Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Coastal Distinct Population Segment of the Pacific Marten, 58831-58858 [2021-22994]

Download as PDF Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R8–ES–2020–0151; FF09E21000 FXES1111090FEDR 223] RIN 1018–BE33 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Coastal Distinct Population Segment of the Pacific Marten Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), propose critical habitat for the coastal distinct population segment of Pacific marten (coastal marten) (Martes caurina), a mammal species from coastal California and Oregon, under the Endangered Species Act of 1973, as amended (Act). In total, approximately 1,413,305 acres (571,965 hectares) in northwestern California and southwestern Oregon fall within the boundaries of the proposed critical habitat designation. If we finalize this rule as proposed, it would extend the Act’s protections to this entity’s critical habitat. DATES: We will accept comments received or postmarked on or before December 27, 2021. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by December 9, 2021. ADDRESSES: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: https:// www.regulations.gov. In the Search box, enter the docket number or RIN for this rulemaking (presented above in the document headings). For best results, do not copy and paste either number; instead, type the docket number or RIN into the Search box using hyphens. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on ‘‘Comment.’’ (2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS–R8–ES–2020–0151; U.S. Fish and jspears on DSK121TN23PROD with PROPOSALS1 SUMMARY: VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041– 3803. We request that you send comments only by the methods described above. We will post all comments on https:// www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information). Availability of supporting materials: The coordinates from which the critical habitat maps are generated will be included in the decisional record materials for this rulemaking and are available at https://www.regulations.gov under Docket No. FWS–R8–ES–2020– 0151, and at the Arcata Ecological Services Field Office at https:// www.fws.gov/arcata (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for this critical habitat designation will also be available at the Service website and field office set out above, and may also be included in the preamble of this rule at https:// www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Jenny Ericson, Acting Field Supervisor, U.S. Fish and Wildlife Service, Arcata Ecological Services Field Office, 1655 Heindon Road, Arcata, California 95521, or by telephone 707–822–7201. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: Executive Summary Scope of this rule. The information presented in this proposed rule pertains only to the coastal distinct population segment (DPS) of Pacific marten (coastal marten). Any reference to the ‘‘species’’ within this document only applies to the DPS and not to the Pacific marten as a whole unless specifically expressed. A complete description of the DPS and area associated with the DPS is contained in the 12-month finding and the final listing rule for the coastal marten published in the Federal Register (80 FR 18742, April 7, 2015, and 85 FR 63806, October 8, 2020). Why we need to publish a rule. Under the Act, to the maximum extent prudent and determinable, we must designate critical habitat for any species that we determine to be an endangered or threatened species. Designations and revisions of critical habitat can only be completed by issuing a rule. On October 8, 2020, we finalized listing the coastal marten as a threatened species in the Federal Register (85 FR 63806). PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 58831 What this document does. This is a proposed rule to designate critical habitat for the coastal marten in 5 units in the States of Oregon and California totaling approximately 1,413,305 acres (ac) (571,965 hectares (ha)). In this proposed designation, we have identified a total of approximately 76,544 ac (30,975 ha) of private land and 26,126 ac (10,573 ha) of Tribal land that we are considering for exclusion from the final designation (see Consideration of Impacts Under Section 4(b)(2) of the Act). The basis for our action. Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat. Draft economic analysis. Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat, and make revisions thereto, on the basis of the best scientific data available and after taking into consideration the economic impact. In order to consider the economic impacts of critical habitat for the coastal marten, we drafted information pertaining to the potential incremental economic impacts for this proposed critical habitat designation. The information we used in determining the economic impacts of the proposed critical habitat is summarized in this proposed rule (see Consideration of Economic Impacts) and is available at https://www.regulations.gov at Docket No. FWS–R8–ES–2020–0151 and at the Arcata Fish and Wildlife Office at https://www.fws.gov/arcata (see FOR FURTHER INFORMATION CONTACT). We are soliciting public comments on the economic information provided and any other potential economic impact of the proposed designation. We will continue to reevaluate the potential economic E:\FR\FM\25OCP1.SGM 25OCP1 58832 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules jspears on DSK121TN23PROD with PROPOSALS1 impacts between this proposal and our final designation. Peer review. In accordance with our peer review policy published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought the expert opinions of 8 appropriate and independent knowledgeable individuals on our Species Status Assessment (SSA) for the coastal marten (Service 2019a, entire). We received responses from two peer reviewers and two technical reviewers relating to the habitat and habitat needs of coastal marten, which informed the development of this proposed designation. We reviewed the comments we received for substantive issues and new information regarding habitat needs for the coastal marten. The specialists generally concurred with our description of habitat needs for the coastal marten and provided additional information, clarifications, and suggestions to improve the description. We used the SSA and specialists’ comments on the SSA to inform our description and selection of areas we are proposing as critical habitat for the coastal marten. The peer and technical reviewers’ comments are available at https://www.regulations.gov at Docket No. FWS–R8–ES–2018–0076, which was the docket for the listing rule (85 FR 63806, October 8, 2020). The purpose of peer review is to ensure that our critical habitat designations are based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in the biology, habitat, and threats to the species. We will solicit additional peer review of this proposed rule and respond to any peer review comments on the proposed designation in the final rule as appropriate. Information Requested We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning: (1) The coastal marten’s biology and range; habitat requirements for feeding, breeding, and sheltering; and the locations of any additional populations. (2) Specific information on: VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 (a) The amount and distribution of coastal marten habitat; (b) What areas that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the coastal marten should be included in the designation and why; (c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; (d) What areas not occupied at the time of listing are essential for the conservation of the species. We particularly seek comments: (i) Regarding whether occupied areas are adequate for the conservation of the species; and (ii) Providing specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species. (e) Land ownership information, including land conservation status or management status. We particularly seek information on Tribal lands. Our spatial data information did not show any other Tribal lands within proposed critical habitat units beyond the ownership acreages listed below. (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat. (4) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas. (5) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts. (6) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. In particular, provide information for areas with management plans or other mechanisms in place that identify measures to protect and conserve the coastal marten or its habitat, such as the areas managed by Green Diamond Resource Company and the Yurok Tribe. (7) If you request exclusion from the designation of critical habitat of any areas under section 4(b)(2) of the Act, the Secretary will consider credible PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area, as provided in 50 CFR 17.90(c)(2)(i). (8) As provided in our regulations, we are to identify in a proposed designation of critical habitat those areas that we are considering for exclusion. In this proposed rule under the section entitled Exclusions, we have indicated that we are considering areas managed by the Green Diamond Resource Company and by the Yurok Tribe for possible exclusion and explain why. Please provide information regarding Green Diamond Resource Company and the Yurok Tribe lands considered for exclusion. (9) Information on the projected and reasonably likely impacts of climate change on the coastal marten’s habitat. (10) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments. (11) Information relating to species distribution or habitat modeling which is currently underway. Please include sufficient documentation with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you present. Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide substantial information necessary to support our determination, as section 4(b)(2) of the Act directs that critical habitat designations must be made ‘‘on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact.’’ You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES. If you submit information via https:// www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. E:\FR\FM\25OCP1.SGM 25OCP1 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules We will post all hardcopy submissions on https://www.regulations.gov. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov (see FOR FURTHER INFORMATION CONTACT). Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), our final critical habitat designation may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, and may exclude some areas if we find the benefits of exclusion outweigh the benefits of inclusion. jspears on DSK121TN23PROD with PROPOSALS1 Public Hearing Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES. Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service’s website, in addition to the Federal Register. The use of these virtual public hearings is consistent with our regulation at 50 CFR 424.16(c)(3). Previous Federal Actions On October 9, 2018, we proposed the coastal marten (83 FR 50574) as a threatened species under the Act and published our proposed rule in the Federal Register. On October 8, 2020, we published our final determination in the Federal Register (85 FR 63806), and added the coastal marten as threatened to the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h). All other previous Federal actions are described in the proposed rule to list the coastal marten as a threatened species under the Act (83 FR 50574, October 9, 2018). Please see that document for actions leading to this proposed designation of critical habitat. In the final listing rule published in the Federal Register on October 8, 2020 (85 FR 63806), we erroneously listed the range of the coastal marten in Oregon as ‘‘OR (south-western)’’ in the List at 50 CFR 17.11(h). We are now proposing to VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 correct the actual range of the DPS, which includes the entire coastal region of Oregon, and the change would appear in the List of Endangered and Threatened Wildlife as ‘‘OR (western)’’ (see Proposed Regulation Promulgation). Background Supporting Documents A species status assessment team prepared a SSA report for the coastal marten (Service 2019a, entire). The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species, as well as habitat needs for the species, which informed this critical habitat proposal. Information regarding peer review of the SSA is in our October 8, 2020, final listing determination (85 FR 63806). We also conducted an economic analysis on the incremental impacts of the proposed critical habitat designation (see Service 2019b, entire; IEc 2020, entire). Although published too late to be included in our final listing determination (85 FR 63806, October 8, 2020), we are aware of research indicating that martens in coastal Oregon are of the Humboldt subspecies (M. c. humboldtensis), as are the martens in coastal northern California, and not the caurina subspecies (M. c. caurina), as previously classified (Schwartz et al. 2020, p. 179). While this research may result in a name change to the subspecific taxon of martens in coastal Oregon, it does not change our listable entity or DPS analysis. In essence, our coastal DPS of the Pacific marten remains valid, but in its entirety is now synonymous with the Humboldt marten subspecies. The change in nomenclature also does not affect our analysis of the status of and threats to the coastal marten, nor our analysis of critical habitat. We evaluated all available data, published and unpublished, for Pacific martens within the coastal DPS. Where information gaps exist, we rely on Pacific marten information from outside the DPS, and occasionally from American martens (Martes americana) elsewhere in North America. We use the general term ‘‘marten’’ when speaking about martens in general or applying information gleaned from martens across their range in North America. We reserve the term ‘‘coastal marten’’ for when we are referring exclusively to martens within the coastal DPS. PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 58833 We are aware of species distribution modeling that is underway but was not available for inclusion in the analysis for this proposed rule. If this new information becomes available, it will be considered in the final determination of critical habitat. Species Information The marten is a medium-sized carnivore related to weasels (Mustela sp.), minks (Neovison sp.), otters (Lontra sp.), and fishers (Pekania sp.). Martens have brown fur with distinctive coloration on the throat and upper chest that varies from orange to yellow to cream. They have proportionally large and distinctly triangular ears and a bushy long tail. Martens are territorial, and dominant males maintain home ranges that encompass one or more female’s home ranges. Martens have a generalist diet dominated by small mammals, but birds, insects, and fruits are also seasonally important. Martens across North America generally select older forest stands that are structurally complex (e.g., late-successional, oldgrowth, large-conifer, mature, late-seral). These forests generally have a mixture of old and large trees, multiple canopy layers, snags and other decay elements, dense understory, and have a biologically complex structure and composition. A thorough review and assessment of the taxonomy, life history, and ecology, including limiting factors and species resource needs of the coastal marten is presented in the SSA report (Service 2019a, entire) (available at https://www.fws.gov/arcata/ and at https://www.regulations.gov under Docket No. FWS–R8–ES–2018–0076). 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. Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as: An area that may generally be delineated around species’ occurrences, as determined by the E:\FR\FM\25OCP1.SGM 25OCP1 jspears on DSK121TN23PROD with PROPOSALS1 58834 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species’ 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). Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and translocation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Designation also does not allow the government or public to access private lands, nor does designation require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement ‘‘reasonable and prudent alternatives’’ to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act’s definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation 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 VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features that occur in specific occupied areas, we focus on the specific features that are essential to support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. Under the second prong of the Act’s definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species, the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts’ opinions or personal knowledge. Habitat is dynamic, and species may move from one area to another over time. 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) the prohibitions found in section 9 of the Act. 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. Prudency Determination Section 4(a)(3) of the Act, as amended, and implementing regulations E:\FR\FM\25OCP1.SGM 25OCP1 jspears on DSK121TN23PROD with PROPOSALS1 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances: (i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (ii) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; (iv) No areas meet the definition of critical habitat; or (v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available. As discussed in the final listing rule (85 FR 63806, October 8, 2020), there is currently no imminent threat of take attributed to collection or vandalism identified under Factor B (16 U.S.C. 1533(a)(1)(B)) for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our SSA and final listing rule for the coastal marten, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the coastal marten and that those threats in some way can be addressed by section 7(a)(2) consultation measures. The species occurs wholly in the jurisdiction of the United States, and we are able to identify areas that meet the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met and because there are no other circumstances the Secretary has identified for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the coastal marten. VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 Critical Habitat Determinability Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the coastal marten is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Data sufficient to perform required analyses are lacking, or (ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of ‘‘critical habitat.’’ When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)). In our proposed listing rule (83 FR 50574, October 9, 2018), we stated that critical habitat was not determinable because the assessment of the economic impacts of the designation were still ongoing and we were in the process of acquiring the complex information needed to perform that assessment. We have now obtained that information and completed an economic analysis of the proposed critical habitat. In addition, we reviewed the available information pertaining to the biological needs of the species and habitat characteristics where these species are located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the coastal marten. Physical or Biological Features Essential to the Conservation of the Species In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 define ‘‘physical or biological features essential to the conservation of the species’’ as the features that occur in specific areas and that are essential to support the lifehistory needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 58835 characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkali soil for seed germination, protective cover for migration or predator avoidance, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species. In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include but are not limited to space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance. Details on habitat characteristics for the Pacific marten can be found in the SSA (Service 2019a, pp. 24–35) and Slauson et al. (2019a, pp. 47–63). We summarize below the more important habitat characteristics, particularly those that support the description of physical and biological features essential to the conservation of the coastal marten DPS. We also describe habitat features relative to the scale at which coastal martens use these features, allowing us to more logically organize the physical and biological features. Greater detail can be found elsewhere (Slauson et al. 2019a, pp. 47– 59; Service 2019a, pp. 24–34), but we summarize these scales as follows: At the site scale, coastal martens look for structures and surrounding features that accommodate activities such as denning and resting (see Cover or Shelter). At the stand scale, coastal martens select forest stands with the structural features that E:\FR\FM\25OCP1.SGM 25OCP1 58836 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules provide one or more life-history requirements (e.g., features that support marten prey populations, allow prey to be vulnerable to martens, provide structures for denning and resting, and provide cover). At the home range scale, coastal martens position their home ranges to include enough high-quality habitat to provide for life-history needs (e.g., foraging, reproduction, and cover) and access to mates, while avoiding other coastal martens of the same sex, as well as avoiding competitors and predators. The distribution of suitable habitat at the landscape scale influences coastal marten dispersal, location of coastal marten home ranges, and population density. Coastal marten dispersal across the landscape allows for gene flow and maintains adjacent populations (or metapopulation structure where it exists); dispersing individuals select suitable portions of the landscape that are unoccupied by individuals of the same sex to establish home ranges (Slauson et al. 2019a, p. 48). Space for Individual and Population Growth and for Normal Behavior Coastal martens are solitary animals except during mating and when females are raising young. They establish home ranges in areas that provide enough habitat to support their life-history needs (Table 1), allow access to mates, and avoid individuals of the same sex (Slauson et al. 2019a, pp. 47–48). Coastal marten home ranges typically include a high proportion (greater than or equal to 70 percent) of older forest habitat, and both males and females appear to spend a majority of their time in this habitat (Service 2019, p. 30). The older forest habitats used by coastal martens typically have large amounts of the features necessary for cover, foraging, resting, and denning (see descriptions of specific features under the headings immediately below), such as large trees or snags with decay elements, down wood, and dense ericaceous shrub understories. TABLE 1—LIFE HISTORY AND RESOURCE NEEDS OF THE COASTAL MARTEN Life stage Kit (birth to dispersal, ∼6 months). jspears on DSK121TN23PROD with PROPOSALS1 Juvenile and Adults 2+ years. Resources and/or circumstances