Endangered and Threatened Wildlife and Plants; Determination of Critical Habitat for the Marbled Murrelet, 51348-51370 [2016-18376]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 81, Number 150 (Thursday, August 4, 2016)]
[Rules and Regulations]
[Pages 51348-51370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18376]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2015-0070; 4500030114]
RIN 1018-BA91


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final determination.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
the critical habitat for the marbled murrelet (Brachyramphus 
marmoratus), as designated in 1996 and revised in 2011, meets the 
statutory definition of critical habitat under the Endangered Species 
Act of 1973, as amended (Act). The current designation includes 
approximately 3,698,100 acres (1,497,000 hectares) of critical habitat 
in the States of Washington, Oregon, and California.

DATES: This final determination confirms the effective date of the 
final rule published at 61 FR 26256 and effective on June 24, 1996, as 
revised at 76 FR 61599, and effective on November 4, 2011.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov and https://www.fws.gov/wafwo. Comments and 
materials we received, as well as some of the supporting documentation 
we used in preparing this final rule, are available for public 
inspection at https://www.regulations.gov. All of the comments, 
materials, and documentation that we considered in this rulemaking are 
available by appointment, during normal business hours at: U.S. Fish 
and Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond 
Drive SE., Suite 102,

[[Page 51349]]

Lacey, WA 98503-1273 (telephone 360-753-9440; facsimile 360-753-9008). 
The critical habitat designation for the marbled murrelet as affirmed 
by this final determination is in the Code of Federal Regulations at 50 
CFR 17.95(b). The coordinates for this critical habitat rule were 
provided in the Federal Register in 1996 and 2011 and can be found at 
61 FR 26256 and 76 FR 61599.

FOR FURTHER INFORMATION CONTACT: Eric V. Rickerson, State Supervisor, 
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); Paul Henson, State 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; Bruce Bingham, 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; 
Jennifer Norris, Field Supervisor, U.S. Fish and Wildlife Service, 
Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, 
Sacramento, CA 95825, telephone 916-414-6700, facsimile 916-414-6713; 
or Stephen P. Henry, Field Supervisor, U.S. Fish and Wildlife Service, 
Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, 
CA 93003, telephone 805-644-1766, facsimile 805-644-3958. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Purpose of this document. On May 24, 1996, we published in the 
Federal Register a final rule designating 3,887,800 acres (ac) 
(1,573,340 hectares (ha)) of critical habitat for the marbled murrelet 
in the States of Washington, Oregon, and California (61 FR 26256). On 
October 5, 2011, we published in the Federal Register a final rule 
revising critical habitat for the marbled murrelet (76 FR 61599), 
resulting in the removal of approximately 189,671 ac (76,757 ha) of 
critical habitat in the States of Oregon and California. In a proposed 
rule published in the Federal Register August 25, 2015 (80 FR 51506), 
we reconsidered the 1996 final rule, as revised in 2011, for the 
purpose of assessing whether all of the designated areas meet the 
statutory definition of critical habitat. We did not propose any 
changes to the boundaries of the specific areas identified as critical 
habitat.
    Why we needed to reconsider the rule. In 2012, the American Forest 
Resource Council (AFRC) and other parties filed suit against the 
Service, challenging the designation of critical habitat for the 
marbled murrelet, among other things. After this suit was filed, the 
Service concluded that the 1996 rule that first designated critical 
habitat for the marbled murrelet, as well as the 2011 rule that revised 
that designation, did not comport with recent case law holding that the 
Service should specify which areas were occupied at the time of 
listing, and should further explain why unoccupied areas are essential 
for conservation of the species. Hence, the Service moved for a 
voluntary remand of the critical habitat rule, requesting until 
September 30, 2015, to issue a proposed rule, and until September 30, 
2016, to issue a final rule. On September 5, 2013, the court granted 
the Service's motion, leaving the current critical habitat rule in 
effect pending completion of the remand.
    The basis for our action. Under the Act, any species that is 
determined to be an endangered or threatened species shall, to the 
maximum extent prudent and determinable, have habitat designated that 
is considered to be critical habitat. Section 4(b)(2) of the Act states 
that the Secretary shall designate and make revisions to critical 
habitat on the basis of the best scientific data available after taking 
into consideration the economic impact, national security impact, and 
any other relevant impact of specifying any particular area as critical 
habitat. Section 4 of the Act and its implementing regulations in part 
424 of title 50 of the Code of Federal Regulations (50 CFR part 424) 
set forth the procedures for designating or revising critical habitat 
for listed species.
    We considered the economic impacts of the proposed rule. We 
provided our evaluation of the potential economic impacts of the 
proposed determination regarding critical habitat for the marbled 
murrelet in the proposed rule. Following the close of the comment 
period, we reviewed and evaluated all information submitted during the 
comment period that may pertain to our consideration of the probable 
incremental economic impacts of the proposed determination. We have 
incorporated the comments into this final determination.
    Public comment. The comment period on our proposed rule and our 
evaluation of probable economic impacts of the proposed rule was open 
for 60 days, beginning with the publication of the proposed rule on 
August 25, 2015 (80 FR 51506), through October 26, 2015. We considered 
all substantive and relevant comments and information received from the 
public during the comment period.

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 final revised critical habitat rule 
published in the Federal Register on October 5, 2011 (76 FR 61599). 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 (USFWS 1997, 
entire). On January 13, 2003, we entered into a settlement agreement 
with AFRC 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 in the Federal Register 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 in the Federal Register 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 in the Federal Register a document announcing the 
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 document in the Federal Register (73 
FR 12067) stating that the critical habitat for marbled murrelet should 
not be revised due to uncertainties regarding U.S. Bureau of Land 
Management (BLM) revisions to its District Resource Management Plans in 
western Oregon, and that document fulfilled our obligations under the 
settlement agreement.

[[Page 51350]]

    On July 31, 2008, we published in the Federal Register a proposed 
rule 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 (73 FR 44678). A second 
5-year review was completed on June 12, 2009. On January 21, 2010, in 
response to a May 28, 2008, petition to delist the California/Oregon/
Washington distinct population segment (DPS) of the marbled murrelet 
and our subsequent October 2, 2008, 90-day finding concluding that the 
petition presented substantial information (73 FR 57314; October 2, 
2008), we published a 12-month finding notice in the Federal Register 
(75 FR 3424) determining that removing the marbled murrelet from the 
Federal List of Endangered and Threatened Wildlife (50 CFR 17.11) was 
not warranted. We also found that the Washington/Oregon/California 
population of the marbled murrelet is a valid DPS in accordance with 
the discreteness and significance criteria in our 1996 DPS policy 
(February 7, 1996; 61 FR 4722) and concluded that the DPS continues to 
meet the definition of a threatened species under the Act.
    On October 5, 2011, we published in the Federal Register a final 
rule revising the critical habitat designation for the marbled murrelet 
(76 FR 61599). This final rule removed approximately 189,671 ac (76,757 
ha) in northern California and southern Oregon from the 1996 
designation, based on new information indicating these areas did not 
meet the definition of critical habitat for the marbled murrelet; this 
action resulted in a final revised designation of approximately 
3,698,100 ac (1,497,000 ha) of critical habitat in Washington, Oregon, 
and California.
    On January 24, 2012, AFRC filed suit against the Service to delist 
the marbled murrelet and vacate critical habitat. On March 30, 2013, 
the U.S. District Court for the District of Columbia granted in part 
AFRC's motion for summary judgment and denied a joint motion for 
vacatur of critical habitat pending completion of a voluntary remand. 
Following this ruling, the Service moved for a remand of the critical 
habitat rule, without vacatur, in light of recent case law setting more 
stringent requirements on the Service for specifying how designated 
areas meet the definition of critical habitat. On September 5, 2013, 
the district court ordered the voluntary remand without vacatur of the 
critical habitat rule, and set deadlines of September 30, 2015, for a 
proposed rule and September 30, 2016, for a final rule. The court ruled 
in favor of the Service regarding the Service's denial of plaintiffs' 
petition to delist the species, and that ruling was affirmed on appeal. 
See American Forest Resource Council v. Ashe, 946 F. Supp. 2d 1 (D.D.C. 
2013), aff'd 2015 U.S. App. LEXIS 6205 (D.C. Cir., Feb. 27, 2015).
    The Service, in conjunction with the National Marine Fisheries 
Service, published a rule revising 50 CFR 424.12, the criteria for 
designating critical habitat, on February 11, 2016 (81 FR 7413); the 
rule became effective on March 14, 2016. The revised regulations 
clarify, interpret, and implement portions of the Act concerning the 
procedures and criteria used for adding species to the Lists of 
Endangered and Threatened Wildlife and Plants and designating and 
revising critical habitat. Specifically, the amendments make minor 
edits to the scope and purpose, add and remove some definitions, and 
clarify the criteria and procedures for designating critical habitat. 
These amendments are intended to clarify expectations regarding 
critical habitat and provide for a more predictable and transparent 
critical habitat designation process.
    As stated in the revised version of Sec.  424.12, the regulatory 
provisions in that section apply only to rulemaking actions for which 
the proposed rule is published after that effective date. Thus, the 
prior version of Sec.  424.12 will continue to apply to any rulemaking 
actions for which a proposed rule was published before that date. Since 
the proposed rule for marbled murrelet critical habitat was published 
on August 25, 2015, this final rule follows the version of Sec.  424.12 
that was in effect prior to March 14, 2016.

Summary of Changes From Proposed Rule

    Based upon our evaluation of the best scientific data available and 
considering all information and comments received during the public 
comment period, we conclude that our evaluation and description of how 
all areas currently designated as critical habitat for the marbled 
murrelet meet the statutory definition under the Act is accurate as 
described in the proposed rule. Furthermore, we conclude that our 
description of the probable incremental impacts of our proposed 
rulemaking is accurate as described in the proposed rule. Therefore, 
there are no changes from the proposed rule in this final rule.

Background

    A final rule designating critical habitat for the marbled murrelet 
was published in the Federal Register on May 24, 1996 (61 FR 26256). A 
final rule revising the 1996 designation of critical habitat for the 
marbled murrelet was published in the Federal Register on October 5, 
2011 (76 FR 61599). Both of these rules are available under the 
``Supporting Documents'' section for this docket in the Federal 
eRulemaking Portal: https://www.regulations.gov at Docket Number FWS-R1-
ES-2015-0070. It is our intent to discuss only those topics directly 
relevant to the 1996 and revised 2011 designations of critical habitat 
for the marbled murrelet. A complete description of the marbled 
murrelet, including a discussion of its life history, distribution, 
ecology, and habitat, can be found in the May 24, 1996, final rule (61 
FR 26256) and the final recovery plan (USFWS 1997).
    In this document, we have reconsidered our previous critical 
habitat designation for the marbled murrelet (May 24, 1996; 61 FR 
26256, as revised on October 5, 2011; 76 FR 61599). The current 
designation consists of approximately 3,698,100 ac (1,497,000 ha) of 
critical habitat in Washington, Oregon, and California. The critical 
habitat consists of 101 subunits: 37 in Washington, 33 in Oregon, and 
31 in California. We have reconsidered the final rule for the purpose 
of evaluating whether all areas currently designated meet the 
definition of critical habitat under the Act. We have described and 
assessed each of the elements of the definition of critical habitat, 
and evaluated whether these statutory criteria apply to the current 
designation of critical habitat for the marbled murrelet. Here we 
present the following information relevant to our evaluation:
    I. The statutory definition of critical habitat.
    II. A description of the physical or biological features essential 
to the conservation of the marbled murrelet, for the purpose of 
evaluating whether the areas designated as critical habitat provide 
these essential features.
    III. The primary constituent elements for the marbled murrelet.
    IV. A description of why those primary constituent elements may 
require special management considerations or protection.
    V. Our standard for defining the geographical areas occupied by the 
species at the time of listing.
    VI. The evaluation of those specific areas within the geographical 
area occupied at the time of listing for the purpose of determining 
whether designated critical habitat meets the definition under section 
3(5)(A)(i) of the Act.

[[Page 51351]]

    VII. An additional evaluation of all critical habitat to determine 
whether the designated units meet the standard of being essential to 
the conservation of the species, under section 3(5)(A)(ii) of the Act. 
We conducted this analysis to assess whether all areas of critical 
habitat meet the statutory definition under either of the definition's 
prongs, regardless of occupancy. This approach is consistent with the 
ruling in Home Builders Ass'n of Northern California v. U.S. Fish and 
Wildlife Service, 616 F.3d 983 (9th Cir.), cert. denied 131 S.Ct. 1475 
(2011), in which the court upheld a critical habitat rule in which the 
Service had determined that the areas designated, whether occupied or 
not, met the more demanding standard of being essential for 
conservation.
    VIII. Restated correction to preamble language in 1996 critical 
habitat rule.
    IX. Effects of critical habitat designation under section 7 of the 
Act.
    X. As required by section 4(b)(2) of the Act, consideration of the 
potential economic impacts of the rule.
    XI. Final determination that all areas currently designated as 
critical habitat for the marbled murrelet meet the statutory definition 
under the Act.
    XII. Summary of Comments and Responses

I. Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features.
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Under the first prong of the Act's definition of critical habitat 
in section 3(5)(a)(i), areas within the geographical area occupied by 
the species at the time it was listed may be included in critical 
habitat if they contain physical or biological features: (1) Which are 
essential to the conservation of the species; and (2) which may require 
special management considerations or protection. For these areas, 
critical habitat designations identify, to the extent known using the 
best scientific data available, those physical or biological features 
that are essential to the conservation of the species (such as space, 
food, cover, and protected habitat). In identifying those physical and 
biological features within an area, we focus on the primary biological 
or physical constituent elements (primary constituent elements such as 
roost sites, nesting grounds, seasonal wetlands, water quality, tide, 
soil type) that are essential to the conservation of the species. 
Primary constituent elements (PCEs) are those specific elements of the 
physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
    Under the second prong of the Act's definition of critical habitat 
in section 3(5)(A)(ii), we can designate critical habitat in areas 
outside the geographical area occupied by the species at the time it is 
listed, upon the Secretary's determination that such areas are 
essential for the conservation of the species. For example, an area 
currently occupied by the species but that was not occupied at the time 
of listing may be essential for the conservation of the species and may 
be included in the critical habitat designation. In addition, if 
critical habitat is designated or revised subsequent to listing, we may 
designate areas as critical habitat that may currently be unoccupied 
but that were occupied at the time of listing. We designate critical 
habitat in areas outside the geographical area presently occupied by a 
species only when a designation limited to its present range would be 
inadequate to ensure the conservation of the species.

