indicates there are problems with 
placing too much reliance on the NWFP. Commenters also stated that if 
the NWFP remains in effect and is not altered substantially from its 
current form, the projected acreage of USFS and BLM lands in the 
Pacific Northwest that support stands older than 200 years (200 years 
defines the lower limit of old-growth forest) is expected to increase 
substantially by the year 2050. They also commented that the Recovery 
Plan for the Marbled Murrelet states ``it will take 50 to 100 years or 
more to develop new suitable nesting habitat within most reserve 
areas,'' however, the NWFP is being dismantled before it has had a 
chance to succeed. Other commenters stated that the LSRs need critical 
habitat designation to ensure they are managed for long-term recovery 
of the species.
    Our Response: Based on the best available scientific information 
related to survey data, there is a very low likelihood that murrelets 
occupy the areas being removed from critical habitat designation in 
southern Oregon and northern California (see responses under Peer 
Reviewer Comments above). The areas being removed are no longer 
considered suitable habitat. Accordingly, these areas are not essential 
to the conservation of the species, and murrelet recovery would not be 
affected by the management of these specific areas. This revision of 
critical habitat will help Federal agencies focus their conservation 
efforts on the areas that currently provide habitat for murrelets, and 
areas that have a greater likelihood of providing habitat into the 
future. Based on the best available scientific information, the areas 
that were designated as critical habitat in Lane and Douglas Counties, 
Oregon, in 1996 have been determined to contain the physical or 
biological features essential to the conservation of the species and 
are not being revised.
    Comment 11: One commenter stated that the Service must present a 
balanced economic analysis, including benefits of old-growth habitat 
conservation and restoration, and that an economic analysis must be 
prepared if BLM lands

[[Page 61604]]

are designated in order to address consequences to communities and 
counties.
    Our Response: Section 4(b)(2) of the Act requires that the Service 
consider economic impacts when ``specifying any particular area as 
critical habitat.'' Characterizing the potential economic benefits of 
critical habitat designation can provide context to the potential 
economic cost estimates, where that information is available. However, 
since this final rule removes critical habitat that was previously 
``specified,'' and we are not removing these areas under Section 
4(b)(2) on economic grounds, we have determined that a new economic 
analysis is not required.
    Comment 12: Some commenters stated that the proposal to revise 
critical habitat should be withdrawn and replaced with a delisting 
proposal, and the Service should not designate critical habitat for a 
species that no longer warrants ESA protection.
    Our Response: We disagree. The marbled murrelet DPS in Washington, 
Oregon, and California continues to warrant protection under the Act, 
for the reasons described in the 12-month Finding on a Petition to 
Remove the Marbled Murrelet from the List of Endangered and Threatened 
Wildlife, published in the Federal Register on January 21, 2010 (75 FR 
3424). That finding determined that the DPS continues to meet the 
definition of a threatened species based on the species' population 
size and trajectory, in light of the scope and magnitude of existing 
threats.
    Comment 13: Commenters stated there is no need to modify critical 
habitat in areas that are currently designated as LSRs, and there is 
little or no incremental cost to conserve marbled murrelet critical 
habitat in LSRs and riparian reserves, because these areas are already 
established for the purpose of conserving late successional wildlife.
    Our Response: Section 3(5)(A) of the Act defines critical habitat 
as (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with section 4 of this 
Act, on which are found those physical or biological features (a) 
Essential to the conservation of the species, and (b) which may require 
special management considerations or protection; and (2) specific areas 
outside the geographical area occupied by the species at the time it is 
listed in accordance with the provisions of section 4 of the Act, upon 
a determination that such areas are essential for the conservation of 
the species. The survey data for southern Oregon and northern 
California, along with the quality and quantity of habitat in this 
area, indicate there is a very low likelihood that murrelets occupy the 
LSRs or the other areas being removed from the 1996 critical habitat 
designation, and are unlikely to occupy these areas in the future (see 
responses under Peer Reviewer Comments). Accordingly, based on the best 
available scientific information, we have determined that these areas 
are not essential to the conservation of the species; therefore, 
requiring Federal agencies to enter into section 7 consultation with 
the Service on effects to critical habitat in these areas would be 
inconsistent with the Act. However, critical habitat in Lane and 
Douglas Counties, Oregon, will remain as designated in 1996, since 
those areas are occupied and essential to the conservation of the 
species.