needed for individuals to complete each life stage • Female provides food, thermal source, and protection from predators. (Markley and Bassett 1942, pp. 606–607). • Den sites are enclosed areas to shelter from weather and predators and are most often large diameter trees (live or dead) with cavities, but also include hollow logs, crevices under rocks, log piles, and squirrel nests. (Slauson and Zielinski 2009, p. 40; Thompson et al. 2012, pp. 223–224; Moriarty 2017a, pp. 82–88). • Dispersal habitat is an area that supports movement from natal area to a location where home range can be established. (Chapin et al. 1998, pp. 1334–1336; Johnson et al. 2009, p. 3365). • Resting sites include cavities, brooms, hollow logs, large limbs, rock crevices, and debris piles and are used to conserve energy and avoid predators. (Taylor and Buskirk 1994, pp. 253–255; Shumacher 1999, pp. 26–58; Slauson and Zielinski 2009, pp. 39–40; 223–224; Thompson et al. 2012, pp. 223–224; Early et al. 2017, entire). • Food consists primarily of squirrels and chipmunks, birds, berries and insects seasonally. (Slauson and Zielinski 2017, entire; Slauson and Zielinski 2019, entire; Eriksson et al. 2019, entire). • Understory consists of dense shrub layer and decayed wood structures providing prey habitat. Shrub layer also provides protection from predators. (Andruskiw et al. 2008, pp. 2275–2277; Slauson and Zielinski 2009, pp. 39– 42; Eriksson 2016, pp. 19–23). • Forest canopy cover provides protection from aerial and terrestrial predators. Unfragmented habitat excludes bobcats, the primary predator of coastal marten, which are found in more fragmented landscapes (Slauson and Zielinski 2001, entire; Powell et al. 2003, entire; Linnell et al. 2018, p. 10; Slauson et al., in prep). • Home range is habitat that provides an adequate mix of resting and foraging habitat and overlap with opposite sex individuals to provide breeding season encounters. (Ellis 1998 pp. 35–41; Bull and Heater 2001, p. 1; Self and Kerns 2001, p. 5; Slauson 2003, pp. 49–54; Moriarty et al. 2017b, pp. 684–686; Linnell et al. 2018, p. 10; Slauson et al. 2019a, entire). Martens occupying shore pine (Pinus contorta spp. contorta) habitat in coastal Oregon have the smallest home ranges recorded in North America, with average sizes of 0.32 square miles (mi2) (0.84 square kilometers (km2)) and 1.18 mi2 (3.06 km2) for females and males, respectively (Moriarty et al. 2017b, p. 685). Limited data from martens in northern California (3 adult males) show home range sizes from 1.2 to 1.5 mi2 (3 to 4 km2), which is similar to home range sizes of Pacific martens in the Sierra Nevada Range elsewhere in California (Slauson et al. 2019a, p. 56). Dispersal is the means by which marten populations maintain and expand their distribution and population size. Successful dispersal requires functional connections between habitat patches capable of supporting reproduction across the landscape. Hence, individual martens disperse by selecting portions of the landscape that VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 facilitate movement and searching for an area in which to select a home range that does not overlap with same-sex individuals. Where landscapes are heavily disturbed through intensive logging, juvenile dispersal may be especially costly, as evidenced by lower survival and poorer body condition of martens dispersing through regenerating vs uncut landscapes (Johnson et al. 2009, pp. 3364–3366). Little else is known about what constitutes dispersal habitat for martens, but the combination of reduced foraging efficiency and increased predation risk in predominantly clearcut landscapes may strongly influence dispersal dynamics of martens. (Service 2019a, pp. 22, 33, 58). Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements Martens are dietary generalists. Small mammals dominate their diet year PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 round, with some mammal species varying by season. Birds, insects, and fruits are also seasonally important. Habitat characteristics associated with marten prey are important to provide a food source for martens. Many of the small mammal species that martens prey on reach their highest densities in forest stands with mature and latesuccessional structural features; in these stands, the food resources used by marten prey species, such as conifer seeds and truffles, are most abundant. In addition, other features associated with increased densities or abundances of marten prey species include increased density and complexity of ericaceous shrub layers, increased amounts of coarse woody debris, and density of large snags. Structural complexity on the forest floor improves predation success for martens. In the shore pine forest community of the central coastal Oregon population, areas with an E:\FR\FM\25OCP1.SGM 25OCP1 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules ericaceous understory had a significantly higher relative abundance of marten prey species, and had a significantly more diverse assemblage of prey species compared to nearby interior forests (Eriksson 2016, p. 16). Many of the bird species found in marten diets are also associated with shrub understories, and these birds feed on the fruits of ericaceous shrub species (Service 2019a, pp. 22–24; Slauson et al. 2019a, pp. 33–36). Cover or Shelter Bobcats (Lynx rufus) and other felids are the primary predators documented for coastal martens (Slauson et al. 2014, p. 2; Slauson et al. 2019a, p. 40). Other large-bodied mammalian (e.g., coyotes (Canis latrans)) and avian (e.g., raptors and owls) predators co-occur with and prey upon martens across North America (Clark et al. 1987, p. 4; Buskirk and Ruggiero 1994, p. 28). Avoiding these predators has shaped marten behavior and likely influences their selection of highly complex forest structure for cover and shelter while avoiding areas lacking overhead or escape cover that are more typically occupied by generalist predators such as bobcats and coyotes (Slauson et al. 2019a, pp. 38–40). Cover and shelter also provide protection from the physical elements and allow martens to maintain their body temperature (thermoregulation). Martens seek out cover and shelter at several scales. At the site scale, they look for structures and surrounding features that accommodate denning and resting. Denning sites are used by females for birthing and raising their kits (see Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring). Resting sites are used by both sexes on a daily basis, and martens seek them out between foraging bouts to provide thermoregulatory benefits and protection from predators (Taylor and Buskirk 1994, p. 255; Slauson et al. 2019a, p. 48). Martens need many resting structures distributed across their home range to meet seasonal changes in thermoregulatory needs. Martens primarily use large-diameter live trees, snags, and down logs, which are typically the largest available structures in the area. Within these structures, martens commonly rest either in cavities, formations caused by forest pathogens such as dwarf mistletoe (Arceuthobium spp.), or on platforms such as broken-top snags or large live branches. Cavities may become more important during the winter when conditions are wetter and colder. Lessfrequented but still important resting structures include large slash piles with large-diameter logs, natural rock piles, and shrub clumps (Slauson et al. 2019a, pp. 48–50). In less productive shore pine communities in coastal Oregon, where large down wood and large standing trees and snags are not as common, martens have been most commonly found resting in squirrel nests, but also use bare branches and hollows at the base of overturned trees (Service 2019a, p. 25). At larger scales (stand, home range, and landscape), martens need sufficient habitat, such as overhead and escape cover, to minimize their exposure to predators as they move through their home range or disperse across the landscape. Martens tend to avoid forest openings and landscapes with large areas of forest openings. An analysis of martens across North America found that individual home ranges typically contain a large proportion (greater than or equal to 70 percent) of suitable habitat; furthermore, marten density declines when the area of suitable habitat across the landscape is reduced to less than 70 percent as a result of wildfire, forest management, or other 58837 stand-replacing disturbance (Thompson et al. 2012, pp. 209, 217, 228). Within the coastal marten DPS, on sites with highly productive soil conditions, martens select old-growth and late-mature stands dominated by Douglas-fir overstories; these stands have dense (greater than 70 percent cover) shrub layers that are spatially extensive and dominated by ericaceous species, including but not limited to evergreen huckleberry (Vaccinium ovatum), salal (Gaultheria shallon), and Rhododendron sp. (Slauson et al. 2019a, p. 51). On less productive sites, (e.g., serpentine soils and coastal shore pine communities), the amount of overstory cover may be more variable, but the dense understory characteristics remain similar to productive sites (Slauson et al. 2019a, pp. 51–53). Martens favor shrub communities that comprise shade-tolerant, long-lived, mastproducing species that maintain site dominance, rather than early-seral shrub communities that are dominant only for short periods after a disturbance (e.g., Ceanothus sp.) (Slauson et al. 2019a, p. 9). Occupying home ranges with large amounts of overhead cover provided by shrub or forest canopy is thought to reduce marten exposure to predators. In addition, occupying landscapes with similarly large amounts of mature or old forest cover with complex understory minimizes their distributional overlap with generalist predators that are typically associated with younger forests or more open habitats (Slauson et al. 2019a, p. 40). Mature and old-forest characteristics differ across the DPS depending on the site and plant association. Old-forest characteristics of example plant series are provided in Table 2; however, old-forest conditions in other plant series within critical habitat units may also provide sufficient habitat. TABLE 2—CHARACTERISTICS OF OLD-GROWTH STANDS IN A SAMPLE OF DIFFERENT PLANT SERIES THAT OCCUR WITHIN THE DPS Stand feature .... jspears on DSK121TN23PROD with PROPOSALS1 Live trees .......... Canopy ............. Snags ................ VerDate Sep<11>2014 Douglas-fir on western hemlock sites.a Minimum old-growth values. ≥2 species. Wide range of ages and sizes. Douglas-fir ≥8/ac >32-in diameter (≥20/ha >81 cm) or >200 years old. deep, multi-layered canopy. Conifers ≥4/ac >20″ diameter (10/ ha >51 cm) and >15 ft (4.5 m) tall. 17:14 Oct 22, 2021 Jkt 256001 PO 00000 Douglas-fir plant series.b Mean old-growth values. Tanoak plant series.b Mean old-growth values. Wide range of size classes: Softwood trees 8/ac 30- to 39.9-in diameter (≥20/ha 76 to 101.5 cm), and 9/ac >40″ diameter (22/ha >101.5 cm). Wide range of size classes. Softwood trees 8/ac 30- to 39.9-in diameter (≥20/ha 76 to 101.5 cm), and 2/ac >40″ diameter (5/ ha >101.5 cm). 2.4/ac >20″ diameter (5.9/ha >51 cm) and >50 ft (4.5 m) tall. 1.6/ac >20″ diameter (4.0/ha >51 cm) and >50 ft (4.5 m) tall. Frm 00024 Fmt 4702 Sfmt 4702 E:\FR\FM\25OCP1.SGM 25OCP1 58838 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules TABLE 2—CHARACTERISTICS OF OLD-GROWTH STANDS IN A SAMPLE OF DIFFERENT PLANT SERIES THAT OCCUR WITHIN THE DPS—Continued Logs .................. ≥15 tons/ac (34 metric tons/ha) including 4 pieces/ac ≥24″ diameter (10/ha >= 61 cm) and >50 ft (15 m) long. 24.2 tons/ac (54.5 metric tons/ha) of logs >10 in (25 cm) diameter and >1 ft (0.3 m) long. 6.9 logs/ac (17.0 logs/ha) >20 in (51 cm) and <30 in (76 cm) diameter; 3.8 logs/ac (9.4 logs/ha) >30 in (76 cm) diameter. 