II. Physical or Biological Features

    We identified the specific physical or biological features 
essential for the conservation of the marbled murrelet from studies of 
this species' habitat, ecology, and life history as described below. 
Additional information can be found in the final listing rule published 
in the Federal Register on October 1, 1992 (57 FR 45328), and the 
Recovery Plan for the Marbled Murrelet (USFWS 1997). In the 1996 final 
critical habitat rule (May 24, 1996; 61 FR 26256), we relied on the 
best available scientific information to describe the terrestrial 
habitat used for nesting by the marbled murrelet. For this 2016 rule 
reconsideration, the majority of the following information is taken 
directly from the 1996 final critical habitat rule, where the 
fundamental physical or biological features essential to the marbled 
murrelet as described therein (in the section titled Ecological 
Considerations) remain valid (May 24, 1996; 61 FR 26256).
    Where newer scientific information is available that refutes or 
validates the information presented in the 1996 final critical habitat 
rule, that information is provided here and is so noted. However, this 
final rule does not constitute a complete summary of all new scientific 
information on the biology of the marbled murrelet since 1996. Because 
this rule reconsideration addresses the 1996 final critical habitat, as 
revised in 2011 (October 5, 2011; 76 FR 61599), which designated 
critical habitat only in the terrestrial environment, the following 
section will solely focus on the terrestrial nesting habitat features. 
Forested areas with conditions that are capable of supporting nesting 
marbled murrelets are referred to as ``suitable nesting habitat.'' Loss 
of such nesting habitat was the primary basis for listing the marbled 
murrelet as threatened; hence protection of such habitat is essential 
to the conservation of the species. We consider the information 
provided here to represent the best available scientific data with 
regard to the physical or biological features essential for the marbled 
murrelet's use of terrestrial habitat.
    Throughout the forested portion of the species' range, marbled 
murrelets typically nest in forested areas containing characteristics 
of older forests (Binford et al. 1975, p. 305; Quinlan and Hughes 1990, 
entire; Hamer and Cummins 1991, pp. 9-13; Kuletz 1991, p. 2; Singer et 
al. 1991, pp. 332-335; Singer et al. 1992, entire; Hamer et al. 1994, 
entire; Hamer and Nelson 1995, pp. 72-75; Ralph et al. 1995a, p. 4). 
The marbled murrelet population in Washington, Oregon, and California 
nests in most of the major types of coniferous forests (Hamer and 
Nelson 1995, p. 75) in the western portions of these States, wherever 
older forests remain inland of the coast. Although marbled murrelet 
nesting habitat characteristics may vary throughout the range of the 
species, some general habitat attributes are characteristic throughout 
its range, including the presence of nesting platforms, adequate canopy 
cover over the nest, landscape condition, and distance to the marine 
environment (Binford et al. 1975, pp. 315-316; Hamer and Nelson 1995, 
pp. 72-75; Ralph et al. 1995b, p. 4; McShane et al. 2004, p. 4-39).
    Individual tree attributes that provide conditions suitable for 
nesting (i.e., provide a nesting platform) include large branches 
(ranging from 4 to 32 inches (in) (10 to 81 centimeters (cm)), with an 
average of 13 in (32 cm) in Washington, Oregon, and California) or 
forked branches, deformities (e.g.,

[[Page 51352]]

broken tops), dwarf mistletoe infections, witches' brooms, and growth 
of moss or other structures large enough to provide a platform for a 
nesting adult marbled murrelet (Hamer and Cummins 1991, p. 15; Singer 
et al. 1991, pp. 332-335; Singer et al. 1992, entire; Hamer and Nelson 
1995, p. 79). These nesting platforms are generally located greater or 
equal to 33 feet (ft) (10 meters (m)) above ground (reviewed in Burger 
2002, pp. 41-42 and McShane et al. 2004, pp. 4-55-4-56). These 
structures are typically found in old-growth and mature forests, but 
may be found in a variety of forest types including younger forests 
containing remnant large trees. Since 1996, research has confirmed that 
the presence of platforms is considered the most important 
characteristic of marbled murrelet nesting habitat (Nelson 1997, p. 6; 
reviewed in Burger 2002, pp. 40, 43; McShane et al. 2004, pp. 4-45-4-
51, 4-53, 4-55, 4-56, 4-59; Huff et al. 2006, pp. 12-13, 18). Platform 
presence is more important than the size of the nest tree because tree 
size alone may not be a good indicator of the presence and abundance of 
platforms (Evans Mack et al. 2003, p. 3). Tree diameter and height can 
be positively correlated with the size and abundance of platforms, but 
the relationship may change depending on the variety of tree species 
and forest types that marbled murrelets use for nesting (Huff et al. 
2006, p. 12). Overall, nest trees in Washington, Oregon, and northern 
California have been greater than 19 in (48 cm) diameter at breast 
height (dbh) and greater than 98 ft (30 m) tall (Hamer and Nelson 1995, 
p. 81; Hamer and Meekins 1999, p. 10; Nelson and Wilson 2002, p. 27).
    Northwestern forests and trees typically require 200 to 250 years 
to attain the attributes necessary to support marbled murrelet nesting, 
although characteristics of nesting habitat sometimes develop in 
younger coastal redwood (Sequoia sempervirens) and western hemlock 
(Tsuga heterophylla) forests. Forests with older residual trees 
remaining from previous forest stands may also develop into nesting 
habitat more quickly than those without residual trees. These remnant 
attributes can be products of fire, windstorms, or previous logging 
operations that did not remove all of the trees (Hansen et al. 1991, p. 
383; McComb et al. 1993, pp. 32-36). Other factors that may affect the 
time required to develop suitable nesting habitat characteristics 
include site productivity and microclimate.
    Through the 1995 nesting season, 59 active or previously used tree 
nests had been located in Washington (9 nests), Oregon (36 nests), and 
California (14 nests) (Hamer and Nelson 1995, pp. 70-71; Nelson and 
Wilson 2002, p. 134; Washington Department of Fish and Wildlife 
murrelet database; California Department of Fish and Game murrelet 
database). All of the nests for which data were available in 1996 in 
Washington, Oregon, and California were in large trees that were more 
than 32 in (81 cm) dbh (Hamer and Nelson 1995, p. 74). Of the 33 nests 
for which data were available, 73 percent were on a moss substrate and 
27 percent were on litter, such as bark pieces, conifer needles, small 
twigs, or duff (Hamer and Nelson 1995, p. 74). The majority of nest 
platforms were created by large or deformed branches (Hamer and Nelson 
1995, p. 79). Nests found subsequently have characteristics generally 
consistent with these tree diameter and platform sources (McShane et 
al. 2004, pp. 4-50 to 4-59; Bloxton and Raphael 2009, p. 8). However, 
in Oregon, nests were found in smaller diameter trees (as small as 19 
in (49 cm)) that were distinguished by platforms provided by mistletoe 
infections (Nelson and Wilson 2002, p. 27). In Washington, one nest was 
found on a cliff (i.e., ground nest) that exhibited features similar to 
a tree platform, such as vertical and horizontal cover (Bloxton and 
Raphael 2009, pp. 8 and 33). In central California, nest platforms were 
located on large limbs and broken tops with 32.3 percent mean moss 
cover on nest limbs (Baker et al. 2006, p. 944).
    More than 94 percent of the nests for which data were available in 
1996 were in the top half of the nest trees, which may allow easy nest 
access and provide shelter from potential predators and weather. Canopy 
cover directly over the nests was typically high (average 84 percent; 
range 5 to 100 percent) in Washington, Oregon, and California (Hamer 
and Nelson 1995, p. 74). This cover may provide protection from 
predators and weather. Such canopy cover may be provided by trees 
adjacent to the nest tree, or by the nest tree itself. Canopy closure 
of the nest stand/site varied between 12 and 99 percent and averaged 48 
percent (Hamer and Nelson 1995, p. 73). Information gathered subsequent 
to 1996 confirms that additional attributes of the platform are 
important including both vertical and horizontal cover and substrate. 
Known nest sites have platforms that are generally protected by 
branches above (vertical cover) or to the side (horizontal cover) (Huff 
et al. 2006, p. 14). Marbled murrelets appear to select limbs and 
platforms that provide protection from predation (Marzluff et al. 2000, 
p. 1135; Luginbuhl et al 2001, p. 558; Raphael et al. 2002a, pp. 226, 
228) and inclement weather (Huff et al. 2006, p. 14). Substrate, such 
as moss, duff, or needles on the nest limb is important for protecting 
the egg and preventing it from falling (Huff et al. 2006, p. 13).
    Nests have been located in forested areas dominated by coastal 
redwood, Douglas-fir (Pseudotsuga menziesii), mountain hemlock (Tsuga 
mertensiana), Sitka spruce (Picea sitchensis), western hemlock, and 
western red cedar (Thuja plicata) (Binford et al. 1975, p. 305; Quinlan 
and Hughes 1990, entire; Hamer and Cummins 1991, p. 15; Singer et al. 
1991, p. 332, Singer et al.1992, p. 2; Hamer and Nelson 1995, p. 75). 
Individual nests in Washington, Oregon, and California have been 
located in Douglas-fir, coastal redwood, western hemlock, western red 
cedar, and Sitka spruce trees (Hamer and Nelson 1995, p. 74).
    For nesting habitat to be accessible to marbled murrelets, it must 
occur close enough to the marine environment for marbled murrelets to 
fly back and forth. The farthest inland distance for a site with 
nesting behavior detections is 52 mi (84 km) in Washington. The 
farthest known inland sites with nesting behavior detections in Oregon 
and California are 40 and 24 mi (65 and 39 km), respectively (Evans 
Mack et al. 2003, p. 4). Additionally, as noted below in the section 
titled Definition of Geographical Area Occupied at the Time of Listing, 
presence detections have been documented farther inland in Washington, 
Oregon, and California (Evans Mack et al. 2003, p. 4).
    Prior to Euroamerican settlement in the Pacific Northwest, nesting 
habitat for the marbled murrelet was well distributed, particularly in 
the wetter portions of its range in Washington, Oregon, and California. 
This habitat was generally found in large, contiguous blocks of forest 
(Ripple 1994, p. 47) as described under the Management Considerations 
section of the 1996 final critical habitat rule (May 24, 1996; 61 FR 
26256).
    Areas where marbled murrelets are concentrated at sea during the 
breeding season are likely determined by a combination of terrestrial 
and marine conditions. However, nesting habitat appears to be the most 
important factor affecting marbled murrelet distribution and numbers. 
Marine survey data confirmed conclusions made in the supplemental 
proposed critical habitat rule (August 10, 1995; 60 FR 40892) that 
marine observations of marbled murrelets during the nesting season 
generally correspond to the largest remaining blocks of suitable forest 
nesting habitat (Nelson et al. 1992, p.

[[Page 51353]]

64; Varoujean et al. 1994, entire; Ralph et al. 1995b, pp. 5-6; Ralph 
and Miller 1995, p. 358).
    Consistent with Varoujean et al.'s (1994) 1993 and 1994 aerial 
surveys, Thompson (1996, p. 11) found marbled murrelets to be more 
numerous along Washington's northern outer coast and less abundant 
along the southern coast. Thompson reported that this distribution 
appears to be correlated with: (1) Proximity of old-growth forest, (2) 
the distribution of rocky shoreline/substrate versus sandy shoreline/
substrate, and (3) abundance of kelp (Thompson 1996, p. 11). In British 
Columbia, Canada, Rodway et al. (1995, pp. 83, 85, 86) observed marbled 
murrelets aggregating on the water close to breeding areas at the 
beginning of the breeding season and, for one of their two study areas, 
again in July as young were fledging. Burger (1995, pp. 305-306) 
reported that the highest at-sea marbled murrelet densities in both 
1991 and 1993 were seen immediately adjacent to two tracts of old-
growth forest, while areas with very low densities of marbled murrelets 
were adjacent to heavily logged watersheds. More recent evidence 
supports that detections of marbled murrelets at inland sites and 
densities offshore were higher in or adjacent to areas with large 
patches of old-growth, and in areas of low fragmentation and low 
isolation of old-growth patches (Raphael et al. 1995, pp. 188-189; 
Burger 2002, p. 54; Meyer and Miller 2002, pp. 763-764; Meyer et al. 
2002, pp. 109-112; Miller et al. 2002, p. 100; Raphael et al. 2002a, p. 
221; Raphael et al. 2002b, p. 337). Overall, landscapes with detections 
indicative of nesting behavior tended to have large core areas of old-
growth and low amounts of overall edge (Meyer and Miller 2002, pp. 763-
764; Raphael et al. 2002b, p. 331).
    In contrast, where nesting habitat is limited in southwest 
Washington, northwest Oregon, and portions of California, few marbled 
murrelets are found at sea during the nesting season (Ralph and Miller 
1995, p. 358; Varoujean and Williams 1995, p. 336; Thompson 1996, p. 
11). For instance, as of 1996, the area between the Olympic Peninsula 
in Washington and Tillamook County in Oregon (100 mi (160 km)) had few 
sites with detections indicative of nesting behavior or sightings at 
sea of marbled murrelets. In California, approximately 300 mi (480 km) 
separate the large breeding populations to the north in Humboldt and 
Del Norte Counties from the southern breeding population in San Mateo 
and Santa Cruz Counties. This reach contained few marbled murrelets 
during the breeding season; however, the area likely contained 
significant numbers of marbled murrelets before extensive logging 
(Paton and Ralph 1988, p. 11, Larsen 1991, pp. 15-17). More recent at-
sea surveys confirm the low numbers of marbled murrelets in marine 
areas adjacent to inland areas that have limited nesting habitat 
(Miller et al. 2012, p. 775; Raphael et al. 2015, p. 21).
    Dispersal mechanisms of marbled murrelets are not well understood; 
however, social interactions may play an important role. The presence 
of marbled murrelets in a forest stand may attract other pairs to 
currently unused habitat within the vicinity. This may be one of the 
reasons marbled murrelets have been observed in habitat not currently 
suitable for nesting, but in close proximity to known nesting sites 
(Hamer and Cummins 1990, p. 14; Hamer et al. 1994, entire). Although 
marbled murrelets appear to be solitary in their nesting habits (Nelson 
and Peck 1995, entire), they are frequently detected in groups above 
the forest, especially later in the breeding season (USFWS 1995, pp. 
14-16). Two active nests discovered in Washington during 1990 were 
located within 150 ft (46 m) of each other (Hamer and Cummins 1990, p. 
47), and two nests discovered in Oregon during 1994 were located within 
100 ft (33 m) of each other (USFWS 1995, p. 14). Therefore, unused 
habitat in the vicinity of known nesting habitat may be more important 
for recovering the species than suitable habitat isolated from known 
nesting habitat (USFWS 1995; USFWS 1997, p. 20). Similarly, marbled 
murrelets are more likely to discover newly developing habitat in 
proximity to sites with documented nesting behaviors. Because the 
presence of marbled murrelets in a forest stand may attract other pairs 
to currently unused habitat within the vicinity, the potential use of 
these areas may depend on how close the new habitat is to known nesting 
habitat, as well as distance to the marine environment, population 
size, and other factors (McShane et al. 2004, p. 4-78).
    Marbled murrelets are believed to be highly vulnerable to predation 
when on the nesting grounds, and the species has evolved a variety of 
morphological and behavioral characteristics indicative of selection 
pressures from predation (Ralph et al. 1995b, p. 13). For example, 
plumage and eggshells exhibit cryptic coloration, and adults fly to and 
from nests by indirect routes and often under low-light conditions 
(Nelson and Hamer 1995a, p. 66). Potential nest predators include the 
great horned owl (Bubo virginianus), Cooper's hawk (Accipiter 
cooperii), barred owl (Strix varia), northwestern crow (Corvus 
caurinus), American crow (Corvus brachyrhynchos), and gray jay 
(Perisoreus canadensis) (Nelson and Hamer 1995b, p. 93; Marzluff et al. 
1996, p. 22; McShane et al. 2004, p. 2-17). The common raven (Corvus 
corax), Steller's jay (Cyanocitta stelleri), and sharp-shinned hawk 
(Accipiter striatus) are known predators of eggs or chicks (Nelson and 
Hamer 1995b, p. 93, McShane et al. 2004, pp. 2-16-2-17). Based on 
experimental work with artificial nests, predation on eggs and chicks 
by squirrels and mice may also occur (Luginbuhl et al. 2001, p. 563; 
Bradley and Marzluff 2003, pp. 1183-1184). In addition, a squirrel has 
been documented rolling a recently abandoned egg off a nest (Malt and 
Lank 2007, p. 170).
    From 1974 through 1993, of those marbled murrelet nests in 
Washington, Oregon, and California where nest success or failure was 
documented, approximately 64 percent of the nests failed. Of those 
nests, 57 percent failed due to predation (Nelson and Hamer 1995b, p. 
93). Continuing research further supports predation as a significant 
cause of nest failure (McShane et al. 2004, pp. 2-16 to 2-19; Peery et 
al. 2004, pp. 1093-1094; Hebert and Golightly 2006, pp. 98-99; Hebert 
and Golightly 2007, pp. 222-223; Malt and Lank 2007, p. 165). The 
relatively high predation rate could be biased because nests near 
forest edges may be more easily located by observers and also more 
susceptible to predation, and because observers may attract predators. 
However, Nelson and Hamer (1995b, p. 94) believed that researchers had 
minimal impacts on predation in most cases because the nests were 
monitored from a distance and relatively infrequently, and precautions 
were implemented to minimize predator attraction. More recent research 
has relied on remotely operated cameras for observing nests, rather 
than people, in order to reduce the possible effects of human 
attraction (Hebert and Golightly 2006, p. 12; Hebert and Golightly 
2007, p. 222).
    Several possible reasons exist for the high observed predation 
rates of marbled murrelet nests. One possibility is that these high 
predation rates are normal, although it is unlikely that a stable 
population could have been maintained historically under the predation 
rates observed (Beissinger 1995, p. 390).
    In the 1996 rule we hypothesized that populations of marbled 
murrelet predators such as corvids (jays, crows, and ravens) and great 
horned owls are increasing in the western United States,