Federal Agency Comments

    Comment 14: The BLM suggested (a) Adding language to the final rule 
that clearly articulates that the PCEs must be present on the lands 
within the mapped critical habitat units for the area to meet the 
statutory definition of critical habitat; (b) that the final rule 
clarify that activities proposed to occur on lands that do not contain 
PCEs within the mapped critical habitat units will not be subject to a 
destruction or adverse modification determination because such lands, 
by definition, are not critical habitat; and that (c) the proposed rule 
provide better guidance in regard to the functionality of forest stands 
in support of a critical habitat designation, particularly as related 
to the issue of fragmentation. BLM also expressed a concern that 
outdated land status information was used to prepare the proposed rule 
in northern California. They indicated that this is problematic in two 
key areas: Lacks Creek west of and adjacent to the Hoopa Reservation; 
and Gilman Butte east of the King Range National Conservation Area and 
south of Humboldt Redwoods State Park. The BLM also requested that we 
remove critical habitat from all areas not in the western hemlock/
tanoak vegetation on the Grants Pass and Glendale Resource Areas of the 
Medford District. The agency commented that this area lacks murrelet 
recovery habitat, and historical observations and recent protocol 
surveys have not documented murrelet occupancy. The areas described 
include the southeasternmost 2 square miles of CHU OR-07-g, and the 
northeasternmost 24 square miles of CHU OR-07-f.
    Our Response: (a) Areas outside of the geographical area occupied 
by a species at the time it is listed under the Act (i.e., unoccupied 
habitat) can be designated as critical habitat if the areas are 
essential to the conservation of the species; unoccupied areas 
considered essential may not necessarily contain the PCEs of physical 
or biological features. However, for the marbled murrelet, each of the 
areas designated as critical habitat is within the geographical area 
occupied by the species at the time it was listed under the Act, and 
contains those physical or biological features essential to the 
conservation of the species, which may require special management 
considerations or protection. Accordingly, each of the areas delineated 
and mapped in this final rule meet the definition of critical habitat.
    (b) The marbled murrelet PCEs include individual trees with 
potential nest platforms and forest lands of at least one half site-
potential tree height regardless of contiguity, within 0.8 km (0.5 mi) 
of individual trees with potential nesting platforms and that are used 
or potentially used by the marbled murrelet for nesting or breeding. 
Activities that occur within or adjacent to lands designated as 
critical habitat may still have an effect on PCEs, depending on the 
particular aspects of the Federal action involved. The preamble to the 
1996 final critical habitat rule (61 FR 26265; May 24, 1996), states 
that ``within the boundaries of designated critical habitat, only those 
areas that contain one or more primary constituent elements are, by 
definition, critical habitat. Areas without any primary constituent 
elements are excluded by definition.'' However, this language is not in 
the final critical habitat rule itself and is no longer accurate. The 
potential effects of Federal actions that may affect any area within 
the boundaries of designated critical habitat will need to be evaluated 
on a project-specific basis during the section 7(a)(2) consultation 
process.
    (c) The removal, modification, or fragmentation of forested areas 
can 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 can negatively impact the quality of the 
remaining nesting habitat primarily through increased predation, 
modification of the microclimate, and potential windthrow of nest 
trees. Examples of Federal actions that may affect marbled murrelet 
nesting habitat include timber harvest, salvage logging, hazard tree 
removal, road construction, recreational or other developments,