23.8 tons/ac (53.5 metric tons/ha) of logs >10 in (25 cm) diameter and >1 ft (0.3 m) long. 6.5 logs/ac (16.1 logs/ha) >20 in (51 cm) and <30 in (76 cm) diameter; 3.9 logs/ac (9.6 logs/ha) >30 in (76 cm) diameter. a Minimum b Mean old-growth definitions found in Franklin et al. (1986, p. 4). old-growth definitions found in Jimerson et al. (1996, pp. E–16 to E–23). jspears on DSK121TN23PROD with PROPOSALS1 Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring Females give birth to kits in forest structures called natal dens. Subsequent structures used to raise young kits are called maternal dens. The most common den structures used by martens across North America are cavities in largediameter live and dead trees, and known coastal marten dens also correspond to this pattern. Trees containing marten den sites are structurally complex, with large limbs, broken tops, hollow bases, complex crowns, or multiple cavities. Martens appear to be more selective of habitat conditions at den sites than at rest sites; this tendency likely reflects a need for foraging habitat to be within close proximity of a den site, allowing females to minimize energy expenditure for foraging and minimize time spent away from kits (Service 2019a, pp. 26– 27; Slauson et al. 2019a, p. 50). Habitats Protected From Disturbance As noted above in the Cover or Shelter section, mature and old forests are important to martens, and marten density declines when landscape amounts are reduced to less than 70 percent of the area, regardless of the disturbance type (Thompson et al. 2012, pp. 209, 217, 228). Marten habitat is lost or degraded through natural disturbances and human-induced changes. Such disturbances can remove habitat components necessary for marten fitness (e.g., canopy cover, denning and resting structures, habitat for marten prey). In California, habitat disturbances that remove escape cover and create extensive openings are associated with increased predation risk by increasing the abundance of habitat generalist carnivores that prey on martens (Slauson et al. 2019a, pp. 40, 57). Forest management is the human disturbance that has the greatest effect on marten habitat in terms of scale and severity. The loss of marten habitat as a result of timber harvest is considered the likely cause of the continued low population levels in California since the State banned trapping in 1946. VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 Vegetation management, such as timber harvest, thinning, fuels reduction, and non-forest habitat restoration can result in temporary or permanent loss, degradation, or fragmentation of suitable coastal marten habitat (Service 2019a, p. 55). Human development also results in permanent habitat conversion, but is generally limited in scope to the area around established communities and existing developments. Within the DPS, wildfire is the natural disturbance that affects by far the greatest area of habitat. Fires are a necessary disturbance feature as they create or facilitate the development of structural features used by martens, such as snags, hollow trees, and down logs. However, fires can also remove large areas of suitable marten habitat that can take many decades to recover (Service 2019a, pp. 48–51). Other natural disturbances that affect marten habitat to a much lesser degree than wildfire include windstorms, landslides, and forest insects and pathogens. These events generally degrade or remove habitat in localized areas. Similar to wildfire, however, they are also important processes for developing forest structures used by coastal martens, such as broken top trees, cavities, and down wood. Summary of Physical or Biological Features for the Coastal Marten We derive the specific physical or biological features (PBFs) essential to the conservation of the coastal marten from studies of this species’ habitat, ecology, and life history as described in the SSA report for the coastal marten (Service 2019a, entire). We have determined that the following PBFs are essential to the conservation of the coastal marten: Physical or Biological Feature 1— Habitat that supports a coastal marten home range by providing for breeding, denning, resting, or foraging. This habitat provides cover and shelter to facilitate thermoregulation and reduce predation risk, foraging sources for marten prey, and structures that provide resting and denning sites. To provide cover and support denning, resting, and PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 foraging, coastal martens require a mature forest overstory, dense understory development, and biologically complex structure that contains snags, logs, other decay elements, or other structures that support denning, resting, or marten prey. Stands meeting the conditions for PBF 1 would also function as meeting PBF 2 (facilitating movement within and between coastal marten home ranges). Stands meeting the condition for PBF 1 contain each of the following three components: (1) Mature, conifer-dominated forest overstory. Overstory canopy cover provides protection to coastal martens from aerial and terrestrial predators, as well as shelter from physical elements such as sun or storms. It also is the source of structural features that coastal martens use for denning and resting, and provides suitable coastal marten prey. Suitable overstory conditions vary depending on the productivity of the site as follows: a. For areas with relatively low productivity (e.g., areas where growing conditions are harsher, such as serpentine sites or coastal shore pine forests, compared to other areas), suitable forest overstory conditions are highly variable. They may contain a sparse conifer overstory, such as in some serpentine areas, or a dense conifer overstory composed mainly of trees smaller than the typical older forest conditions described below in (1)b (e.g., the dense shore pine overstory found in areas occupied by marten along the Oregon coast). b. For other areas with higher productivity, martens tend to favor forest stands in the old-growth or latemature seral stages. The specific forest composition and structure conditions found in higher productivity areas will vary by plant series and site class. Structural and composition descriptions of old-growth or late-mature seral stages for local plant community series should be used where available. In general these stands exhibit high levels of canopy cover and structural diversity in the form of: (1) A wide range of tree sizes, including trees with large E:\FR\FM\25OCP1.SGM 25OCP1 jspears on DSK121TN23PROD with PROPOSALS1 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules diameter and height; (2) deep, dense tree canopies with multiple canopy layers and irregular tree crowns; (3) high numbers of snags, including largediameter snags; and (4) abundant down wood, including large logs, ideally in a variety of decay stages. (2) Dense, spatially extensive shrub layer. The shrub layer should be greater than 70 percent of the area, comprising mainly shade-tolerant, long-lived, mastproducing species (primarily ericaceous species such as salal, huckleberry, or rhododendron, as well as shrub oaks). An extensive layer of dense shrubs provides protection and cover from coastal marten predators. In addition, ericaceous and mast-producing shrubs provide forage for marten prey. (3) Stands with structural features. Structural features that support denning or resting, such as large down logs, rock piles with interstitial spaces, and large snags or live trees with decay elements or suitable resting structures (e.g., hollows and cavities, forked or broken tops, dead tops, brooms from mistletoe or other tree pathogens, or large platforms including abandoned nests). These features provide cover and thermal protection for kits and denning females, and for all animals when they are resting between foraging bouts. Hence, these features need to be distributed throughout a coastal marten home range. They also tend to be among the largest structures in the stand. Many of these features, such as down logs and snags or live trees with decayed elements, also support coastal marten prey. Physical or Biological Feature 2— Habitat that allows for movement within home ranges among stands that meet PBF 1, or supports individuals dispersing between home ranges. Habitat within PBF 2 includes: (1) Stands that meet all three conditions of PBF1; (2) forest stands that only meet the first two components of PBF 1 (mature, conifer-dominated forest overstory and a dense, spatially extensive shrub layer); or (3), habitats with some lesser amounts of shrub, canopy, forest cover, or lesser amounts of smaller structural features as described in PBF 1, and while not meeting the definition of PBF 1, would still provide forage and cover from predators that would allow coastal martens to traverse the landscape to areas of higher quality habitat. Special Management Considerations or Protection When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of this species may require special management considerations or protection to reduce the following direct or indirect threats: Incidents of roadkill; inadvertent poisoning from rodenticides; predation; disease; impacts from wildfire; and vegetation management actions. A detailed discussion of activities influencing the coastal marten and its habitat can be found in the final listing rule (85 FR 63806, October 8, 2020). Special management considerations or protection that may be required within critical habitat areas to address these threats include (but are not limited to) the following: Development of wildlife crossings on major roadways; monitoring and patrolling for unauthorized use of rodenticides in agricultural settings including cannabis operations; maintaining adequate cover and connectivity of habitats to provide cover from predation; implementation of forest management practices that prevent or reduce risk of catastrophic wildfire; reducing indirect impacts to coastal marten habitat from activities adjacent to critical habitat units; and minimizing habitat disturbance, fragmentation, and destruction through use of best management practices for vegetation management activities and providing appropriate buffers around coastal marten habitat. Conservation Strategy and Selection Criteria Used To Identify Critical Habitat Conservation Strategy As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are not currently proposing to designate any areas outside the geographical area occupied by the species because we have not identified any unoccupied areas that meet the definition of critical habitat. The occupied areas identified encompass the varying habitat types and distribution of the species and provide sufficient PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 58839 habitat to allow for maintaining and potentially expanding the populations. To determine and select appropriate occupied areas that contain the physical or biological features essential to the conservation of the species or areas otherwise essential for the conservation of the coastal marten, we developed a conservation strategy for the species. The goal of our conservation strategy for the coastal marten is to recover the species to the point where the protections of the Act are no longer necessary. The role of critical habitat in achieving this conservation goal is to identify the specific areas within the coastal marten’s range that provide essential physical and biological features without which the coastal marten’s range-wide resiliency, redundancy, and representation could not be achieved. This, in turn, requires an understanding of the fundamental parameters