[[Page 51354]]

largely in response to habitat changes and food sources provided by 
humans (Robbins et al. 1986, pp. 43-46; Johnson 1993, pp. 58-60; 
Marzluff et al. 1994, pp. 214-216; National Biological Service 1996, 
entire), resulting in increased predation rates on marbled murrelets. 
Subsequent to the 1996 rule, surveys have confirmed that corvid 
populations are indeed increasing in western North America as a result 
of land use and urbanization (Marzluff et al. 2001, pp. 332-333; 
McShane et al. 2004, pp. 6-11; Sauer et al. 2013, pp. 18-19). However, 
breeding bird surveys in North America indicate that great horned owls 
are declining in 40 percent of the areas included in the surveys (Sauer 
et al. 2013, p. 17). Barred owls (Strix varia), foraging generalists 
that may prey on marbled murrelets, were not considered in 1996, but 
have subsequently been shown to be significantly increasing in numbers 
and distribution (Sauer et al. 2013, p. 17).
    In the 1996 rule, we also posited that creation of greater amounts 
of forest edge habitat may increase the vulnerability of marbled 
murrelet nests to predation and ultimately lead to higher rates of 
predation. Edge effects have been implicated in increased forest bird 
nest predation rates for other species of birds (Chasko and Gates 1982, 
pp. 21-23; Yahner and Scott 1988, p. 160). In a comprehensive review of 
the many studies on the potential relationship between forest 
fragmentation, edge, and adverse effects on forest nesting birds, Paton 
(1994, p. 25) concluded that ``strong evidence exists that avian nest 
success declines near edges.'' Small patches of habitat have a greater 
proportion of edge than do large patches of the same shape. However, 
many of the studies Paton (1994, entire) reviewed involved lands where 
forests and agricultural or urban areas interface, or they involved 
experiments with ground nests that are not readily applicable to canopy 
nesters such as marbled murrelets. Paton (1994, p. 25), therefore, 
stressed the need for studies specific to forests fragmented by timber 
harvest in the Pacific Northwest and elsewhere.
    Some research on this topic has been conducted in areas dominated 
by timber production and using nests located off the ground (Ratti and 
Reese 1988, entire; Rudnicky and Hunter 1993, entire; Marzluff et al. 
1996, entire; Vander Haegen and DeGraaf in press, entire). Vander 
Haegen and DeGraaf (in press, p. 8; 1996, pp. 175-176) found that nests 
in shrubs less than 75 m (246 ft) from an edge were three times as 
likely to be depredated than nests greater than 75 m (264 ft) from an 
edge. Likewise, Rudnicky and Hunter (1993, p. 360) found that shrub 
nests on the forest edge were depredated almost twice as much as shrub 
nests located in the forest interior. They also observed that shrub 
nests were taken primarily by avian predators such as crows and jays, 
which is consistent with the predators believed to be impacting marbled 
murrelets, while ground nests were taken by large mammals such as 
raccoons and skunks. Ratti and Reese (1988, entire) did not find the 
edge relationship documented by Rudnicky and Hunter (1993, entire), 
Vander Haegen and DeGraaf (in press), and others cited in Paton (1994, 
entire). However, Ratti and Reese (1988, p. 488) did observe lower 
rates of predation near ``feathered'' edges compared to ``abrupt'' 
edges (e.g., clearcut or field edges), and suggested that the 
vegetative complexity of the feathered edge may better simulate natural 
edge conditions than do abrupt edges. These authors also concluded that 
their observations were consistent with Gates and Gysel's (1978, p. 
881) hypothesis that birds are poorly adapted to predator pressure near 
abrupt artificial edge zones.
    Studies of artificial and natural nests conducted in Pacific 
Northwest forests also indicate that predation of forest bird nests may 
be affected by habitat fragmentation, forest management, and land 
development (Hansen et al. 1991, p. 388; Vega 1993, pp. 57-61; Bryant 
1994, pp. 14-16; Nelson and Hamer 1995b, pp. 95-97; Marzluff et al. 
1996, pp. 31-35). Nelson and Hamer (1995b, p. 96) found that successful 
marbled murrelet nests were further from edge than unsuccessful nests. 
Marzluff et al. (1996, entire) conducted experimental predation studies 
that used simulated marbled murrelet nests, and more recent research 
documented predation of artificial marbled murrelet nests by birds and 
arboreal mammals (Luginbuhl et al. 2001, pp. 562-563; Bradley and 
Marzluff 2003, pp. 1183-1884; Marzluff and Neatherlin 2006, p. 310; 
Malt and Lank 2007, p. 165). Additionally, more recent research 
indicates proximity to human activity and landscape contiguity may 
interact to determine rate of predation (Marzluff et al. 2000, pp. 
1136-1138, Raphael et al. 2002a, entire; Zharikov et al. 2006, p. 117; 
Malt and Lank 2007, p. 165). Interior forest nests in contiguous stands 
far from human activity appear to experience the least predation 
(Marzluff et al. 1996, p. 29; Raphael et al. 2002a, pp. 229-231).
    More recent information indicates that marbled murrelets locate 
their nests throughout forest stands and fragments, including along 
various types of natural and human-made edges (Hamer and Meekins 1999, 
p. 1; Manley 1999, p. 66; Bradley 2002, pp. 42, 44; Burger 2002, p. 48; 
Nelson and Wilson 2002, p. 98). In California and southern Oregon, 
areas with abundant numbers of marbled murrelets were farther from 
roads, occurred more often in parks protected from logging, and were 
less likely to occupy old-growth habitat if they were isolated (greater 
than 3 mi (5 km)) from other nesting marbled murrelets (Meyer et al. 
2002, pp. 95, 102-103). Marbled murrelets no longer occur in areas 
without suitable forested habitat, and they appear to abandon highly 
fragmented areas over time (areas highly fragmented before the late 
1980s generally did not support marbled murrelets by the early 1990s) 
(Meyer et al. 2002, p. 103).
    The conversion of large tracts of native forest to small, isolated 
forest patches with large edge can create changes in microclimate, 
vegetation species, and predator-prey dynamics--such changes are often 
collectively referred to as ``edge effects.'' Unfragmented, older-aged 
forests have lower temperatures and solar radiation and higher humidity 
compared to clearcuts and other open areas (e.g., Chen et al. 1993, p. 
219; Chen et al. 1995, p. 74). Edge habitat is also exposed to 
increased temperatures and light, high evaporative heat loss, increased 
wind, and decreased moisture. Fundamental changes in the microclimate 
of a stand have been recorded at least as far as 787 ft (240 m) from 
the forest edge (Chen et al. 1995, p. 74). The changes in microclimate 
regimes with forest fragmentation can stress an old-growth associate 
species, especially a cold-water adapted seabird such as the marbled 
murrelet (Meyer and Miller 2002, p. 764), and can affect the 
distribution of epiphytes that marbled murrelets use for nesting. 
Branch epiphytes or substrate have been identified as a key component 
of marbled murrelet nests (Nelson et al. 2003, p. 52; McShane et al. 
2004, pp. 4-48, 4-89, 4-104). While there are no data on the specific 
effects of microclimate changes on the availability of marbled murrelet 
nesting habitat at the scale of branches and trees, as discussed in the 
references above, the penetration of solar radiation and warm 
temperatures into the forest could change the distribution of 
epiphytes, and wind could blow moss off nesting platforms.
    A large body of research indicates that marbled murrelet 
productivity is greatest in large, complex-structured forests far from 
human activity due to the reduced levels of predation present in such 
landscapes. Marbled murrelet productivity is lowest in fragmented

[[Page 51355]]

landscapes; therefore, marbled murrelet nesting stands may be more 
productive if surrounded by simple-structured forests, and minimal 
human recreation and settlement. Human activities can significantly 
compromise the effectiveness of the forested areas surrounding nests to 
protect the birds and/or eggs from predation (Huhta et al. 1998, p. 
464; Marzluff et al. 1999, pp. 3-4; Marzluff and Restani 1999, pp. 7-9, 
11; Marzluff et al. 2000, pp. 1136-1138; De Santo and Willson 2001, pp. 
145-147; Raphael et al. 2002a, p. 221; Ripple et al. 2003, p. 80).
    In addition to studies of edge effects, some research initiated 
prior to 1996 looked at the importance of stand size. Among all Pacific 
Northwest birds, the marbled murrelet is considered to be one of the 
most sensitive to forest fragmentation (Hansen and Urban 1992, p. 168). 
Marbled murrelet nest stand size in Washington, Oregon, and California 
varied between 7 and 2,717 ac (3 and 1,100 ha) and averaged 509 ac (206 
ha) (Hamer and Nelson 1995, p. 73). Nelson and Hamer (1995b, p. 96) 
found that successful marbled murrelets tended to nest in larger stands 
than did unsuccessful marbled murrelets, but these results were not 
statistically significant. Miller and Ralph (1995, entire) compared 
marbled murrelet survey detection rates among four stand size classes 
in California. Recording a relatively consistent trend, they observed 
that a higher percentage of large stands (33.3 percent) had nesting 
behavior detections when compared to smaller stands (19.8 percent), 
while a greater percentage of the smallest stands (63.9 percent) had no 
presence or nesting behavior detections when compared to the largest 
stands (52.4 percent) (Miller and Ralph 1995, pp. 210-212). However, 
these results were not statistically significant, and the authors did 
not conclude that marbled murrelets preferentially select or use larger 
stands. The authors suggested the effects of stand size on marbled 
murrelet presence and use may be masked by other factors such as stand 
history and proximity of a stand to other old-growth stands. Rodway et 
al. (1993, p. 846) recommended caution when interpreting marbled 
murrelet detection data, such as that used by Miller and Ralph (1995), 
because numbers of detections at different sites may be affected by 
variation caused by weather, visibility, and temporal shifts.
    In addition to stand size, general landscape condition may 
influence the degree to which marbled murrelets nest in an area. In 
Washington, marbled murrelet detections increased when old-growth/
mature forests make up more than 30 percent of the landscape (Hamer and 
Cummins 1990, p. 43). Hamer and Cummins (1990, p. 43) found that 
detections of marbled murrelets decreased in Washington when the 
percentage of clear-cut/meadow in the landscape increased above 25 
percent. Additionally, Raphael et al. (1995, p. 177) found that the 
percentage of old-growth forest and large sawtimber was significantly 
greater within 0.5 mi (0.8 km) of sites (501-ac (203-ha) circles) that 
were used by nesting marbled murrelets than at sites where they were 
not detected. Raphael et al. (1995, p. 189) suggested tentative 
guidelines based on this analysis that sites with 35 percent old-growth 
and large sawtimber in the landscape are more likely to be used for 
nesting. In California, Miller and Ralph (1995, pp. 210-211) found that 
the density of old-growth cover and the presence of coastal redwood 
were the strongest predictors of marbled murrelet presence.
    In summary, the best scientific information available strongly 
suggests that marbled murrelet reproductive success may be adversely 
affected by forest fragmentation associated with either natural 
disturbances, such as severe fire or windthrow, or certain land 
management practices, generally associated with timber harvest or 
clearing of forest. Based on this information, the Service concluded 
that the maintenance and development of suitable habitat in relatively 
large contiguous blocks as described in the 1996 rule and the draft 
Marbled Murrelet (Washington, Oregon, and California Population) 
Recovery Plan (draft recovery plan) (USFWS 1995, pp. 70-71, finalized 
in 1997) would contribute to the recovery of the marbled murrelet. 
These blocks of habitat should contain the structural features and 
spatial heterogeneity naturally found at the landscape level, the stand 
level, and the individual tree level in Pacific Northwest forest 
ecosystems (Hansen et al. 1991, pp. 389-390; Hansen and Urban 1992, pp. 
171-172; Ripple 1994, p. 48; Bunnell 1995, p. 641; Raphael et al. 1995, 
p. 189). Newer information further supports the conclusion that the 
maintenance of suitable nesting habitat in relatively large, contiguous 
blocks will be needed to recover the marbled murrelet (Meyer and Miller 
2002, pp. 763-764; Meyer et al. 2002, p. 95; Miller et al. 2002, pp. 
105-107; Raphael et al. 2011, p. 44).