[[Page 61605]]

fuels reduction projects, and indirect harvest-related effects such as 
windthrow. The key factor related to an adverse modification 
determination is whether, with implementation of a proposed Federal 
action, the affected critical habitat would continue to serve its 
intended conservation role for the species, or retain those physical or 
biological features that relate to the ability of the area to 
periodically support the species. The role of critical habitat is to 
support the life-history needs of the species and provide for 
conservation. Activities that may destroy or adversely modify critical 
habitat are those that would alter the physical or biological features 
to an extent that appreciably reduces the conservation value of 
critical habitat for the marbled murrelet.
    The areas referred to by BLM within CHU OR-07-g and CHU OR-07-f 
occur within the 6.5-mile area designed to support murrelets that might 
use the area between the western hemlock/tanoak and mixed-conifer/
evergreen vegetation zones. These areas were not considered for removal 
because of their proximity to occupied habitat (see response to Comment 
6 under Peer Reviewer Comments).

Comments From States

    We did not receive any comments from any State in response to the 
proposed rule.

Summary of Changes From the Proposed Rule

    In preparing this final rule, we reviewed and fully considered 
comments from the public and peer reviewers that we received in 
response to the proposed rule published in the Federal Register on July 
31, 2008 (73 FR 44678).
    Based on the comments received, we have determined that the 
proposed removal of 63,000 ac (25,495 ha) of critical habitat 
designated in Douglas and Lane Counties in Oregon is not supported by 
the best available scientific information and would not be appropriate. 
Based on the best available scientific information, these areas contain 
the physical or biological features essential to the conservation of 
the species, and will continue to be designated as critical habitat. 
Therefore, we have removed instructions to remove the following 
critical habitat units from this final rule: OR-03-c, OR-03-e, OR-04-f, 
OR-04-g, OR-04-i, OR-04-j, and OR-06-d.
    Systematic surveys such as those conducted by Hunter et al. (1998), 
Schmidt et al. (2000), and Alegria et al. (2002) were not conducted in 
a relatively small area (approximately 71,000 ac) in northern 
California located between the Klamath River and the Oregon border, and 
between the much larger areas surveyed by Hunter et al. (1998), Schmidt 
et al. (2000), and Alegria et al. (2002). However, based on the 
similarity of mixed-conifer habitat surveyed to the north and south, 
the lack of detections from the areas immediately north and south, and 
the lack of historical detections, we believe there is a very low 
likelihood that murrelets occur within inland zone 2 and the far 
eastern portions of inland zone 1 located between the Klamath River and 
the Oregon border in northern California. In light of what the current 
data indicate regarding the forest types that murrelets use for nesting 
(see response to Comment 9), we conclude that it is unlikely that 
murrelets will occupy these areas in the future. Accordingly, we have 
revised the critical habitat boundary in this area.
    The critical habitat revision in southern Oregon and northern 
California is appropriate, based on the best available scientific 
information, which indicates the likely distribution of nesting birds 
is not as far inland as was delineated in 1996. We have no historical 
or current survey records documenting murrelet presence in the areas 
being removed in northern California, and the best available 
information indicates the inland range of the murrelet from the Pacific 
Ocean is delimited by the hemlock/tanoak habitat zone, rather than 
specific distance from the coast. Accordingly, we are revising the 
designation of critical habitat for the marbled murrelet from the 1996 
critical habitat designation (61 FR 26254; May 24, 1996) to reflect the 
removal of approximately 189,700 ac (76,700 ha) of area from critical 
habitat designation in 8 units in southern Oregon and northern 
California. The critical habitat units affected by the revision are 
depicted in Table 1 and Table 2. The remaining critical habitat units 
that were designated in the May 24, 1996, final rule are not affected 
by this revision. Approximately 3,698,100 ac (1,497,000 ha) of critical 
habitat is now designated for the marbled murrelet.