of the species’ biology and ecology based on well-accepted conservation-biology and ecological principles for conserving species and their habitats, such as those described by Carroll et al. 1996 (pp. 1–12); Shaffer and Stein 2000 (pp. 301–321); Natural Resources Conservation Service (NRCS) 2004 (entire); Tear et al. 2005 (pp. 835– 849); Groom et al. 2006 (pp. 419–551); Redford et al. 2011 (pp. 39–48); and Wolf et al. 2015 (pp. 200–207); and more specific coastal marten habitat information such as that described in Moriarty et al. 2016 (pp. 71–81); Delheimer et al. 2018 (pp. 510–517); Linnell et al. 2018 (pp. 1–21); Moriarty et al. 2019 (pp. 1–25); and Slauson et al. (2019a, entire). In developing our conservation strategy, we focused on increasing the resiliency, representation, and redundancy of coastal marten populations by maintaining and improving extant marten populations and suitable habitat. Because coastal marten occur in small and isolated populations, the primary focus of the conservation strategy is to maintain and expand extant populations and suitable habitat within those population areas. Suitable habitat includes areas for cover, resting, denning and foraging and also provides for dispersal habitat when breeding or food resources may not be optimal. To maintain redundancy of coastal marten populations, the conservation strategy also focuses on providing for areas in the diversity of habitats that coastal martens have been documented to use. This includes mesic serpentine, coastal shore pine, and lateseral coniferous forests. These habitats are spread across the species’ range and typically provide the physical and biological features essential to the E:\FR\FM\25OCP1.SGM 25OCP1 58840 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules jspears on DSK121TN23PROD with PROPOSALS1 conservation of the species without which range-wide resiliency, redundancy, and representation of the species could not be achieved. As explained further below, this focus led to the inclusion of suitable habitat within the ecological settings where the species occurs as part of the conservation strategy. Selection Criteria and Methodology Used To Determine Critical Habitat As discussed above, to assist in determining which areas to identify as critical habitat for the coastal marten, we focused our selection on extant populations in the diversity of habitats represented by coastal marten. We define the proposed critical habitat as sites that contain the physical or biological features essential to the conservation of the species within the geographical area occupied by the species at the time of listing. To define the areas we consider to be the areas occupied at the time of listing, we started with a set of detection points and grouped detections into extant population areas (EPAs). The EPAs and the habitat areas adjacent to and within dispersal distance between the EPAs encompass the core areas we consider to be occupied at the time of listing. All current verifiable coastal marten detections were used to delineate EPAs within the historical home range. If the total number of detections in an area was less than five or they were separated by greater than 3 mi (5 km) from other verifiable detections, the combined detections were not designated as an EPA due to the insufficient level of information to suggest a likely self-sustaining population (Service 2019a, p. 84). EPAs were considered separate from each other if they were not within 4.6 mi (7.5 km) of each other, which is based on half of the average dispersal distance of a coastal marten. This distance assumes that animals are not regularly moving between EPAs and the EPAs are functioning as separate populations. To better focus the areas occupied at the time of listing and considered to be essential to the conservation of the species, we refined the boundaries of the EPAs using a 60 percent concave hull method to select those areas with a higher prevalence of coastal marten detections. Because the EPAs are based on occurrence records and not habitat, we also used two different habitat models specific to coastal marten to incorporate the habitat used by the coastal marten detections associated with each EPA. These modeled areas are considered occupied by the species based on the VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 continuous nature of the habitat and are within the dispersal distance and home ranges of the species. The first model we used found that coastal martens were positively associated with Old-Growth Structural Index (OGSI), precipitation, and serpentine soils, and negatively with elevation (Slauson et al. 2019b, entire). OGSI is a spatial data layer developed by the U.S. Forest Service (USFS) and Oregon State University and is an index of one to four measurable old-growth structure elements including (1) density of large live trees, (2) diversity of live-tree size classes, (3) density of large snags, and (4) percentage cover of down woody material (Davis et al. 2015, p. 16). OGSI serves as a surrogate for the late-seral structural features that are important to coastal marten survival and, in conjunction with the serpentine soil layer, incorporates several of the PBFs defined above. The inclusion of precipitation in the model accounts for the association of the mesic shrub layer that marten depend on for cover, resting, and foraging. We also used a habitat connectivity model developed by the Service that incorporates OGSI data along with a minimum patch size of habitat to create ‘cores’ of suitable habitat (Schrott and Shinn 2020, entire). We used our model in conjunction with the Slauson et al. 2019b model because the Slauson model does not include low elevation areas known to be occupied by coastal martens. The Service model includes modeled output in lower elevation coastal regions of California and Oregon where we know coastal marten occur. Because the entire combined modeled extent of habitat overestimates the amount of habitat used by and needed for coastal marten conservation, we eliminated any modeled areas that were not adjacent to EPAs and eliminated modeled output in arid environments east of the Klamath River in California where suitable habitat is more scarce and localized to moist ravines. In addition, we trimmed the polygons where there were long tendrils displaying high edge-to-interior ratio that were generally artifacts of roads, modeled output, or misaligning of ownership projections and, thus, did not contain the PBFs considered essential to the conservation of the species. We further evaluated the polygons based on the PBFs for coastal marten and current land management practices under the Northwest Forest Plan (NWFP). We prioritized inclusion of Federal reserve lands and State lands occupied by the species at the time of listing because these lands contribute PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 most to the conservation of the species, but also included those private lands that contain the PBFs essential to coastal marten conservation and which may require special management. When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the coastal marten. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Due to unverifiable ownership and mapping information, some small portions of private or unclassified lands may occur within the mapping of Units 1, 2 and 3, but which were not intended for inclusion within the designation. These areas are extremely small artifacts of mapping discrepancies and potential overlapping data information, do not contain the PBFs considered essential to the conservation of the species, and are not intended to be included as critical habitat as defined in this rule. Accordingly, any private lands in Units 1, 2, or 3 inadvertently included in the proposed designation are not considered critical habitat because they are part of inadvertent overlap or undeterminability and are too small to be significant for coastal marten conservation. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat. We propose to designate as critical habitat lands that we have determined are occupied at the time of listing (i.e., currently occupied) and that contain one or more of the physical or biological features that are essential to support life-history processes of the species. Units are proposed for designation based on one or more of the physical or biological features being present to support the coastal marten’s life-history processes. Some units contain all of the identified physical or biological features and support multiple life-history processes. Some units contain only some of the physical or biological E:\FR\FM\25OCP1.SGM 25OCP1 58841 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules features necessary to support the coastal marten’s particular use of that habitat. The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on https:// www.regulations.gov at Docket No. FWS–R8–ES–2020–0151 and on our internet site, https://www.fws.gov/ arcata. Proposed Critical Habitat Designation We are proposing five units as critical habitat for the coastal marten. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the coastal marten. Table 3 below identifies all of the units within the geographical area occupied at the time of listing that contain the physical or biological features that support multiple life-history processes for the coastal marten and are thus essential to the conservation of the species. TABLE 3—PROPOSED CRITICAL HABITAT UNITS FOR PACIFIC MARTEN (COASTAL DPS) [Area (acres (hectares)) reflects all land within critical habitat unit boundaries and includes area that may not contain PBFs.] Ownership (in acres (hectares)) Unit No. and name Federal Unit 1: OR–1 Siuslaw .............. Unit 2: OR–2 Siltcoos .............. Unit 3: OR–3 Coos Bay ........... Unit 4: OR–4 Cape Blanco ...... Unit 5: OR– CA–5 Klamath Mountains ............................. Totals ................................ State Total Tribal Other 94,094 (37,673) 8,582 (3,472) 14,934 (6,044) 1,021 (413) 2,124 (859) 249 (101) 648 (262) 3,025 (1,224) 0 0 0 0 0 0 0 0 95,218 (38,534) 8,830 (3,574) 15,582 (6,306) 4,046 (1,637) 1,154,197 (467,103) 1,271,828 (514,708) 19,829 (8,024) 25,875 (10,471) 26,126 (10,573) 26,126 (10,573) 89,475 (36,210) 89,475 (36,210) 1,289,627 (521,913) 1,413,305 (571,965) Note: Area sizes may not sum due to rounding. ‘‘Other’’ represents, city, county, private or otherwise unidentified land ownership areas. jspears on DSK121TN23PROD with PROPOSALS1 We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the coastal marten, below. Unit 1: Siuslaw Unit. Lincoln and Lane Counties, Oregon This unit consists of approximately 95,218 ac (38,534 ha) and encompasses the northern portion of the central coastal Oregon population of coastal martens. Almost all of the unit is within Lane County, north of Oregon Highway 126, but a small portion extends north into Lincoln County, Oregon, on lands managed by the Siuslaw National Forest. The unit mostly borders the Pacific Ocean from just south of the town of Yachats, south to near Sea Lion Caves; further inland, the unit extends as far south as Mercer Lake. Portions of the unit extend inland from the coast as much as 18 mi (29 km), but most of the unit is within 12 mi (19 km) of the coast. The unit is almost entirely in Federal ownership (94,094 ac (37,675 ha)) (99 percent), specifically the Siuslaw National Forest, with approximately 74,899 ac (30,311 ha) in Late-Successional Reserve (LSR) land use allocation under the NWFP (USFS 1994, entire). Rock Creek and Cummins Creek Wilderness Areas make up much of the rest of the Federal lands. Oregon State Park lands along the coast comprise most of the remainder of the unit (2,124 ac (859 ha)), including