Summary of Physical or Biological Features Essential to the 
Conservation of the Marbled Murrelet

    Therefore, based on the information presented in the 1996 final 
critical habitat rule and more recent data that continue to confirm the 
conclusions drawn in that rule, we consider the physical or biological 
features essential to the conservation of the marbled murrelet to 
include forests that are capable of providing the characteristics 
required for successful nesting by marbled murrelets. Such forests are 
typically coniferous forests in contiguous stands with large core areas 
of old-growth or trees with old-growth characteristics and a low ratio 
of edge to interior. However, due to timber harvest history we 
recognize that, in some areas, such as south of Cape Mendocino in 
California, coniferous forests with relatively smaller core areas of 
old-growth or trees with old-growth characteristics are essential for 
the conservation of the marbled murrelet because they are all that 
remain on the landscape. Forests capable of providing for successful 
nesting throughout the range of the listed DPS are typically dominated 
by coastal redwood, Douglas-fir, mountain hemlock, Sitka spruce, 
western hemlock, or western red cedar, and must be within flight 
distance to marine foraging areas for marbled murrelets.
    The most important characteristic of marbled murrelet nesting 
habitat is the presence of nest platforms. These structures are 
typically found in old-growth and mature forests, but can also be found 
in a variety of forest types including younger forests containing 
remnant large trees. Potential nesting areas may contain fewer than one 
suitable nesting tree per acre and nest trees may be scattered or 
clumped throughout the area. Large areas of unfragmented forest are 
necessary to minimize edge effects and reduce the impacts of nest 
predators to increase the probability of nest success. Forests are 
dynamic systems that occur on the landscape in a mosaic of successional 
stages, both as the result of natural disturbances (fire, windthrow) or 
anthropogenic management (timber harvest). On a landscape basis, 
forests with a canopy height of at least one-half the site-potential 
tree height in proximity to potential nest trees contribute to the 
conservation of the marbled murrelet. Trees of at least one-half the 
site-potential height are tall enough to reach up into the lower canopy 
of nest trees, which provides nesting murrelets more cover from 
predation. The site-potential tree height

[[Page 51356]]

is the average maximum height for trees given the local growing 
conditions, and is based on species-specific site index tables. The 
earlier successional stages of forest also play an essential role in 
providing suitable nesting habitat for the marbled murrelet, as they 
proceed through successional stages and develop into the relatively 
large, unfragmented blocks of suitable nesting habitat needed for the 
conservation of the species.

III. Primary Constituent Elements for the Marbled Murrelet

    As stated above under Previous Federal Actions, the rule revising 
50 CFR 424.12 was published on February 11, 2016 (81 FR 7413), and 
became effective on March 14, 2016, and the revised version of Sec.  
424.12 applies only to rulemakings for which the proposed rule is 
published after that date. Thus, the prior version of Sec.  424.12 will 
continue to apply to any rulemakings for which a proposed rule was 
published before that date. Because the proposed rule for marbled 
murrelet critical habitat was published on August 25, 2015, this final 
rule follows the version of Sec.  424.12 that was in effect prior to 
March 14, 2016.
    According to 50 CFR 424.12(b), we are required to identify the 
physical or biological features essential to the conservation of the 
marbled murrelet within the geographical area occupied at the time of 
listing, focusing on the ``primary constituent elements'' (PCEs) of 
those features. We consider PCEs to be those specific elements of the 
physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species. 
For the marbled murrelet, those life-history processes associated with 
terrestrial habitat are specifically related to nesting. Therefore, as 
previously described in our designation of critical habitat for the 
marbled murrelet (61 FR 26256; May 24, 1996), and further supported by 
more recent information, our designation of critical habitat focused on 
the following PCEs specific to the marbled murrelet:
    (1) Individual trees with potential nesting platforms, and
    (2) forested areas within 0.5 mile (0.8 kilometer) of individual 
trees with potential nesting platforms, and with a canopy height of at 
least one-half the site-potential tree height. This includes all such 
forest, regardless of contiguity.
    These PCEs are essential to provide and support suitable nesting 
habitat for successful reproduction of the marbled murrelet.

IV. Special Management Considerations or Protection

    In our evaluation of whether the current designation meets the 
statutory definition of critical habitat, we assessed not only whether 
the specific areas 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, but also whether those 
features may require special management considerations or protection. 
Here we describe the special management considerations or protections 
that apply to the physical or biological features and PCEs identified 
for the marbled murrelet.
    As discussed above and in the 1996 final rule designating critical 
habitat (May 24, 1996; 61 FR 26261-26263), marbled murrelets are found 
in forests containing a variety of forest structure, which is in part 
the result of varied management practices and natural disturbance 
(Hansen et al. 1991, p. 383; McComb et al. 1993, pp. 32-36). In many 
areas, management practices have resulted in fragmentation of the 
remaining older forests and creation of large areas of younger forests 
that have yet to develop habitat characteristics suitable for marbled 
murrelet nesting (Hansen et al. 1991, p. 387). Past and current forest 
management practices have also resulted in a forest age distribution 
skewed toward younger even-aged stands at a landscape scale (Hansen et 
al. 1991, p. 387; McComb et al. 1993, p. 31). Bolsinger and Waddell 
(1993, p. 2) estimated that old-growth forest in Washington, Oregon, 
and California had declined by two-thirds statewide during the previous 
five decades.
    Current and historical loss of marbled murrelet nesting habitat is 
generally attributed to timber harvest and land conversion practices, 
although, in some areas, natural catastrophic disturbances such as 
forest fires have caused losses (Hansen et al. 1991, pp. 383, 387; 
Ripple 1994, p. 47; Bunnell 1995, pp. 638-639; Raphael et al. 2011, pp. 
34-39; Raphael et al. 2015 in prep, pp. 94-96). Reduction of the 
remaining older forest has not been evenly distributed in western 
Washington, Oregon, and California. Timber harvest has been 
concentrated at lower elevations and in the Coast Ranges (Thomas et al. 
1990, p. 63), generally overlapping the range of the marbled murrelet. 
In California today, more than 95 percent of the original old-growth 
redwood forest has been logged, and 95 percent of the remaining old-
growth is now in parks or reserves (Roa 2007, p. 169).
    Some of the forests that were affected by past natural 
disturbances, such as forest fires and windthrow, currently provide 
suitable nesting habitat for marbled murrelets because they retain 
scattered individual or clumps of large trees that provide structure 
for nesting (Hansen et al. 1991, 383; McComb et al. 1993, p. 31; 
Bunnell 1995, p. 640). This is particularly true in coastal Oregon 
where extensive fires occurred historically. Marbled murrelet nests 
have been found in remnant old-growth trees in mature and young forests 
in Oregon. Forests providing suitable nesting habitat and nest trees 
generally require 200 to 250 years to develop characteristics that 
supply adequate nest platforms for marbled murrelets. This time period 
may be shorter in redwood and western hemlock forests and in areas 
where significant remnants of the previous stand remain. Intensively 
managed forests in Washington, Oregon, and California have been managed 
on average cutting rotations of 70 to 120 years (USDI 1984, p. 10). 
Cutting rotations of 40 to 50 years are common for some private lands. 
Timber harvest strategies on Federal lands and some private lands have 
emphasized dispersed clear-cut patches and even-aged management. Forest 
lands that are intensively managed for wood fiber production are 
generally prevented from developing the characteristics required for 
marbled murrelet nesting. In addition, suitable nesting habitat that 
remains under these harvest patterns is highly fragmented.
    Within the range of the marbled murrelet on Federal lands, the 
Northwest Forest Plan (NWFP) (USDA and USDI 1994, entire) designated a 
system of Late Successional Reserves (LSRs), which provides large areas 
expected to eventually develop into contiguous, unfragmented forest. In 
addition to LSRs, the NWFP designated a system of Adaptive Management 
Areas, where efforts focus on answering management questions, and 
matrix areas, where most forest production occurs. Administratively 
withdrawn lands, as described in the individual National Forest or BLM 
land use plans, are also part of the NWFP.
    In the 1996 final rule, we acknowledged the value of implementation 
of the NWFP as an integral role in marbled murrelet conservation. As a 
result, designated critical habitat on lands within the NWFP area 
administered by the National Forests and BLM was congruent with LSRs. 
These areas, as managed under the NWFP, should develop into large 
blocks of suitable murrelet nesting habitat given sufficient

[[Page 51357]]

time. However, LSRs are plan-level designations with less assurance of 
long-term persistence than areas designated by Congress. Designation of 
LSRs as critical habitat complements and supports the NWFP and helps to 
ensure persistence of this management directive over time. These lands 
managed under the NWFP require special management considerations or 
protection to allow the full development of the essential physical or 
biological features as represented by large blocks of forest with the 
old-growth characteristics that will provide suitable nesting habitat 
for marbled murrelets.
    In some areas, the large blocks of Federal land under the NWFP are 
presently capable of providing the necessary contribution for recovery 
of the species. However, the marbled murrelet's range includes areas 
that are south of the range of the northern spotted owl (the focus of 
the NWFP), where Federal lands are subject to timber harvest. 
Therefore, the critical habitat designated on Federal lands outside of 
the NWFP also require special management considerations or protection 
to enhance or restore the old-growth characteristics required for 
nesting by marbled murrelets, and to attain the large blocks of 
contiguous habitat necessary to reduce edge effects and predation.
    In the 1996 critical habitat rule (May 24, 1996; 61 FR 26256), the 
Service designated selected non-Federal lands that met the requirements 
identified in the Criteria for Identifying Critical Habitat section, in 
those areas where Federal lands alone were insufficient to provide 
suitable nesting habitat for the recovery of the species. For example, 
State lands were considered to be particularly important in 
southwestern Washington, northwestern Oregon, and in California south 
of Cape Mendocino. Small segments of county lands were also included in 
northwestern Oregon and central California. Some private lands were 
designated as critical habitat because they provided essential elements 
and occurred where Federal lands were, and continue to be, very 
limited, although suitable habitat on private land is typically much 
more limited than on public lands. In California, south of Cape 
Mendocino, State, county, city, and private lands contain the last 
remnants of nesting habitat for the southernmost population of 
murrelets, which is the smallest, most isolated, and most susceptible 
to extirpation. All of the non-Federal lands have been and continue to 
be subject to some amount of timber harvest and habitat fragmentation 
and lower habitat effectiveness due to human activity. Therefore, all 
non-Federal lands within the designation require special management 
considerations or protection to preserve suitable nesting habitat where 
it is already present, and to provide for the development of suitable 
nesting habitat in areas currently in early successional stages.
    In summary, areas that provide the essential physical or biological 
features and PCEs for the marbled murrelet may require special 
management considerations or protection. Because succession has been 
set back or fragmentation has occurred due to either natural or 
anthropogenic disturbance, those essential features may require special 
management considerations or protections to promote the development of 
the large, contiguous blocks of unfragmented, undisturbed coniferous 
forest with old-growth characteristics (i.e., nest platforms) required 
by marbled murrelets. Areas with these characteristics provide the 
marbled murrelet with suitable nesting habitat, and reduce edge 
effects, such as increased predation, resulting in greater nest success 
for the species. Areas that currently provide suitable nesting habitat 
for the marbled murrelet may require protection to preserve those 
essential characteristics, as the development of old-growth 
characteristics may take hundreds of years and thus cannot be easily 
replaced once lost.

V. Definition of Geographical Area Occupied at the Time of Listing

    Critical habitat is defined as ``the specific areas within the 
geographical area occupied by the species, at the time it is listed'' 
under section (3)(5)(A)(i) of the Act, on which are found those 
physical or biological features essential to the conservation of the 
species and which may require special management considerations or 
protection. For the purposes of critical habitat, the Service must 
first determine what constitutes the geographical area occupied by the 
species at the time of listing. We consider this to be a relatively 
broad-scale determination, as the wording of the Act clearly indicates 
that the specific areas that constitute critical habitat will be found 
within some larger geographical area. We consider the ``geographical 
area occupied by the species'' at the time of listing, for the purposes 
of section 3(5)(A)(i), to be the area that may be broadly delineated 
around the occurrences of a species, or generally equivalent to what is 
commonly understood as the ``range'' of the species. We consider a 
species occurrence to be a particular location in which individuals of 
the species are found throughout all or part of their life cycle, even 
if not used on a regular basis (e.g., migratory corridors, seasonal 
habitats, and habitats used periodically, but not solely by vagrant 
individuals). Because the ``geographical area occupied by the species'' 
can, depending on the species at issue and the relevant data available, 
be defined on a relatively broad, coarse scale, individuals of the 
species may or may not be present within each area at a smaller scale 
within the geographical area occupied by the species. For the purposes 
of critical habitat, then, we consider an area to be ``occupied'' 
(within the geographical area occupied by the species) if it falls 
within the broader area delineated by the species' occurrences, i.e., 
its range.
    Within the listed DPS, at-sea observations indicate marbled 
murrelets use the marine environment along the Pacific Coast from the 
British Columbia, Canada/Washington border south to the Mexico/
California border. Because they must fly back and forth to the nest 
from their marine foraging areas, marbled murrelets use inland areas 
for nesting that are nearby to those areas used by the species 
offshore. The inland extent of terrestrial habitat use varies from 
north to south and depends upon the presence of nesting structures in 
relation to marine foraging areas. Marbled murrelets have been detected 
as far inland as 70 miles (mi) (113 kilometers (km)) in Washington, but 
the inland extent narrows going south, where marbled murrelets 
generally occur within 25 mi (40 km) of the coast in California. At a 
broad scale, the geographical area occupied by the listed DPS of the 
marbled murrelet at the time of listing includes the west coast from 
the British Columbia, Canada/Washington border south to the Mexico/
California border, ranging inland from approximately 70 mi (113 km) in 
Washington to roughly 25 mi (40 km) of the coast in California. 
However, the inland nesting habitat extends southward in California 
only to just south of Monterey Bay. Occurrence data that supports this 
geographic range includes at-sea surveys, radar detections, radio-
telemetry studies, and audiovisual surveys.
    At the time the marbled murrelet was listed (October 1, 1992; 57 FR 
45328), occurrence data were very limited. However, the geographic 
range was generally known at that time, with the exception of the exact 
inland extent.
    We now describe what is known about marbled murrelet use of the 
critical habitat subunits that were designated in 1996, as revised in 
2011. In 1996, only terrestrial areas were