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 to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot otherwise be 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. 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 
non-Federal landowners. Where a landowner seeks or requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the consultation requirements of section 
7(a)(2) of the Act would apply, but even in the event of a destruction 
or adverse modification finding, the obligation of the Federal action 
agency and landowner 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 of listing must 
contain the physical or biological features which are essential to the 
conservation of the species and which may require special management 
considerations or protection. Critical habitat designations identify, 
to the

[[Page 61606]]

extent known using the best scientific and commercial data available, 
those physical or biological features that are essential to the 
conservation of the species (such as space, food, cover, and protected 
habitat), focusing on the principal biological or physical constituent 
elements (primary constituent elements, or PCEs) within an area that 
are essential to the conservation of the species (such as roost sites, 
nesting grounds, seasonal wetlands, water quality, tide, soil type). 
PCEs are the elements of physical and biological features that, when 
laid out in the appropriate quantity and spatial arrangement to provide 
for a species' life-history processes, are essential for the 
conservation of the species.
    Under the Act, we can designate critical habitat in areas outside 
the geographical area occupied by the species at the time it is listed, 
upon a determination that such areas are essential for the conservation 
of the species. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species. When the best available scientific data do not demonstrate 
that the conservation needs of the species require such additional 
areas, we will not designate critical habitat in areas outside the 
geographical area occupied by the species. An area currently occupied 
by the species but that was not occupied at the time of listing may, 
however, be essential to the conservation of the species and may be 
included in the critical habitat designation.
    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 and commercial data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information 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. Substantive comments received in 
response to proposed critical habitat designations are also considered. 
A five-year review summarizing the biological, ecological, and 
population information on the marbled murrelet was completed on June 
12, 2009 (Service 2009). That report also evaluated current threats and 
how they may have changed since the species was listed. This 
information was considered in the completion of this revised 
designation, as was information from the 12-month Finding on a Petition 
to Remove the Marbled Murrelet from the List of Endangered and 
Threatened Wildlife (75 FR 3424; January 21, 2010). We also reviewed 
the scientific data and other information 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 (Service 1997), and considered new scientific 
information and data available from State, Federal, and tribal 
agencies, as well as academia and private organizations.
    Habitat is dynamic, and species may move from one area to another 
over time. Furthermore, we recognize that designation of critical 
habitat at a particular point in time may not include all of the 
habitat areas that we may later determine are necessary for the 
recovery of the species. For these reasons, a critical habitat 
designation does not signal that habitat outside the designated area is 
unimportant or may not promote the recovery of the species. Areas that 
are important to the conservation of the species, both inside and 
outside the critical habitat designation, will continue to be subject 
to: (1) Conservation actions implemented under section 7(a)(1) of the 
Act, (2) regulatory protections afforded by the requirement in section 
7(a)(2) of the Act for Federal agencies to ensure their actions are not 
likely to jeopardize the continued existence of any endangered or 
threatened species, and (3) the prohibitions of section 9 of the Act if 
actions occurring in these areas may affect the species. 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 at the time of these 
planning efforts calls for a different outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied at the time of listing to designate as 
critical habitat, we consider those physical or biological features 
essential to the conservation of the species and which may require 
special management considerations or protection. 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 historical, geographical, and ecological 
distributions of a species.
    We derive the specific elements of physical or biological features 
required for the marbled murrelet from its biological needs 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 and remain applicable to this final 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 final 
revision of critical habitat for the marbled murrelet. These include 
suitable nesting habitat, information on presence/absence and 
occupancy, proximity to marine

[[Page 61607]]

foraging habitat, large contiguous blocks of nesting habitat, rangewide 
distribution, and adequacy of existing protection and management (61 FR 
26265).