Neptune, Heceta Head, Washburne, and Ponsler State Parks. Recreation is a VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 principal land use in this unit. Because the Federal lands are in an LSR allocation, forest management is limited to activities that are neutral or beneficial to the retention or development of latesuccessional forest conditions. This unit was occupied at the time of listing (2020), is currently occupied by coastal martens, and contains one or more of the physical or biological features essential to the conservation of the species. This unit represents the northernmost distribution of coastal martens in Oregon (based on contemporary detections), as well as relatively unfragmented old forest compared to other forests near the ocean within the DPS. This area may facilitate movement of coastal martens inland. This unit provides all of the features described in PBFs 1 and 2. Overstory conditions as described in PBF 1 are mostly associated with highproductivity sites across much of this unit, characteristic of the mature forests of the Sitka spruce vegetation zone as described in Franklin and Dyrness (1988, pp. 58–59). The habitat-based threats in this unit that may require special management include removal of forest vegetation, primarily through vegetation management such as timber harvest. Approximately 80 percent of the Federal portion of this unit is managed as a Late Successional Reserve, which requires retaining or developing latesuccessional conditions that could be suitable for coastal martens. However, PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 some treatments that meet LSR standards and guidelines, such as thinning to increase tree size or stand complexity, can result in loss of dense understories that are valuable to coastal martens to escape from predators and provide suitable prey habitat. We have not identified potential exclusions at this time, but may consider information regarding potential exclusions provided during the comment period for this proposal. Unit 2: Siltcoos Unit. Lane and Douglas Counties, Oregon This unit consists of approximately 8,830 ac (3,574 ha) and encompasses the central portion of the central coastal Oregon population of coastal martens in coastal Lane and Douglas Counties, Oregon. The unit occurs along the coastline west of Highway 101 and extends from near the city of Florence, Oregon, south approximately 12 mi (19 km) to the vicinity of Tahkenitch Creek, west of Tahkenitch Lake. Land ownership within the unit includes approximately 8,582 ac (3,472 ha) of Federal and 249 ac (101 ha) of State land. The Federal portion is within the Oregon Dunes National Recreation Area, managed by the Siuslaw National Forest. The State portion comprises Honeyman State Park. Recreation is the principal land use in this unit, primarily All-Terrain Vehicle (ATV) use on the open dunes and forested trails within the recreation area and surrounding areas. E:\FR\FM\25OCP1.SGM 25OCP1 58842 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules jspears on DSK121TN23PROD with PROPOSALS1 This unit was occupied at the time of listing (2020) and is currently occupied by coastal martens. Coastal martens in this unit and Unit 3 exhibit the highest densities and smallest home ranges documented in North America (Linnell et al. 2018, p. 13), indicating that the physical and biological features coastal martens require are widely available in this unit. The unit contains all of the components described in PBFs 1 and 2. For the forest overstory component of PBF 1, this unit falls into the less productive site category, due to the harsher growing conditions along the Oregon coast. Forest vegetation in this unit generally comprises dense strands of shore pine with extremely dense shrub understories, as described in Franklin and Dyrness (1988, pp. 291– 294). This unit encompasses one of four known coastal marten populations, allowing for maintaining redundancy across the DPS. Coastal martens in this unit and Unit 3 are generally isolated from coastal martens in the rest of the DPS, with limited ability to connect populations across the landscape. The habitat-based threats in this unit that may require special management include possible loss of shore pine and understory shrub habitat in an effort to restore movement of coastal sand dunes or increase open areas for recreation vehicles. An additional threat is the invasion of nonnative shrub species (e.g., Scotch broom (Cytisus scoparius)) that may preclude the development of ericaceous shrubs and shore pine that are known components of suitable coastal marten habitat. We have not identified potential exclusions at this time, but may consider information regarding potential exclusions provided during the comment period for this proposal. Unit 3: Coos Bay Unit. Douglas and Coos Counties, Oregon This unit consists of approximately 15,582 ac (6,306 ha) and encompasses the southern portion of the central coastal Oregon population of coastal martens in coastal Douglas and Coos Counties, Oregon. The unit extends from Winchester Bay south to the north spit of Coos Bay proper, and lies west of U.S. Highway 101. Land ownership includes 14,934 ac (6,044 ha) of Federal and 648 ac (262 ha) of State land. The Federal portion is within the Oregon Dunes National Recreation Area, managed by the Siuslaw National Forest. The State portion comprises Umpqua Lighthouse State Park. This unit is otherwise similar to Unit 2 in terms of primary land use, coastal marten occupancy, presence of physical and biological features, vegetation VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 description, essentiality of conservation, and habitat based threats. Recreation is the principal land use in this unit, primarily ATV use on the open dunes and forested trails within the recreation area and surrounding areas. This unit was occupied at the time of listing (2020) and is currently occupied by coastal martens. Coastal martens in this unit, along with Unit 2, exhibit the highest densities and smallest home ranges in North America (Linnell et al. 2018, p. 13), indicating that the physical and biological features coastal martens require are widely available in this unit. The unit contains all of the components described in PBFs 1 and 2. For the forest overstory component of PBF 1, this unit falls into the less productive site category, due to the harsher growing conditions along the Oregon coast. Forest vegetation in this unit generally comprises dense strands of shore pine with extremely dense shrub understories, as described in Franklin and Dyrness (1988, pp. 291–294). This unit encompasses one of four known coastal marten populations, allowing for maintaining redundancy across the DPS. Coastal martens in this unit and Unit 2 are generally isolated from coastal martens in the rest of the DPS, with limited ability to connect populations across the landscape. The habitat-based threats in this unit that may require special management include addressing the possible loss of shore pine and understory shrub habitat in an effort to restore movement of coastal sand dunes or increase open areas for recreation vehicles. An additional threat is the invasion of nonnative shrub species (e.g., Scotch broom) that may preclude the development of ericaceous shrubs and shore pine that are known components of suitable coastal marten habitat. Loss of habitat adjacent to the unit as a result of the Jordan Cove liquefied natural gas project will reduce connection capacity with coastal martens detected on the north spit to the south (Service 2020, pp. 46–50). We have not identified potential exclusions at this time in this unit, but may consider information regarding potential exclusions provided during the comment period for this proposal. Unit 4: Cape Blanco Unit. Coos and Curry Counties, Oregon This unit consists of approximately 4,046 ac (1,637 ha) and encompasses the immediate coastal portion of the southern coastal Oregon population of coastal martens in coastal Coos and Curry Counties, Oregon. The unit extends from just south of the Bandon State Natural Area, south to Cape PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 Blanco State Park, and lies west of U.S. Highway 101. Land ownership includes 1,021 ac (413 ha) of Federal and 3,025 ac (1,224 ha) of State land. The Federal portion is managed by the Bureau of Land Management (BLM) as a District Designated Reserve with no programmed timber harvest; portions of the reserve are managed for recreation, while other portions are managed as the New River Area of Critical Environmental Concern to protect and conserve natural resources. The State portion comprises Cape Blanco State Park and Floras Lake State Natural Area. Recreation is the principal land use in this unit. This unit was occupied at the time of listing (2020) and is currently occupied by coastal martens and contains one or more of the components described in PBFs 1 and 2 that are essential to the conservation of the species. The unit is a mix of shore pine dominated forests in the lowlands near the ocean, and more mature Sitka spruce forest in the higher bluffs around Cape Blanco. This unit encompasses occupied coastal forest that is known to be suitable habitat for coastal martens. The habitat-based threats in this unit that may require special management are the prevalence of invasive shrub species that may preclude the development of ericaceous shrubs and shore pine that are known components of suitable coastal marten habitat. We have not identified potential exclusions at this time, but may consider information regarding potential exclusions provided during the comment period for this proposal. Unit 5: Klamath Mountains Unit. Coos, Curry, Douglas, and Josephine Counties, Oregon. Del Norte, Humboldt, and Siskiyou Counties, California This unit consists of approximately 1,289,627 ac (521,913 ha) and occurs mostly within the Klamath Mountains of southwestern Oregon and northwestern California. Within Oregon, the unit occurs in the southern part of Coos County, just south of Powers, Oregon, and extends south through eastern Curry and western Josephine Counties, with the northeastern fringe of the unit extending into Douglas County. The northwestern portion of this unit consists of a non-contiguous portion that encompasses Humbug Mountain State Park. The unit extends south into California, occupying much of the eastern portion of Del Norte County, extending south into Humboldt County and east into Siskiyou County. In California, the unit lies west of U.S. Highway 96 and extends all the way to the Pacific Ocean in northern Humboldt E:\FR\FM\25OCP1.SGM 25OCP1 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules jspears on DSK121TN23PROD with PROPOSALS1 County, encompassing Redwood National and State Parks. The unit is 89 percent federally owned (1,154,197 ac (467,103 ha)), with an additional 19,829 ac (8,024 ha) of State lands, 26,126 ac (10,573 ha) of Tribal lands, and the remainder (89,475 ac (36,210 ha)) owned by private or local governments. The USFS is the principal Federal land manager (Rogue River-Siskiyou, Six Rivers, and Klamath National Forests), with the BLM managing additional lands in Oregon, and the National Park Service in California. LSRs account for 46 percent of the Federal ownership. In addition, several Wilderness Areas are within this unit, including Grassy Knob, Wild Rogue, Copper Salmon, and Kalmiopsis in Oregon, and the Siskiyou Wilderness in California. This unit was occupied at the time of listing (2020) and is currently occupied by coastal martens and contains one or more of the physical or biological features essential to the conservation of the species. This unit represents the southernmost distribution of coastal martens in the DPS and encompasses the majority of known coastal marten detections. Outside of the northern portion of Unit 1, it also is the only source of non-shore pine habitat, and includes a variety of vegetation conditions that coastal martens use, enhancing representation. This unit contains key connectivity areas for coastal martens to move either north or south in the DPS, as well as inland or towards the coast. This unit provides all of the features described in PBFs 1 and 2. Overstory conditions as described in PBF 1 are associated with high productivity sites across much of the unit, but low-productivity serpentine sites also occur across this unit. The habitat-based threats in this unit that may require special management include removal of forest vegetation, primarily through vegetation management such as timber harvest. Fuels management to reduce the risk of fire is also a regular activity throughout much of this unit. We have identified potential exclusions for some private and Tribal lands in this unit (see Exclusions). These potential exclusions include 76,544 ac (30,975 ha) of private land and 26,126 ac (10,573 ha) of Tribal land in the California portion of the unit. Effects of Critical Habitat Designation Section 7 Consultation 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 VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species. 