[[Page 51358]]

designated as critical habitat. Terrestrial habitat is used by the 
marbled murrelet only for the purpose of nesting; therefore, we focus 
on those specific areas used for nesting by the species. Because we did 
not designate critical habitat in the marine environment, that aspect 
of the species' life history or available data will not be discussed 
further, unless it is pertinent to the terrestrial habitat.
    At the landscape scale, marbled murrelets show fidelity to marine 
foraging areas and may return to specific watersheds for nesting 
(Nelson 1997, pp. 13, 16-17, 20; Cam et al. 2003, p. 1123). For 
example, marbled murrelets have been observed to return to the same 
specific nest branches or sites (Hebert and Golightly 2006, p. 270; 
Bloxton and Raphael 2009, p. 11). Repeated surveys in nesting stands 
have revealed site tenacity similar to that of other birds in the alcid 
family (Huff et al. 2006, p. 12) in that marbled murrelets have been 
observed in the same suitable habitat areas for more than 20 years in 
California and Washington. Based on the high site tenacity exhibited by 
marbled murrelets, it is highly likely that areas found to be used by 
marbled murrelets since listing in 1992 were also being used at the 
time of listing. Therefore, in order to determine whether any 
particular area was being used at the time the marbled murrelet was 
listed, we used all years of survey data available to us (for example, 
through 2013 in Washington, and some data through 2014 for California).
    Not all survey data are indicative of nesting. The specific types 
of data that we relied upon include audiovisual surveys and specific 
nest locations, which may have been located through radio-telemetry 
studies, tree climbing, chicks on the ground, or eggshell fragments. 
Audiovisual surveys result in a variety of detections, only some of 
which are specific indicators of nesting behavior tied to the area 
being surveyed. The types of behaviors that are indicative of nesting 
include: sub-canopy behaviors, circling above the canopy, and 
stationary calling. Other types of detections, such as radar and fly-
overs observed during audiovisual surveys, provide information 
regarding the general use of an area, but generally do not tie the 
observed individual(s) to a specific forested area (Evans Mack et al. 
2003, pp. 20-23).
    There continue to be gaps in our knowledge of marbled murrelet use 
in the terrestrial environment. Surveys are site/project specific and 
generally have been conducted for the purposes of allowing timber 
harvest. Surveys not conducted in adherence to the strict protocol may 
have missed nesting behaviors due to the cryptic nature of marbled 
murrelets and their nests. For example, a single visit to a location 
where marbled murrelets are present has only a 55 percent chance of 
detecting marbled murrelets (Evans Mack et al. 2003, p. 39). In 
addition, on some lands, such as Federal LSRs, our history of 
consultation under section 7 of the Act demonstrates that, in general, 
land managers choose not to conduct surveys to determine site 
``presence''; rather they consider the suitable habitat to be used by 
nesting murrelets and adjust their projects accordingly. Therefore, we 
recognize that our information regarding marbled murrelet use of the 
terrestrial landscape is incomplete; however, we have determined that 
the information used in this document is the best scientific data 
available.
    We consider the geographical area occupied by the species at the 
time of listing for the purposes of critical habitat to be equivalent 
to the nesting range of the marbled murrelet, for the reasons described 
above. However, it is important to note that, at the time of listing, 
we may not have had data that definitively demonstrated the presence of 
nesting murrelets within each specific area designated as critical 
habitat. Some of these areas still lack adequate survey information. 
Yet because these areas fall within the broader nesting range of the 
species, we consider them to have been occupied at the time of listing. 
For the purposes of clarity, we further evaluated the specific areas 
within that broader geographic range to determine whether we have 
documented detections of behaviors indicative of nesting by the marbled 
murrelet at the scale of each subunit. The following types of data are 
indicative of the marbled murrelet's use of forested areas for nesting 
and will be relied upon to make the determination of whether we have 
documentation of nesting behavior by critical habitat subunit:
    (a) Data indicative of nesting behavior. A subunit with any of the 
following data will be considered to have a documented detection of 
nesting behavior. We consider one detection in a subunit sufficient to 
support a positive nesting behavior determination for the entire 
subunit.
    (1) Audiovisual surveys conducted according to the Pacific Seabird 
Group (PSG) survey protocol (Evans Mack et al. 2003 or earlier 
versions). Detection types that are indicative of nesting include: sub-
canopy behaviors (such as flying through the canopy or landing), 
circling above the canopy, and stationary calling.
    (2) Nest locations obtained through radio-telemetry tracking, tree 
climbing, eggshell fragments, and chicks on the ground.
    (b) Contiguity of forested areas within which nesting behaviors 
have been observed. According to the PSG protocol (Evans Mack et al. 
2003), a contiguously forested area with detections indicative of 
nesting behavior is deemed to be used by nesting marbled murrelets 
throughout its entirety. Therefore, any subunits where there were no 
detections of behaviors indicative of nesting or possibly no surveys, 
but the forested areas in the subunit are contiguous with forested 
areas extending outside of the subunit within which there are 
documented nesting behaviors, will be deemed to be positive in terms of 
a nesting behavior detection.
    Radar-based marbled murrelet detections and presence-only 
detections (such as flying over or heard only) resulting from 
audiovisual surveys were not used to classify a subunit as positive in 
terms of nesting behavior detections. Even though these detections 
indicate use of an area by marbled murrelets, these types of detections 
do not link murrelet nesting to specific areas of forested habitat.
    In Washington and California, occurrence data, including nest 
locations and audiovisual survey data, are maintained in State wildlife 
agency databases. The Washington Department of Fish and Wildlife 
marbled murrelet data was obtained by the Service on June 19, 2014, and 
includes data collected through 2013. The California Department of Fish 
and Wildlife's marbled murrelet occurrence database, as currently 
maintained by the Arcata Fish and Wildlife Office, was accessed on 
February 5, 2015. The database includes information on some surveys 
conducted through 2006, with one observation from 2014, but is 
incomplete for the State. Audiovisual surveys in Oregon are not 
maintained in a centralized database. The Service, through a 
cooperative agreement, provided funds to the Oregon State University to 
obtain and collate Oregon survey data. The data provided to the Service 
included surveys through 2003, mainly on Federal lands. Additionally, 
the BLM and Oregon Department of Forestry provided a summary of current 
survey data, as of March 2015, within critical habitat in Oregon. 
Survey data for private lands in Oregon were not available.

[[Page 51359]]

VI. Specific Areas Occupied at the Time of Listing

    We have determined that all 101 subunits designated as critical 
habitat in 1996, as revised in 2011, are within the geographical range 
occupied by the species at the time of listing, and all 101 subunits 
contain the physical or biological features and PCEs essential to the 
conservation of the species. Evidence of the presence of PCEs is based 
on nests located within a subunit, nesting behavior detections, 
audiovisual survey station placements (generally surveys are conducted 
only if there are nesting platforms present in the forested area), and 
specific forest inventory data. All of these forms of evidence point to 
the presence of PCE 1, nesting platforms, within the subunit, as well 
as the presence of PCE 2. In addition, within all 101 subunits, the 
essential physical or biological features and PCEs may require special 
management considerations or protection, as described above, because 
these subunits have received or continue to receive some level of 
timber harvest, fragmentation of the forested landscape, and reduced 
habitat effectiveness from human activity. Therefore, all 101 subunits 
meet the definition of critical habitat under section 3(5)(A)(i) of the 
Act.
    Of the 101 subunits, 78 (all critical habitat subunits except for 
those identified in Table 1, below) have either specific nesting 
behavior detection data within the subunit or forested areas within the 
subunit that are contiguous with forested areas within which nesting 
behaviors have been observed. In total, the 78 subunits with nesting 
behavior detections account for 3,335,400 ac (1,349,800 ha), or 90 
percent of the total designation. These 78 subunits all contain the 
physical or biological features and PCEs essential to the conservation 
of the species, which may require special management considerations or 
protection, as described above, because these subunits have received or 
continue to receive some level of timber harvest, fragmentation of the 
forested landscape, and reduced habitat effectiveness from human 
activity. Therefore, we conclude that these 78 subunits meet the 
definition of critical habitat under section 3(5)(A)(i) of the Act.

 Table 1--Marbled Murrelet Critical Habitat Subunits Without Detections
                     Indicative of Nesting Behavior
------------------------------------------------------------------------
                                 Subunit
-------------------------------------------------------------------------
WA-04a
WA-11d
OR-01d
OR-06a
OR-06c
OR-07f
OR-07g
CA-01d
CA-01e
CA-04b
CA-05a
CA-05b
CA-06a
CA-06b
CA-07b
CA-07c
CA-08a
CA-08b
CA-09a
CA-09b
CA-11b
CA-13
CA-14c
------------------------------------------------------------------------

    There are 23 subunits that did not have data indicating marbled 
murrelet nesting behaviors at the time of listing (Table 1). All of 
these subunits, however, are within the range of the species at the 
time of listing, and, hence, we consider them to be occupied. Of these 
23 subunits, 2 are in Washington, 5 are in Oregon, and 16 are in 
California, totaling up to 362,600 ac (145,800 ha) or 10 percent of the 
designation. We have determined that all 23 subunits contain the 
essential physical or biological features and PCEs based on specific 
forest inventory data and audiovisual survey station placements. Only 7 
of these 23 subunits have received partial or complete surveys to 
determine use by marbled murrelets. Very limited inland distribution 
information was available when the species was listed (1992) and in 
1996 when critical habitat was designated (May 24, 1996; 61 FR 26256, 
pp. 26269-26270). However, continued survey efforts have filled in gaps 
in the distribution that were not known at the time of listing. For 
example, as of June 2014, the Washington Department of Fish and 
Wildlife murrelet detection database contained 5,225 nesting behavior 
detections. Of these 5,225 detections, only 254 were from surveys 
before 1992, and only 2,149 were prior to 1996. Therefore, our opinion 
is that, had surveys been conducted in many of these 23 subunits, 
nesting behaviors would likely have been detected.
    Even if these 23 subunits were considered unoccupied at the time of 
listing because we do not have specific documentation of nesting 
behaviors, the Act permits designation of such areas as critical 
habitat if they are essential for the conservation of the species. We 
evaluated whether each of these 23 subunits are essential for the 
conservation of the species. In this evaluation we considered: (1) The 
importance of the areas to the future recovery of the species; (2) 
whether the areas have or are capable of providing the essential 
physical or biological features; and (3) whether the areas provide 
connectivity between marine and terrestrial habitats. As stated above, 
we determined that all 23 subunits contain the physical or biological 
features and PCEs for the marbled murrelet; therefore, all 23 subunits 
provide essential nesting habitat that is currently limited on the 
landscape. In particular, 13 subunits in California that are south of 
Cape Mendocino contain the last remnants of nesting habitat in that 
part of California. All 101 designated subunits work together to create 
a distribution of essential nesting habitat from north to south and 
inland from marine foraging areas. All of the designated critical 
habitat units occur within areas identified in the draft and final 
recovery plans for the marbled murrelet (USFWS 1995 and 1997, entire) 
as essential for the conservation of the species. Maintaining and 
increasing suitable nesting habitat for the marbled murrelet is a key 
objective for the conservation and recovery of the species, by 
providing for increases in nest success and productivity needed to 
attain long-term population viability. Based upon this information, we 
have determined that all of the 23 subunits where nesting behaviors 
have not been documented are, nonetheless, essential for the 
conservation of the species. Therefore, even if these 23 subunits were 
considered unoccupied, we conclude that they meet the definition of 
critical habitat under section 3(5)(A)(ii) of the Act.

VII. All Critical Habitat Is Essential to the Conservation of the 
Marbled Murrelet

    As described above, all areas designated as critical habitat for 
the marbled murrelet (101 subunits) contain the physical or biological 
features and PCEs essential to the conservation of the species, which 
may require special management considerations or protection. We 
recognize that the physical or biological features and PCEs may not be 
uniformly distributed throughout these 101 subunits because historical 
harvest patterns and natural disturbances have created a mosaic of

[[Page 51360]]

multiple-aged forests. Replacement of essential physical or biological 
features and PCEs for the marbled murrelet can take centuries to grow.
    We have additionally evaluated all currently designated critical 
habitat for the marbled murrelet applying the standard under section 
3(5)(A)(ii) of the Act, and have determined that all 101 subunits 
included in this designation are essential for the conservation of the 
species. As detailed above, we have determined that all areas of 
critical habitat, whether known to be occupied at the time of listing 
or not, contain the physical or biological features and PCEs for the 
marbled murrelet. All 101 designated subunits work together to create a 
distribution of essential nesting habitat from north to south and 
inland from marine foraging areas, and occur within areas identified in 
the draft and final recovery plans for the marbled murrelet (USFWS 1995 
and 1997, entire) as essential for the conservation of the species. All 
areas designated as critical habitat are essential for the conservation 
and recovery of the marbled murrelet by maintaining and increasing 
suitable nesting habitat and limiting forest fragmentation, thereby 
providing for increases in nest success and productivity to attain 
long-term population viability of the species. Therefore, we have 
determined that all areas currently identified as critical habitat for 
the marbled murrelet, whether confirmed to be occupied at the time of 
listing or not, are essential for the conservation of the species and 
meet the definition of critical habitat under section 3(5)(A)(ii) of 
the Act. Recent population and suitable habitat research confirms that 
these areas continue to be essential because the marbled murrelet 
population has declined since listing (Miller et al. 2012, entire) and 
continues to decline in Washington (Lance and Pearson 2015, pp. 4-5), 
hence suitable nesting areas are of increased importance to provide 
recovery potential for the marbled murrelet. In addition, while habitat 
loss has slowed since adoption of the NWFP, suitable nesting habitat 
continues to be lost to timber harvest (Raphael et al. 2015 in prep, 
pp. 94-95).

VIII. Restated Correction

    The preamble to the 1996 final critical habitat rule (May 24, 1996; 
61 FR 26265) stated that, within the boundaries of designated critical 
habitat, only those areas that contain one or more PCEs are, by 
definition, critical habitat, and areas without any PCEs are excluded 
by definition. This statement was in error; we clarified this language 
in the revised critical habitat rule published in 2011 (October 5, 
2011; 76 FR 61599, p. 61604), and we reemphasize this correction here. 
By introducing some ambiguity in our delineation of critical habitat, 
this language was inconsistent with the requirement that each critical 
habitat unit be delineated by specific limits using reference points 
and lines (50 CFR 424.12(c)). The Service does its best not to include 
areas that obviously cannot attain PCEs, such as alpine areas, water 
bodies, serpentine meadows, lava flows, airports, buildings, parking 
lots, etc. (May 24, 1996; 61 FR 26256, p. 26269). However, the scale at 
which mapping is done for publication in the Code of Federal 
Regulations does not allow precise identification of these features, 
and, therefore, some may fall within the critical habitat boundaries. 
Hence, all lands within the mapped critical habitat boundaries for the 
marbled murrelet are critical habitat.

IX. Effects of Critical Habitat Designation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species.
    We published a final regulation with a new definition of 
destruction or adverse modification on February 11, 2016 (81 FR 7214), 
which became effective on March 14, 2016. Destruction or adverse 
modification means a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for the conservation of a 
listed species. Such alterations may include, but are not limited to, 
those that alter the physical or biological features essential to the 
conservation of a species or that preclude or significantly delay 
development of such features.
    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. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require 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 the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 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 and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of 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 sometimes may 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

[[Page 51361]]

subsequently listed species or designated critical habitat.
    We recognize that critical habitat designated 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 be needed for 
recovery of the species. Areas that are important to the conservation 
of the species, both inside and outside the critical habitat 
designation, will continue to be subject to: (1) Conservation actions 
implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.
    The 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. Activities that may destroy or 
adversely modify critical habitat are those that result in a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for the conservation of the marbled murrelet. Such alterations 
may include, but are not limited to, those that alter the physical or 
biological features essential to the conservation of the species or 
that preclude or significantly delay development of such features. As 
discussed above, the role of critical habitat is to support physical or 
biological features essential to the conservation of a listed species 
and provide for the conservation of the species.
    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 may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the marbled murrelet. A detailed explanation of the 
regulatory effects of critical habitat in terms of consultation under 
section 7 of the Act and application of the adverse modification 
standard is provided in the October 5, 2011, final rule revising 
critical habitat for the marbled murrelet (76 FR 61599).