Final Revised Critical Habitat Designation

    In our 1996 designation of marbled murrelet critical habitat, we 
considered several factors in determining whether particular units met 
the definition of critical habitat, including available survey data, 
the proximity to marine foraging habitat, and the presence of large 
contiguous blocks of suitable nesting habitat. The physical or 
biological features associated with marbled murrelet critical habitat 
focused on individual trees with potential nesting platforms, and 
forested areas within 0.8 kilometers (0.5 miles) of individual trees 
with potential nesting platforms that had a canopy height of at least 
one-half the site potential tree height (SPTH) (the average maximum 
height for trees given local growing conditions). We determined that 
these features were essential because they provided suitable nesting 
habitat for successful reproduction. On a landscape basis, we believed 
that forests with canopy height of at least one-half the SPTH were more 
likely to be occupied, and hence were more likely to contribute to the 
conservation of the marbled murrelet (61 FR 26264; May 24, 1996).
    For the 1996 critical habitat designation, we used survey results 
(including those showing the lack of detections) as indicators of the 
presence or absence of marbled murrelets in specific areas. However, 
survey efforts were minimal in many areas, coverage of areas surveyed 
was discontinuous, and information was of limited use in designating 
critical habitat in some portions of the range (61 FR 26274; May 24, 
1996). The original delineation of zone 2 was based on relatively few 
far-inland marbled murrelet records, and considered the lack of 
comprehensive inland surveys throughout its range. Because of this 
paucity of survey data, the actual inland range and distribution of 
this species were unknown (Hunter et al. 1998, p. 93). We stated in the 
1996 final rule that we would continue to monitor and collect new 
information, and may revise the critical habitat designation in the 
future if new information supports a change (61 FR 26272; May 24, 
1996).
    We have reassessed the 1996 critical habitat designation in 
southern Oregon and northern California, after considering the results 
of extensive surveys in these areas. Although the best available 
information in 1996 indicated a high probability of occupancy after 
applying the critical habitat methodology, new information collected 
from site-specific surveys has since confirmed that marbled murrelets 
do not use these areas. Recovery task 4.1.4 in the 1997 Marbled 
Murrelet Recovery Plan recommends that a definition of suitable marbled 
murrelet habitat be developed for each conservation zone to determine 
and map appropriate areas for marbled murrelet recovery with greater 
accuracy (Service 1997, p. 149), and task 4.1.6 recommends intensive 
surveys to identify nesting areas and delineate the inland boundary of 
murrelet nesting habitat (Service 1997, p. 150). Intensive surveys that 
have been conducted since 1997 have given us a more comprehensive 
understanding of the species biological needs, and the specific areas 
that are essential for the recovery of the species. Those are the areas 
that should be the focus of collective recovery efforts, rather than 
areas that may experience infrequent or occasional use at low levels.
    Accordingly, we have determined that the areas being removed are 
not essential to the conservation of the species and do not meet the 
definition of critical habitat. Zone 2 includes areas from 35 mi (56.3 
km) to 50 mi (80.5 km) from marine environments, depending on 
geographic location (Thomas 1993 (FEMAT), p. IV-24). In zone 2 in 
northern California and southern Oregon, 189,671 ac (76,757 ha) are 
being 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). 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, the habitat in these 
areas does not contain elements of the physical or biological features 
in an appropriate quantity and spatial arrangement that are essential 
for the conservation of the species.
    We are, therefore, revising the 1996 final designation of critical 
habitat for the marbled murrelet to reflect the removal of three 
critical habitat units (CA-10-a, CA-11-c, and CA-11-d) and the revision 
of five critical habitat units (CA-01-d, CA-01-e, CA-11-b, OR-07-d, and 
OR-07-f) in northern California and southern Oregon. No other critical 
habitat units designated in the May 24, 1996, final rule are affected 
by this revision. Each of the designated areas are within the 
geographical area occupied by the species at the time of listing, 
contain the physical or biological features essential to the 
conservation of the species, and may require special management 
considerations or protection.
    The critical habitat areas described below reflect the best 
available scientific information regarding areas that no longer meet 
the definition of critical habitat for the marbled murrelet in Zone 2, 
because they are not essential to the conservation of the species.

  Table 1--Critical Habitat for the Marbled Murrelet Designated in 1996
                      and Removed in 2011 by State
------------------------------------------------------------------------
                                         Areas removed from designated
                                               critical habitat
                State                -----------------------------------
                                            Acres           Hectares
------------------------------------------------------------------------
California..........................           143,487            58,068
Oregon.......................