X. Economic Considerations

    As required by section 4(b)(2) of the Act and its implementing 
regulations, we fully considered the economic impact that may result 
from specifying any particular area as critical habitat. If critical 
habitat has not been previously designated, the probable economic 
impact of a proposed critical habitat designation is analyzed by 
comparing scenarios both ``with critical habitat'' and ``without 
critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, and includes the existing 
regulatory and socio-economic burden imposed on landowners, managers, 
or other resource users potentially affected by the designation of 
critical habitat (e.g., under the Federal listing as well as other 
Federal, State, and local regulations). In this case the baseline 
represents the costs of all efforts attributable to the listing of the 
species under the Act (i.e., conservation of the species and its 
habitat incurred regardless of whether critical habitat is designated). 
The ``with critical habitat'' scenario describes the incremental 
impacts associated specifically with the designation of critical 
habitat for the species. These are the conservation efforts and 
associated impacts that would not be expected but for the designation 
of critical habitat for the species. In other words, the incremental 
costs are those attributable solely to the designation of critical 
habitat, above and beyond the baseline costs. These incremental costs 
represent the potential economic impacts we consider in association 
with a designation or revision of critical habitat, as required by the 
Act.
    Baseline protections as a result of the listed status of the 
marbled murrelet include sections 7, 9, and 10 of the Act, and any 
economic impacts resulting from these protections to the extent they 
are expected to occur absent the designation of critical habitat:
     Section 7 of the Act, even absent critical habitat 
designation, requires Federal agencies to consult with the Service to 
ensure that any action authorized, funded, or carried out will not 
likely jeopardize the continued existence of any endangered or 
threatened species. Consultations under the jeopardy standard result in 
administrative costs, as well as impacts of conservation efforts 
resulting from consideration of this standard.
     Section 9 defines the actions that are prohibited by the 
Act. In particular, it prohibits the ``take'' of endangered wildlife, 
where ``take'' means to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or to attempt to engage in any such conduct. 
The economic impacts associated with this section manifest themselves 
in sections 7 and 10.
     Under section 10(a)(1)(B) of the Act, an entity (e.g., a 
landowner or local government) may develop an HCP for a listed animal 
species in order to meet the conditions for issuance of an incidental 
take permit in connection with a land or water use activity or project. 
The requirements posed by the HCP may have economic impacts associated 
with the goal of ensuring that the effects of incidental take are 
adequately avoided or minimized. The development and implementation of 
HCPs is considered a baseline protection for the species and habitat 
unless the HCP is determined to be precipitated by the designation of 
critical habitat, or the designation influences stipulated conservation 
efforts under HCPs.
    In the present rulemaking, we are not starting from a ``without 
critical habitat'' baseline. In this particular case, critical habitat 
has been in place for the marbled murrelet since May 24, 1996 (61 FR 
26256), and was most recently revised on October 5, 2011 (76 FR 61599). 
Because the 2011 revision resulted only in the removal of some areas of 
critical habitat, all areas remaining in the current designation have 
been critical habitat for the marbled murrelet since 1996. This current 
critical habitat designation formed the baseline for our consideration 
of the potential economic impacts of the proposed rule.
    In the proposed rule, we described our evaluation and conclusion 
that all of the currently designated areas meet the statutory 
definition of critical habitat for the marbled murrelet. Specifically, 
we clarified that all areas are within the range of the marbled 
murrelet and,

[[Page 51362]]

therefore, occupied by the species at the time of listing, and contain 
the physical or biological features essential to the conservation of 
the species, which may require special management consideration or 
protection. Furthermore, although all areas are considered to have been 
occupied at the time of listing, all areas do not necessarily have 
specific data indicating known detections of nesting murrelets at the 
time of listing. Upon further evaluation, we determined that all 
critical habitat, regardless of whether we have information indicating 
definitive use by nesting murrelets at the time of listing, is 
essential for the conservation of the species. As a result of our 
evaluation, we did not propose any modification to the boundaries of 
critical habitat for the marbled murrelet, nor did we propose any 
changes to the definition of the PCEs (May 24, 1996; 61 FR 26256). We 
fully considered all substantive comments and relevant information 
received on our proposed determination of critical habitat for the 
marbled murrelet; our consideration of this information did not lead to 
any changes from our proposed rule in this final rule.
    We considered the probable incremental economic impacts of the 
proposed rule with regard to critical habitat for the marbled murrelet. 
As described in our proposed rule, critical habitat has already been in 
place for the marbled murrelet for 20 years; as we are not changing any 
of the critical habitat boundaries or PCEs, and as Federal action 
agencies consult on the effects to the PCEs rather than the species 
itself with regard to actions in critical habitat, we do not anticipate 
any additional costs as a result of the clarification of areas occupied 
at the time of listing. Our evaluation of the probable economic impacts 
of our proposed determination of critical habitat for the marbled 
murrelet was available for public review during the comment period on 
our proposed rule from August 25, 2015, through October 26, 2015 
(August 25, 2015; 80 FR 51506). Following the close of the comment 
period, we reviewed and evaluated all information submitted that may 
pertain to our consideration of the probable incremental economic 
impacts of this critical habitat rule. We fully considered public 
comment on our evaluation, as well as information supplied by the 
action agencies with whom we regularly consult with regard to marbled 
murrelet critical habitat (details below). Those action agencies 
confirmed our conclusion that our clarification of how the areas 
currently designated as critical habitat meet the statutory definition 
under the Act is unlikely to result in any additional costs, regardless 
of occupancy status.
    Our conclusion that this critical habitat rule will not result in 
incremental economic impacts is based upon the following evaluation. 
Critical habitat designation will not affect activities that do not 
have any Federal involvement; designation of critical habitat affects 
only activities conducted, funded, permitted, or authorized by Federal 
agencies. In areas where the marbled murrelet is present, Federal 
agencies already are required to consult with the Service under section 
7 of the Act on activities they fund, permit, or implement that may 
affect the species. In this particular case, because all areas that we 
have considered are already designated as critical habitat for the 
marbled murrelet, where a Federal nexus occurs, consultations to avoid 
the destruction or adverse modification of critical habitat have been 
incorporated into the existing consultation process. Federal agencies 
have been consulting under section 7 of the Act on critical habitat for 
the marbled murrelet for approximately 20 years. As our proposed rule 
did not include the addition of any new areas as critical habitat, any 
probable economic impacts resulting from the proposed rule would result 
solely from our clarification of how all of the areas currently 
designated meet the statutory definition of critical habitat. The 
incremental economic impacts of our rulemaking would, therefore, be 
equal to any additional costs incurred as the result of a difference 
between the outcome of consultations as they are currently conducted 
and consultations as they would be conducted if the proposed rule were 
to become final.
    Based upon our evaluation and as described in our proposed rule, we 
do not anticipate changes to the consultation process or effect 
determinations made for critical habitat as a result of our evaluation 
and conclusion that all areas meet the definition of critical habitat 
under the Act. In addition, we do not anticipate requiring additional 
or different project modifications than are currently requested when an 
action ``may affect'' critical habitat. Therefore, it is the Service's 
expectation that this final rule clarifying the 1996 critical habitat 
designation, as revised in 2011, which explains how all areas within 
the boundaries of the current designation meet the definition of 
critical habitat under the Act, will result in no additional 
(incremental) economic impacts.
    In order to confirm the accuracy of our assessment of the potential 
economic impacts of the proposed rule, we asked those Federal action 
agencies that manage lands that are critical habitat or with whom we 
have consulted over the past 20 years on marbled murrelet critical 
habitat to review our evaluation and characterization of the changes, 
if any, to consultation under section 7 that may be anticipated as a 
consequence of the proposed rule. We specifically asked each agency 
whether our proposed rule would be likely to result in any additional 
economic impacts on their agency (incremental impacts), above and 
beyond those already incurred as a result of the current critical 
habitat designation for the marbled murrelet (baseline impacts). Based 
on our consultation history with Federal agencies, it is our 
understanding that action agencies currently consult on effects to 
marbled murrelet critical habitat through an analysis of the effects to 
the PCEs. We asked the action agencies to confirm or correct this 
understanding, and to verify our characterization of how these 
consultations take place under the current designation, which we 
described as follows:
     If an action will take place within designated critical 
habitat, the action agency considers the action area to be critical 
habitat, irrelevant of the presence of PCEs. The action agency then 
determines whether there are PCEs within the action area. If the action 
agency determines there are no PCEs within the action area, the agency 
makes a ``no effect'' determination and the Service is not consulted.
     If the action agency determines there are PCEs within the 
action area, they analyze the action's potential effects on the PCEs, 
which may result in a ``no effect'' or ``may effect'' determination. If 
the action agency determines the action ``may affect'' the PCEs, they 
undergo section 7 consultation with the Service.
    Whether the critical habitat subunit or action area is considered 
to be ``occupied'' by the species is irrelevant to the effect 
determination made for critical habitat. Rather, the determination of 
``occupancy'' is relevant to the effect determination for the species 
and any minimization measures that may be implemented (such as project 
timing).
    In the proposed rule we clarified that we consider all areas to 
have been occupied by the species at the time of listing, and that all 
of these areas have the PCEs. Because occupancy of the critical habitat 
subunit or action area is

[[Page 51363]]

considered irrelevant to the effect determination made for critical 
habitat, the Service does not anticipate changes to the consultation 
process or effect determinations made for critical habitat as a result 
of this determination. In addition, the Service does not anticipate 
requiring additional or different project modifications than are 
currently requested when an action ``may affect'' critical habitat. 
Therefore, we conclude that this final rule clarifying the 1996 
critical habitat designation, as revised in 2011, which is limited to 
explaining how all areas within the boundaries of the current 
designation meet the definition of critical habitat under the Act, will 
not result in additional (incremental) costs to the Federal agencies.
    As noted above, we solicited review and comment on our draft 
summary of the anticipated economic impacts of the proposed rule from 
seven Federal agencies with whom we regularly consult on marbled 
murrelet critical habitat (the U.S. Forest Service (USFS), U.S. Bureau 
of Land Management (BLM), National Park Service (NPS), Bureau of Indian 
Affairs (BIA), U.S. Army Corps of Engineers, Federal Highway 
Administration, and Federal Energy Regulatory Commission). We received 
responses from four of these agencies: The USFS representing multiple 
national forests, the BLM representing multiple districts, the NPS 
representing Redwood National Park and State Parks partnership, and the 
BIA. All responses agreed with our evaluation of the potential 
incremental effects of the proposed rule, and confirmed that they did 
not anticipate any additional costs as a result of the clarification of 
areas occupied at the time of listing. Our initial letter of inquiry 
and all responses received from the action agencies are available for 
review in the Supplemental Materials folder at https://www.regulations.gov, Docket No. FWS-R1-ES-2015-0070.
    We additionally considered any potential economic impacts on non-
Federal entities as a result of the proposed rule. In our experience, 
any economic impacts to non-Federal parties are generally associated 
with the development of HCPs under section 10(a)(1)(B) of the Act. 
However, as described above, in most cases the incentive for the 
development of an HCP is the potential issuance of an incidental take 
permit in connection with an activity or project in an area where a 
listed animal species occurs. HCPs are seldom undertaken in response to 
a critical habitat designation, but in such a case the costs associated 
with the development of an HCP prompted by the designation of critical 
habitat would be considered an incremental impact of that designation. 
In this particular situation, because we did not propose any changes to 
the boundaries of critical habitat, we did not anticipate the 
initiation of any new HCPs in response to the proposed rule; therefore, 
we did not anticipate any costs to non-Federal parties associated with 
HCP development. We did not receive any information during the public 
comment period that suggested this conclusion was in error.
    Other potential costs to non-Federal entities as a result of 
critical habitat designation might include costs to third-party private 
applicants in association with Federal activities. In most cases, 
consultations under section 7 of the Act involve only the Service and 
other Federal agencies, such as the U.S. Army Corps of Engineers. 
Sometimes, however, consultations may include a third party involved in 
projects that involve a permitted entity, such as the recipient of a 
Clean Water Act section 404 permit. In such cases, these private 
parties may incur some costs, such as the cost of applying for the 
permit in question, or the time spent gathering and providing 
information for a permit. These costs and administrative effort on the 
part of third-party applicants, if attributable solely to critical 
habitat, would be incremental impacts of the designation. In this 
particular case, however, because we did not propose any boundary 
changes to the current critical habitat designation, we did not 
anticipate any change from the current baseline conditions in terms of 
potential costs to third parties; therefore, we expected any 
incremental impacts to non-Federal parties associated with the proposed 
rule to be minimal. Again, we did not receive any information during 
the public comment period that would suggest this conclusion is in 
error.
    Based on our evaluation, the information provided to us by the 
Federal action agencies within the critical habitat area under 
consideration, and the information received during the public comment 
period on our proposed rule, we conclude that this final rule will 
result in little if any additional economic impact above baseline 
costs.

XI. Determination

    We have examined all areas designated as critical habitat for the 
marbled murrelet in 1996 (May 24, 1996; 61 FR 26256), as revised in 
2011 (October 5, 2011; 76 FR 61599), and evaluated whether all areas 
meet the definition of critical habitat under section 3(5)(A) of the 
Act. Based upon our evaluation, we have determined that all 101 
subunits designated as critical habitat are within the geographical 
area occupied by the species at the time of listing, and each of these 
subunits provides the physical or biological features and PCEs 
essential to the conservation of the species, which may require special 
management considerations or protections. Therefore, we conclude that 
all areas designated as critical habitat for the marbled murrelet meet 
the definition of critical habitat under section 3(5)(A)(i) of the Act. 
Of the 101 subunits, 78 of those subunits had documented detections of 
nesting behavior at the time of listing. We have determined that we do 
not have sufficient data to definitively document nesting behavior 
within the other 23 subunits at the time of listing. However, even if 
these 23 subunits were considered unoccupied, the Secretary has 
determined that they are essential for the conservation of the species, 
as they contribute to the maintenance or increase of suitable nesting 
habitat required to achieve the conservation and recovery of the 
marbled murrelet; therefore, we conclude that they meet the definition 
of critical habitat under section 3(5)(A)(ii) of the Act.
    In addition, recognizing that the detection of nesting behaviors or 
the presence of essential physical or biological features or PCEs 
within a subunit may be evaluated on multiple scales, such that at some 
finer scales some subset of the subunit may be considered unoccupied or 
lacking in PCEs, we evaluated the designation in its entirety as if it 
were unoccupied under section 3(5)(A)(ii) of the Act, and found that 
all areas of critical habitat are essential for the conservation of the 
species. We have here clarified that we have evaluated all critical 
habitat for the marbled murrelet, and have concluded that in all cases 
the areas designated as critical habitat for the marbled murrelet meet 
the definition of critical habitat under section 3(5)(A) of the Act. In 
addition, as required by section 4(b)(2) of the Act, we have considered 
the potential economic impact of this clarification, and we have 
concluded that any potential economic effects resulting from this 
rulemaking are negligible.
    Therefore, we conclude that, under the Act, critical habitat as 
currently designated for the marbled murrelet in the Code of Federal 
Regulations remains valid.

XII. Summary of Comments and Responses

    We requested written comments from the public on the proposed 
determination of critical habitat for the

[[Page 51364]]

marbled murrelet in a proposed rule published on August 25, 2015 (80 FR 
51506). As described in that proposed rule, our purpose was to 
reconsider the final rule designating critical habitat for the marbled 
murrelet (May 24, 1996; 61 FR 26256, as revised on October 5, 2011; 76 
FR 61599) for the purpose of evaluating whether all areas currently 
designated meet the definition of critical habitat under the Act. To 
that end, we specifically sought comments concerning: (1) What areas 
within the currently designated critical habitat for the marbled 
murrelet were occupied at the time of listing and contain features 
essential to the conservation of the species; (2) special management 
considerations or protection that may be needed in critical habitat 
areas, including managing for the potential effects of climate change; 
(3) what areas within the currently designated critical habitat are 
essential for the conservation of the species and why; and (4) 
information on the extent to which the description of economic impacts 
is a reasonable estimate of the likely economic impacts of the proposed 
determination. During the comment period, which closed on October 26, 
2015, we received 16 comment letters from organizations or individuals 
directly addressing the proposed critical habitat designation.
    Eleven of these letters provided substantive comments (beyond a 
succinct expression of agreement or opposition) on the proposed rule. 
Five of the comment letters expressed support of our 1996 designation, 
one opposed the 1996 designation, and five did not express a particular 
opinion regarding the 1996 designation and whether it meets the 
statutory definition, but offered other suggestions or information 
regarding critical habitat for the marbled murrelet.
    Several comments we received were outside the scope of the proposed 
rule, which was limited to the specific purpose for which the court 
remanded this rule, which was to assess whether all of the designated 
areas meet the statutory definition of critical habitat. Examples of 
comments outside of the scope of the proposed rule included:
    (a) Requests that we designate additional critical habitat;
    (b) A request that we apply the Service's proposed policy for 
excluding lands included in Habitat Conservation Plans (See 79 FR 27052 
(May 12, 2014) at 27055);
    (c) Requests that we designate marine areas as critical habitat;
    (d) A request that surrounding encumbered lands be freed up as a 
more available revenue source; and
    (e) A request to complete a 5-year review.
    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.
    All substantive information provided during the comment period has 
either been incorporated directly into this final determination or 
addressed below. Comments received were grouped into general issues 
specifically relating to the proposed critical habitat determination, 
and are addressed in the following summary and incorporated into the 
final rule as appropriate.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from the State regarding the determination of 
critical habitat for the marbled murrelet are addressed below.
    (1) Comment: The Oregon Department of Forestry stated they have not 
experienced impacts, positive or negative, associated with the 
designation of critical habitat. Critical habitat has not been an 
obstacle to the effective implementation of their forest management 
plans.
    Our response: Thank you for the information.
    (2) Comment: The Oregon Department of Forestry and one private 
organization expressed the opinion that we relied heavily on technical 
information associated with the 1996 designation and largely or 
completely ignored newer scientific literature. In particular they 
pointed out that all the referenced nest site data is decades old.
    Our response: The sole purpose of our proposed rule was to evaluate 
whether all areas currently designated as critical habitat for the 
marbled murrelet meet the statutory definition of critical habitat; we 
did not propose to revise critical habitat as a whole. In doing so, we 
did not ignore or discount any available relevant literature, including 
publications made available after the 1996 designation of critical 
habitat. In fact, many of the publications the commenters indicate we 
ignored, such as McShane et al. 2004, are cited in the proposed rule 
(see, for example, citations on pp. 51509-51512 of 80 FR 51506; August 
25, 2015). If our review of the best available scientific data as 
reflected in the more recently published literature had indicated a 
change in our understanding of the essential habitat features for the 
marbled murrelet, we might have proposed further revision. However, we 
reviewed all available scientific data relevant to this question and 
found that it did not indicate that such a change was appropriate. 
Rather, the more recently published literature continues to support the 
physical or biological factors and primary constituent elements (PCEs) 
as described in the 1996 critical habitat final rule and is, therefore, 
consistent with both our proposed and final rules.
    The commenters also indicate that the nest and occupancy data we 
relied upon were outdated. We disagree. On page 51516 of the proposed 
rule (80 FR 51506; August 25, 2015), we denote the years of survey data 
that we relied upon, which included all available nests, occupied 
behaviors, and presence behaviors within the analysis area. In 
Washington, the information included data collected through 2013. In 
Oregon, some survey data was as recent as 2014. In California, most of 
the available data was collected through 2006, with one data point from 
2014. These data present the most recent and best data available for us 
to use in our reconsideration.
    (3) Comment: The Oregon Department of Forestry commented that the 
boundaries of critical habitat follow ownerships rather than habitat.
    Our response: Our implementing regulations at 50 CFR 424.12(c), in 
effect at the time of our designation, specify that ``Each critical 
habitat will be defined by specific limits using reference points and 
lines as found on standard topographic maps of the area. . . . 
Ephemeral reference points (e.g., trees, sand bars) shall not be used 
in defining critical habitat.'' Although by definition the foundation 
of our critical habitat designation is based on habitat characteristics 
(the presence of essential physical or biological features, or areas 
otherwise determined to be essential for the conservation of the 
species), to be useful those specific areas that fall within the 
designation must be identifiable ``on the ground.'' Characteristics 
such as the location of forest edges, for example, which might serve as 
a habitat-based boundary for marbled murrelets, are expected to vary 
over space and time and thus are not useful in this regard. For this 
reason, we utilized ownership and administrative boundaries, which are 
relatively more stable, to define the boundaries of our critical 
habitat units, after reliance on the habitat characteristics to define 
critical habitat for the marbled murrelet located within those 
administrative boundaries.

[[Page 51365]]

    (4) Comment: The Oregon Department of Forestry recommended that 
critical habitat should be focused on older, high-quality habitat 
rather than younger stands.
    Our response: We agree with the basic principle of this 
recommendation, and in fact the critical habitat does focus on older, 
high-quality habitat, which is likely to equate to forested areas that 
contain trees with suitable nesting structures (PCE 1). However, 
limiting the critical habitat designation to areas that only contain 
PCE 1 would not be sufficient to achieve the conservation of the 
species because marbled murrelets need large contiguous blocks of 
forested areas (Recovery Plan for the Marbled Murrelet, USFWS 1997). It 
is not necessary that the entirety of these large, contiguous blocks of 
forest is represented by trees with characteristics associated with 
late-successional old growth; a large block of forested area may be 
constituted of trees with suitable nesting structures surrounded by 
areas of younger forest. Marbled murrelet critical habitat, therefore, 
comprises two PCEs, which serve separate, but intertwined, purposes. 
Forested areas within 0.5 mile (0.8 kilometer) of individual trees with 
potential nesting platforms with a canopy height of at least one-half 
the site-potential tree height (PCE 2) provide the larger forested 
areas that are necessary to minimize edge effects and reduce the 
impacts of nest predators to increase the probability of nest success, 
in addition to providing forest cohesion around suitable nesting trees 
(PCE 1), which has been associated with murrelet use and to provide for 
the development of suitable nesting trees. Because these younger stands 
may provide this essential feature, critical habitat for the marbled 
murrelet is not strictly limited to only older stands of forest.
    (5) Comment: The Washington Department of Natural Resources (WDNR) 
requested that the critical habitat unit descriptions, tables, and maps 
be updated to remove the lands excluded because of inclusion in the 
Department's Habitat Conservation Plan (HCP).
    Our response: The 1996 critical habitat designation for the marbled 
murrelet stipulates by text that ``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.'' However, the WDNR HCP for the marbled murrelet was not completed 
until 1997, after critical habitat designation; therefore, all WDNR 
lands were mapped in the final critical habitat. Once the WDNR obtained 
a legally operative incidental take permit for marbled murrelets issued 
under section 10(a) of the Act in 1997, the HCP lands designated as 
critical habitat were excluded by the text referenced above. As long as 
WDNR has a legally operative incidental take permit for marbled 
murrelets, their lands remain excluded by text from critical habitat. 
However, should their permit be revoked, terminated, or expire, WDNR 
lands would revert back to critical habitat. WDNR lands, therefore, 
continue to remain mapped and accounted for in the total designation 
acreage.
    Further, as noted above, the purpose of this proposed action was to 
consider whether our 1996 designation meets the statutory definition of 
critical habitat; we did not propose revision of critical habitat as a 
whole. Therefore, we did not propose to reconsider or reevaluate any of 
the exclusions contained in the 1996 final designation for consistency 
with our current exclusion policies.

Public Comments

    (6) Comment: One private organization stated that our proposed rule 
did not contain a finding that areas not occupied at the time of the 
listing are essential for the conservation of the species. At the same 
time, this organization also contends that our determination that all 
101 subunits would qualify for designation under 16 U.S.C. 1532 
(5)(A)(ii) as ``essential to the conservation of the species'' has no 
legal bearing on a designation under 16 U.S.C. 1532 (5)(A)(i) for the 
geographical area occupied at the time of listing. The comment letter 
suggests that the subsection (ii) standard applies only to areas that 
are outside the geographical area occupied at the time of listing, and 
that the ``Service has determined that all designated critical habitat 
is within the geographical area occupied at the time of listing. For 
such areas, they suggest critical habitat can only be designated under 
subsection (i), and only if the physical or biological features (PCEs) 
``are found'' on those areas.''
    Our response: We refer the commenter to section VII on pages 51517-
51518 of the proposed rule (80 FR 51506; August 25, 2015), which 
provides our finding that all currently designated critical habitat is 
essential to the conservation of the marbled murrelet. As stated there, 
we first determined that all areas designated as critical habitat are 
within the geographical area occupied by the species at the time of 
listing and contain the physical or biological features and PCEs 
essential to the conservation of the species, which may require special 
management considerations or protection. However, we acknowledged that 
the physical or biological features and PCEs may not be uniformly 
distributed throughout the subunits, and, therefore, we additionally 
conducted an evaluation of all subunits under the standards of section 
3(5)(A)(ii) of the Act. While this evaluation was not technically 
necessary, we determined it to be a conscientious application of all 
methods of designating critical habitat, regardless of occupancy, 
differing interpretations of occupancy, or differing scales of 
analysis. We expressly stated in our determination that all areas 
currently identified as critical habitat for the marbled murrelet, 
whether confirmed to be occupied at the time of listing or not, are 
essential for the conservation of the species and meet the definition 
of critical habitat under section 3(5)(A)(ii) of the Act (see section 
XI, Determination, on page 51520 of the proposed rule, 80 FR 51506; 
August 25, 2015). This approach is consistent with the ruling in Home 
Builders Ass'n of Northern California v. U.S. Fish and Wildlife 
Service, 616 F.3d 983 (9th Cir.), cert. denied 131 S.Ct. 1475 (2011), 
in which the court upheld a critical habitat rule in which the Service 
had determined that the areas designated, whether occupied or not, met 
the more demanding standard of being essential for conservation. See 
also our response to Comment (7).
    (7) Comment: The same private organization stated that the Service 
cannot designate areas within the geographical area occupied at the 
time of listing that lack any of the physical or biological features 
simply by combining those areas in a large ``subunit'' consisting of 
thousands of acres including some other areas that do contain the 
features. If the presence of physical and biological features anywhere 
within a large critical habitat unit was sufficient to find the 
presence of physical and biological features everywhere within the 
unit, nothing would prevent the administrative creation of a single 
multimillion-acre critical habitat ``unit'' and finding every acre to 
contain physical and biological features because a single small area 
contains such features. This interpretation would render the statutory 
terms meaningless. In particular, the commenting organization noted 
that the designation included lands delineated as Late Successional 
Reserves under the Northwest Forest Plan, which they contend does not 
meet the statutory standard because the physical or biological features 
and PCEs

[[Page 51366]]

may not be uniformly distributed throughout a subunit.
    Our response: We agree with the commenter that an interpretation of 
the statute that would lead to the creation of a single multimillion-
acre critical habitat unit and declaring every acre within that unit to 
contain physical and biological features on the basis of a small subset 
of the unit containing such features would not be reasonable. However, 
we disagree that such an interpretation reflects our designation of 
critical habitat for the marbled murrelet. Marbled murrelets require 
forested habitats for nesting, particularly trees with nesting 
platforms (which are typically found in forests with late seral 
characteristics) embedded within larger areas of contiguous forest that 
may serve as a ``buffer'' area to insulate nesting murrelets from edge 
effects, such as invasion by corvid predators (crows or ravens) or 
negative microclimatic conditions (also noting that the beneficial 
effects of these surrounding areas may be provided by younger forest 
stands). In addition, as noted in our proposed rule, trees with 
suitable nesting platforms may also be found in areas of younger forest 
containing remnant large trees.
    Forests are dynamic systems, and cannot be expected to remain 
static on the landscape; the progression of forest habitats through a 
series of seral stages is a fundamental principle of forest ecology. As 
a result of both natural disturbance and anthropogenic activities, 
forests occur in a mosaic of age-structured conditions. It is, 
therefore, to be expected that the designation of critical habitat for 
a wide-ranging forest species requiring nest trees with mature or old-
growth characteristics will additionally include surrounding forests in 
a mosaic of both old and younger forests; this simply reflects how 
forest patches of varying ages and structural condition are distributed 
across the landscape.
    Our implementing regulations at 50 CFR 424.12(b)(5)(d) state: 
``When several habitats, each satisfying the requirements for 
designation as critical habitat, are located in proximity to one 
another, an inclusive area may be designated as critical habitat.'' In 
this case, our designation of critical habitat for the marbled murrelet 
is focused primarily on areas of forest with late-successional 
characteristics that provide suitable nesting habitat (PCE 1), 
surrounded by areas of potentially younger forest (PCE 2). Because 
marbled murrelets require large blocks of contiguous forest habitat for 
successful nesting, we have noted that special management 
considerations may be required to provide for the development of 
suitable nesting habitat for those areas currently in early 
successional stages.
    Taking all of these factors into consideration, we considered the 
best available scientific information and concluded that the 101 
subunits of critical habitat designated here for the marbled murrelet 
contain the essential physical or biological features and PCEs at a 
scale appropriate for the conservation of the species and 
representative of the natural distribution of these features on the 
landscape. It is not biologically reasonable to expect the PCEs to be 
found on every acre of each subunit of a critical habitat designation 
for a wide-ranging species that requires large blocks of contiguous 
forest habitat for successful nesting. Furthermore, because of the 
fundamental dynamic nature of successional forests, we do not expect 
such features to be distributed uniformly across critical habitat. We 
dispute the commenter's argument that areas within the critical habitat 
designation do not meet the statutory standard because the physical or 
biological features and PCEs are not uniformly distributed throughout 
the subunits. There is no statutory or regulatory requirement that the 
physical or biological features or PCEs be ``uniformly distributed'' 
throughout critical habitat. Section 3(5)(A)(i) of the Act requires in 
plain language only that the physical or biological features essential 
to the conservation of the species ``are found'' on those specific 
areas identified as critical habitat within the geographical area 
occupied by the species at the time it is listed. Our designation of 
critical habitat for the marbled murrelet clearly meets the statutory 
standard. We note that the U.S. Court of Appeals for the Ninth Circuit 
recently affirmed a similar interpretation of the Act in Alaska Oil and 
Gas Association v. Jewell, 2016 U.S. App. LEXIS 3624 (9th Cir., Feb. 
29, 2016), in which the court upheld the Service's designation of 
critical habitat for the polar bear. The court held that, in its 
designation of denning habitat, the Service was not required to 
identify specifically where all elements of the denning habitat PCE 
were located within each 5-mile increment of the designated area, and 
the Service adequately explained why it adopted a method designed to 
capture a ``robust'' estimation of inland den use.
    Finally, we recognize that there may be different approaches to 
defining the ``geographical area occupied by the species at the time it 
is listed,'' depending largely on the scale at which the area occupied 
is considered. Here we have defined that area on a relatively large 
scale, essentially equivalent to the range of the species, such that 
all critical habitat is considered occupied by the species. We have 
further determined, as described in this document, that the physical or 
biological features essential to the conservation of the species, and 
which may require special management considerations or protection, are 
found in each of the 101 subunits within the geographical area occupied 
by the species at the time it was listed, as identified in this 
designation of critical habitat. All critical habitat for the marbled 
murrelet therefore meets the definition of critical habitat under 
section (3)(5)(A)(i) of the Act.
    This commenter asserted that the proposal includes ``millions of 
acres that were not occupied at the time of listing.'' In the proposed 
rule, we explained why this assertion is incorrect, in light of our 
interpretation of ``occupied'' as being equivalent to the range of the 
species. But, even if some areas of the critical habitat designation 
were considered unoccupied at the time of listing, we have determined 
that all critical habitat for the marbled murrelet, as currently 
designated, is essential for the conservation of the species (see 
section VII of the proposed rule). Hence, the designated areas meet the 
definition of critical habitat set forth in section 3(5)(A)(ii) of the 
Act. That alternative definition does not require that PCEs be present.
    In this case, regardless of the scale at which the geographical 
area occupied by the species at the time it was listed is considered, 
we have determined that all areas currently designated as critical 
habitat for the marbled murrelet meet the definition of critical 
habitat whether evaluated under the standards of subsection (i) or (ii) 
of section 3(5)(A) of the Act. This approach is consistent with the 
ruling in Home Builders Ass'n of Northern California v. U.S. Fish and 
Wildlife Service, 616 F.3d 983, 990 (9th Cir.), cert. denied 131 S.Ct. 
1475 (2011), in which the court held that, where the Service had 
determined in a critical habitat rule that all areas met the more 
demanding standard under section 3(5)(A)(ii) for unoccupied areas, 
there was no need to classify particular areas as occupied or 
unoccupied, and any possible overlap with occupied areas ``poses no 
problem.'' The court observed that ``Courts routinely apply similar 
reasoning in cases where a standard is unclear yet the result is the 
same under even the highest standard.'' Id. The court also held that 
its prior ruling in Gifford Pinchot Task Force v. U.S. Fish and 
Wildlife Service, 378 F.3d 1059 (9th

[[Page 51367]]

Cir. 2004), ``requires FWS to be more generous in defining area as part 
of a critical habitat designation.'' Id. at 989 (emphasis in original).
    (8) Comment: The same private organization stated that an area can 
only be designated as critical habitat under section 3(5)(A)(i) of the 
Act if it meets two separate requirements with two different temporal 
bounds: (1) The area must be within the geographic area occupied by the 
species at the time it is listed, and (2) the area must currently 
contain (``on which are found'') physical or biological features that 
are ``essential to the conservation of the species'' [emphasis added by 
commenter].
    Our response: In our designation of critical habitat in 1996, as 
revised in 2011, we determined that the physical or biological features 
essential to the conservation of the marbled murrelet were found on all 
areas occupied by the species at the time of listing. In the analysis 
presented in this document, we have reevaluated all designated critical 
habitat for the marbled murrelet, and have additionally determined that 
the physical or biological features essential to the conservation of 
the species are currently found in all critical habitat subunits as 
well, whether considered occupied at the time of listing or not. 
Therefore, whether considered at the time of listing, at designation, 
or at present, we conclude that all critical habitat for the marbled 
murrelet meets the definition of critical habitat under section 
3(5)(A)(i) of the Act. Furthermore, we note that, since we have 
additionally evaluated all critical habitat as if it were unoccupied at 
the time of listing and determined that all designated areas meet the 
``essential for conservation'' standard of section 3(5)(A)(ii), the 
presence of the essential physical or biological features or PCEs is 
not determinative.
    (9) Comment: The same private organization stated that designation 
of non-habitat younger forest stands as critical habitat has a 
substantial economic impact, because, absent such designation, 
consultation under the jeopardy standard would not be required for 
actions limited to non-habitat younger forest stands, since those 
actions would be ``no effect'' on the marbled murrelet. By requiring 
consultation on actions limited to non-habitat younger forest stands 
that would not otherwise occur, there is a substantial risk that some 
of those actions would run afoul of the adverse modification standard, 
and impose a substantial administrative cost on the consulting 
agencies.
    Our response: Section 4(b)(2) of the Act requires that we consider 
the potential economic impacts of a critical habitat designation. We 
consider the economic impacts of critical habitat to be those impacts 
that would not occur but for the designation of critical habitat; that 
is, those costs that are attributable solely to the proposed critical 
habitat, above and beyond the ``baseline'' costs already incurred for 
the species. As fully described in our proposed rule (pp. 51518-51519, 
80 FR 51506; August 24, 2015), in this case the baseline for our 
analysis is the critical habitat that has been in place for the marbled 
murrelet since 1996, as revised in 2011. Our proposed rule focused 
solely on evaluating this existing critical habitat for the purpose of 
determining whether all areas meet the statutory definition under the 
Act; we did not propose any changes to the critical habitat designation 
already in place beyond the clarification of areas considered occupied 
or unoccupied at the time of listing, and a detailed description of how 
those areas meet the statutory definition of critical habitat. In 
considering the potential economic impacts of our proposed rule, we, 
therefore, contemplated a possible change in occupancy status of some 
areas of critical habitat as a result of our assessment. That is, we 
evaluated whether there would be any additional costs incurred as a 
result of our proposed rule, should we determine that some areas of 
critical habitat currently considered to be occupied by the marbled 
murrelet would change to ``unoccupied'' or vice versa.
    Whether a subunit or action area is considered ``occupied'' by the 
species is irrelevant to the effect determination for critical habitat 
analysis, because the analysis is based on impacts to the PCEs, not 
impacts to the species. For this reason we did not anticipate any 
incremental economic impacts from our proposed rule. Federal agencies 
have been consulting under section 7 of the Act on impacts to PCE 1 and 
PCE 2 for marbled murrelet critical habitat since 1996. As described in 
detail in our proposed rule (p. 51520, 80 FR 51506; August 25, 2015), 
we contacted all Federal agencies with whom we have consulted on 
marbled murrelet critical habitat over the past 20 years to confirm our 
understanding that they consult on effects to critical habitat through 
an analysis of the effects to PCEs. Furthermore, we specifically 
inquired whether our proposed rule would be likely to result in any 
additional economic impacts on their agencies, should any areas change 
in occupancy status. All of the agencies that responded confirmed that 
they did not anticipate any additional costs as a result of the 
clarification of critical habitat subunits occupied at the time of 
listing.
    (10) Comment: The same private organization stated that the Service 
incorrectly determined that critical habitat designation will not 
affect activities that do not have Federal agency involvement because, 
in Washington and California, the designation triggers legal 
obligations under State laws. Therefore, the Service should account for 
additional costs sustained by private landowners and revise the 
determination that designating critical habitat will result in no 
additional (incremental) economic impacts.
    Our response: As required by section 4(b)(2) of the Act, we 
considered the potential economic impacts that could result as a 
consequence of our proposed rule. As described on pages 51518-51520 of 
the proposed rule (80 FR 51506; August 25, 2015), the baseline for this 
analysis is the critical habitat designation in place today. The 
proposed rulemaking was focused solely on evaluating the current 
critical habitat designation--those areas designated in 1996, as 
revised in 2011--for the purposes of determining whether all of those 
areas meet the statutory definition of critical habitat.
    We are not proposing any changes to the critical habitat 
designation that is already in place beyond this clarification of areas 
considered occupied or unoccupied at the time of listing, and a 
detailed description of how those areas meet the statutory definition 
of critical habitat. We evaluated whether there would be any 
incremental costs incurred if there was a change in status of a 
critical habitat subunit from unoccupied to occupied (see our response 
to Comment 9, above). Incremental costs are those costs that are solely 
attributable to the proposed critical habitat rulemaking, over and 
above costs incurred for the conservation of the species absent the 
proposed critical habitat action. In this case, because there is no 
change in the geographic areas designated as critical habitat, the 
current designation would not trigger any additional obligations under 
State laws that had not already been triggered by the initial 1996 
designation; therefore, there would be no indirect incremental impacts 
of this rulemaking in relation to State laws as suggested by the 
commenter. In addition, for the most part, private lands in Washington 
and California that were included in the final 1996 designation

[[Page 51368]]

were known to be used by marbled murrelets; therefore, any legal 
obligations of the landowners would be primarily associated with the 
presence of the listed species, and would not be attributable solely to 
the designation of critical habitat (in other words, those obligations 
would have been realized regardless of critical habitat designation).
    Under the Regulatory Flexibility Act, Federal agencies (including 
the Service) are required to evaluate the potential incremental impacts 
of a rulemaking only on directly regulated entities. The regulatory 
mechanism through which critical habitat protections are realized is 
section 7 of the Act, which requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried out by the Agency is not likely to adversely modify critical 
habitat. Therefore, only Federal action agencies are directly subject 
to the specific regulatory requirement imposed by critical habitat 
designation (avoiding destruction or adverse modification of critical 
habitat). Under these circumstances, it is the Service's position that 
only Federal action agencies will be directly regulated by this 
designation.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are required to evaluate the potential incremental impacts of 
rulemaking only on those entities directly regulated by the rulemaking 
itself and are not required to evaluate the potential impacts to 
indirectly regulated entities. The regulatory mechanism through which 
critical habitat protections are realized is section 7 of the Act, 
which requires Federal agencies, in consultation with the Service, to 
ensure that any action authorized, funded, or carried by the Agency is 
not likely to destroy or adversely modify critical habitat. Therefore, 
under section 7 only Federal action agencies are directly subject to 
the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies will be directly 
regulated by this designation. There is no requirement under RFA to 
evaluate the potential impacts to entities not directly regulated. 
Moreover, Federal agencies are not small entities. Consequently, 
because no small entities are directly regulated by this rulemaking, 
the Service certifies that, if promulgated, the final critical habitat 
designation will not have a significant economic impact on a 
substantial number of small entities.
    During the development of this final rule we reviewed and evaluated 
all information submitted during the comment period that may pertain to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Based on this information, we affirm our 
certification that this final critical habitat designation will not 
have a significant economic impact on a substantial number of small 
entities, and a regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration. Our consideration of potential economic 
impacts finds that none of these criteria are relevant to this 
analysis, thus, energy-related impacts associated with marbled murrelet 
conservation activities within critical habitat are not expected. This 
final rule only clarifies how the designated critical habitat meets the 
definition of critical habitat under the Act. As such, the designation 
of critical habitat is not expected to significantly affect energy 
supplies, distribution, or use. Therefore, this action is not a

[[Page 51369]]

significant energy action, and no Statement of Energy Effects is 
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) 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 tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The 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 onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because this final rule only clarifies how the 
designated critical habitat meets the definition of critical habitat 
under the Act. The rule does not change the boundaries of the current 
critical habitat; therefore, landownership within critical habitat does 
not change, and a Small Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we analyzed the potential takings implications of the 
proposed determination of critical habitat for the marbled murrelet. 
This final rule clarifies whether and how the designated critical 
habitat meets the definition of critical habitat under the Act; there 
are no changes to the boundaries of the current critical habitat, so 
landownership within critical habitat does not change. Thus, we 
conclude that this final rule does not pose additional takings 
implications for lands within or affected by the original 1996 
designation. Critical habitat designation does not affect landowner 
actions that do not require Federal funding or permits, nor does it 
preclude development of habitat conservation programs or issuance of 
incidental take permits to permit actions that do require Federal 
funding or permits to go forward. Therefore, based on the best 
available information, as described above, we confirm the conclusions 
we reached in 1996 that the final determination of critical habitat for 
the marbled murrelet does not pose significant takings implications.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. From a Federalism perspective, the designation of critical 
habitat directly affects only the responsibilities of Federal agencies. 
The Act imposes no other duties with respect to critical habitat, 
either for States and local governments, or for anyone else. As a 
result, the rule does not have substantial direct effects either on the 
States, or on the relationship between the national government and the 
States, or on the distribution of powers and responsibilities among the 
various levels of government. The designation may have some benefit to 
these governments because the areas that contain the features essential 
to the conservation of the species are more clearly defined, and the 
physical and biological features of the habitat necessary to the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist these local governments in 
long-range planning (because these local governments no longer have to 
wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have reconsidered designated 
critical habitat for the marbled murrelet for the purpose of assessing 
whether all of the areas meet the statutory definition of critical 
habitat in accordance with the provisions of the Act. To assist the 
public in understanding the habitat needs of the species, the final 
rule identifies the elements of physical or biological features 
essential to the conservation of the marbled murrelet.

Paperwork 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

[[Page 51370]]

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 (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    There are no tribal lands designated as critical habitat for the 
marbled murrelet.

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at https://www.regulations.gov, at Docket No. FWS-R1-ES-
2015-0070. In addition, a complete list of all references cited herein, 
as well as others, is available upon request from the Washington Fish 
and Wildlife Office (see ADDRESSES).

Authors

    The primary authors of this document are the staff members of the 
Washington Fish and Wildlife Office, U.S. Fish and Wildlife Service 
(see ADDRESSES).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: July 5, 2016.
Karen Hyun,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-18376 Filed 8-3-16; 8:45 am]
 BILLING CODE 4333-15-P