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, or carried out by a Federal agency—do not require section 7 consultation. Compliance with the requirements of section 7(a)(2) is documented 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 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 58843 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 Service 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 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency’s discretionary involvement or control is authorized by law) and, subsequent to the previous consultation, we have listed a new species or designated critical habitat that may be affected by the Federal action, or the action has been modified in a manner that affects the species or critical habitat in a way not considered in the previous consultation. In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but the regulations also specify some exceptions to the requirement to reinitiate consultation on specific land management plans after subsequently listing a new species or designating new critical habitat. See the regulations for a description of those exceptions. Application of the ‘‘Destruction or Adverse Modification’’ Standard The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. 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. E:\FR\FM\25OCP1.SGM 25OCP1 jspears on DSK121TN23PROD with PROPOSALS1 58844 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules 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 violate section 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation. The scale and context of activities are particularly important in evaluating the potential effects on coastal marten habitat. The degree to which management activities are likely to affect the capability of critical habitat to support coastal martens will vary depending on factors such as the scope and location of the action, and the quantity of critical habitat affected. Activities that the Service may, during a consultation under section 7(a)(2) of the Act, be considered likely to destroy or adversely modify critical habitat include, but are not limited to: (1) Actions that would remove, manipulate, degrade, or destroy coastal marten habitat at such a magnitude that the entirety of the designated critical habitat would no longer serve its intended value of providing for conservation of the species. Activities that could result in such an impact could include very large-scale mechanical (including controlled fire), chemical, or biological (biocontrol agents) actions that may cause significant reductions in the amount, extent, or quality of habitat available to coastal martens for resting, denning, feeding, breeding, sheltering, and dispersing. While we are currently unaware of any planned activities involving Federal actions that could reach this magnitude of impact to the essential physical or biological features, known activities that have the potential to impact components of these features include timber sales, vegetation management, hazard tree removal, salvage of large areas of trees killed by fire or other mortality source, noxious weed treatments, forest pest and disease management, fire management including fire suppression and fuel reduction treatments, forest and aquatic restoration projects, activities conducted under mining permits, activities conducted under travel management plans (e.g., road maintenance, construction, and decommissioning), cleaning up and restoring unauthorized cannabis cultivation sites, recreation and visitor services projects and site development, communication projects and other infrastructure projects. Federal agencies likely to engage with the Service on these activities include the USFS, BLM, National Park Service, and Bureau of Indian Affairs. VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 (2) Actions in relation to the Federal highway system, as regulated by the U.S. Department of Transportation, that would remove, fragment, manipulate, degrade, or destroy coastal marten habitat at such a magnitude that the entirety of the designated critical habitat would no longer serve its intended value of providing for conservation of the species. While we are currently unaware of any planned activities involving the Federal highway system that could reach this magnitude of impact to the essential physical or biological features, known activities that have the potential to impact components of these features include very large-scale road and bridge construction and right-of-way designation, maintenance or improvements of existing highways, and other infrastructure projects. These activities could remove, fragment, or reduce the amount, extent, or quality of habitat needed by coastal martens for resting, denning, feeding, breeding, sheltering, and dispersing. (3) Actions regulated by the Federal Energy Regulatory Commission, which are energy development projects that would remove, manipulate, degrade, or destroy coastal marten habitat at such a magnitude that the entirety of the designated critical habitat would no longer serve its intended value of providing for conservation of the species. While we are currently unaware of any planned activities involving Federal actions that could reach this magnitude of impact to the essential physical or biological features, known energy development projects that have the potential to impact components of these features could include, but are not limited to, very large-scale powerlines, liquefied natural gas pipelines and terminals, and solar and wind farms. These activities could remove or reduce the amount, extent, or quality of habitat needed by coastal martens for resting, denning, feeding, breeding, sheltering, and dispersing. Exemptions Application of Section 4(a)(3) of the Act Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: ‘‘The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 habitat is proposed for designation.’’ There are no Department of Defense (DoD) lands with a completed INRMP within the proposed critical habitat designation. Consideration of Exclusions Under Section 4(b)(2) of the Act 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 available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts. Consideration of Economic Impacts Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. 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, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected E:\FR\FM\25OCP1.SGM 25OCP1 jspears on DSK121TN23PROD with PROPOSALS1 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules by the designation of critical habitat (e.g., under the Federal listing as well as other Federal, State, and local regulations). The baseline, therefore, 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. The incremental conservation efforts and associated impacts would not be expected without 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 are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary section 4(b)(2) exclusion analysis. For this particular designation, we developed an incremental effects memorandum (IEM) (Service 2019b, entire) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the coastal marten (Industrial Economics (IEc) 2020, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs (i.e., absent critical habitat designation) and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. If there are any unoccupied units in the proposed critical habitat designation, the screening analysis assesses whether any VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 additional management or conservation efforts may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM are what we consider our draft economic analysis (DEA) of the proposed critical habitat designation for the coastal marten; our DEA is summarized in the narrative below. Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the coastal marten, first we identified, in the IEM dated October 22, 2019, probable incremental economic impacts associated with the following categories of activities: (1) Timber harvest activities; (2) wildfire or wildfire suppression activities; (3) road construction activities; (4) remediation of unauthorized cannabis cultivation sites; and (5) habitat restoration activities. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the coastal marten 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. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process. In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 58845 critical habitat designation (i.e., difference between the jeopardy and adverse modification standards) for the coastal marten’s critical habitat. Because the designation of critical habitat for coastal marten is being proposed nearly concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which will result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the coastal marten may also be likely to adversely affect the essential physical or biological features of critical habitat. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat. The proposed critical habitat designation for the coastal marten is made up of five units, four within Oregon and one along the Oregon border extending south into California. All of the units are occupied by the coastal marten. The amount of area being proposed within each unit along with ownership information is summarized in Table 3 (see Proposed Critical Habitat Designation). Federal land makes up 90 percent of the total proposed designation (Table 3). As a result, a large percentage of the designation would be subject to a Federal nexus and section 7 consultation. Approximately 81 percent of the Federal lands are specifically managed by the USFS. A number of existing land use and management plans exist within proposed critical habitat that may provide benefits to coastal marten critical habitat. In particular, USFS lands proposed as critical habitat are managed under the Northwest Forest Plan, which entails a network of latesuccessional reserve land-use allocations to be managed for the retention and development of latesuccessional forest that may benefit habitat for coastal martens. In addition, most proposed BLM lands are included in reservation allocations where programmed timber harvest does not occur. E:\FR\FM\25OCP1.SGM 25OCP1 jspears on DSK121TN23PROD with PROPOSALS1 58846 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules Because the proposed units are occupied, any actions that may affect the species or its habitat would also affect designated critical habitat, and it is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the coastal marten. Therefore, only administrative costs associated with an adverse modification analysis are expected in approximately 90 percent of the proposed critical habitat designation. While this additional analysis will require time and resources by both the Federal action agency and the Service, it is believed that, in most circumstances, these costs would predominantly be administrative in nature and would not be significant. In addition, nearly 48 percent of the proposed designation for coastal marten overlaps with existing critical habitat for the endangered marbled murrelet (Brachyramphus marmoratus), threatened northern spotted owl (Strix occidentalis caurina), threatened Oregon silverspot butterfly (Speyeria zerene hippolyta), and the threatened Pacific coast population of the western snowy plover (Charadrius nivosus nivosus) (IEc 2020, Exhibit A–1, p. 18). Although the western snowy plover’s and Oregon silverspot butterfly’s habitat needs are distinctly different than the coastal marten’s, the overall habitat needs of both the marbled murrelet and northern spotted owl would provide at least some overlap in maintaining appropriate forested habitat. The overlap between the murrelet and northern spotted owl make up the majority (42 percent) of critical habitat overlap with the coastal marten As a result, any consultation requirements for listed species and resulting costs would be at least partially split between each overlapped species with not one species being the sole source of the entire costs. The entities most likely to incur incremental costs are parties to section 7 consultations, including Federal action agencies and, in some cases, third parties, most frequently State agencies or Tribes. Because the proposed critical habitat designation includes other lands not owned by Federal, State, or Tribal governments, incremental costs arising from public perception of the designation have some potential to arise; however, these non-governmental lands make up only a small portion (6.3 percent) of the proposed designation. Further, there do not appear to be significant development pressures in the area. We are not aware of any Tribal, VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 State, or local government regulations or requirements that could be triggered by the designation of critical habitat for the coastal marten and attribute any change in behavior from private entities to be associated with public perception or attitudes rather than any specific requirements. Based on coordination efforts with Tribal partners and State and local agencies, the cost to private entities within these sectors is expected to be relatively minor (administrative costs of less than $10,000 per consultation effort); they, therefore, would not be significant. Our analysis of economic costs estimates that considering adverse modification of coastal marten critical habitat during section 7 consultation will result in incremental costs of approximately $280,000 (2018 dollars) per year. The incremental administrative burden resulting from the designation of critical habitat for the coastal marten will not reach $100 million in a given year based on the estimated annual number of consultations and per-unit consultation costs. The designation is unlikely to trigger additional requirements under State or local regulations and is not expected to have perceptional effects to third parties. We are soliciting data and comments from the public on the DEA discussed above, as well as all aspects of this proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts received during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species. Consideration of National Security Impacts In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for the coastal marten are not owned, managed, or used by the Department of Defense or Department of Homeland Security; therefore, we anticipate no impact on national security or homeland security as a result of the designation. However, during the development of a final designation, we will consider any additional PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 information received through the public comment period on the impacts of the proposed designation on national security or homeland security to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. Consideration of Other Relevant Impacts Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. We consider a number of factors including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements (SHAs), or candidate conservation agreements with assurances (CCAAs), or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of Tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation. When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat. When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation, or in the continuation, strengthening, or encouragement of partnerships. In the case of the coastal marten, the benefits of critical habitat include public awareness of the presence of the coastal marten and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the coastal marten due to protection from destruction or adverse modification of critical habitat. Additionally, continued implementation of an ongoing management or conservation plan that provides equal to or more conservation than a critical habitat designation would reduce the benefits of including that E:\FR\FM\25OCP1.SGM 25OCP1 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules jspears on DSK121TN23PROD with PROPOSALS1 specific area in the critical habitat designation. We evaluate the existence of a management or conservation plan when considering the benefits of inclusion. We consider a variety of factors, including, but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information or changing conditions. After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation. Private or Other Non-Federal Conservation Plans or Agreements and Partnerships, in General We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service. We evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list of factors that we will consider for non-permitted plans or agreements is shown below. These factors are not required elements VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 of plans or agreements, and all items may not apply to every plan or agreement. (i) The degree to which the plan or agreement provides for the conservation of the species or the essential physical or biological features (if present) for the species. (ii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented. (iii) The demonstrated implementation and success of the chosen conservation measures. (iv) The degree to which the record of the plan supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnership. (v) The extent of public participation in the development of the conservation plan. (vi) The degree to which there has been agency review and required determinations (e.g., State regulatory requirements), as necessary and appropriate. (vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) compliance was required. (viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information. Green Diamond Resource Company Lands; Unit 5 Klamath Mountains The Green Diamond Resource Company (GDRC) owns and manages approximately 76,544 ac (30,976 ha) of lands included in the proposed designation for the coastal marten in California. Using the criteria described under Criteria Used To Identify Critical Habitat, we have determined that these lands are essential to the conservation of the species. The GDRC has developed an MOU with the Service (GDRC-Service 2020, entire) and a State Safe Harbor Agreement (SHA) with the California Department of Fish and Wildlife (CDFW 2018, entire) to assist in conservation of the coastal marten and its habitat. Conservation measures identified for the coastal marten and its habitat in the MOU and State SHA include: • Engage in survey, monitoring, reporting, and coordination efforts for coastal marten. • Provide funding and technical support for assisted coastal marten dispersal actions. PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 58847 • Develop and implement a coastal marten training program. • Establish a 127,217 ac ‘‘Marten Special Management Area’’ with a 2,098 ac reserve. • Create slash piles to benefit coastal marten and provide habitat around natal dens. • Implement avoidance and minimization measures for GDRC actions in coastal marten habitat. • Discourage and prevent unauthorized cannabis cultivation and use of pesticides. • Implement adaptive management strategies for conservation of coastal marten and its habitat. • Designate an internal compliance team and MOU Coordinator to oversee coastal marten conservation through the MOU and SHA. • Provide access to GDRC lands to State and Service staff to verify compliance of agreements. • Retain live and snag tree habitat components to benefit coastal marten (Retention Scorecard) and their habitat. In addition, the GDRC has been and continues to be a member of a multiagency management group for conservation of the coastal marten in California and Oregon. The group has developed a conservation strategy and management plan for conserving the coastal marten in California (Slauson et al. 2019a, entire). The conservation strategy was developed to address coastal marten declines and synthesizes current knowledge on the species and identifies current threats, management goals, and outlines numerous conservation actions and information needs. The implementation of the conservation measures outlined in the strategy would assist in conserving the species and its habitat. We have determined that the conservation measures and management actions identified above being undertaken by GDRC will conserve and manage coastal marten habitat including the species’ PBFs and that these actions meet our criteria for exclusion under section 4(b)(2) of the Act. Based on GDRC working with the Service and the CDFW on development and implementation of the MOU and State SHA that benefit coastal marten habitat, involvement and development of the conservation strategy, and its continued partnership with us in coastal marten conservation, we are considering excluding GDRC lands from the final designation. We will continue to work with the GDRC throughout the public comment period and during development of the final designation of critical habitat for the coastal marten and are seeking comment on whether E:\FR\FM\25OCP1.SGM 25OCP1 58848 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules jspears on DSK121TN23PROD with PROPOSALS1 the existing management and conservation efforts of GDRC meet our criteria for exclusion from the final designation under section 4(b)(2) of the Act. Tribal Lands Several Executive Orders, Secretarial Orders, and policies concern working with Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control Tribal lands, emphasize the importance of developing partnerships with Tribal governments, and direct the Service to consult with Tribes on a government-to-government basis. A joint Secretarial Order that applies to both the Service and the National Marine Fisheries Service (NMFS), Secretarial Order 3206, American Indian Tribal Rights, Federal–Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most comprehensive of the various guidance documents related to our relationships with Tribes and Act implementation, and it provides the most detail directly relevant to the designation of critical habitat. In addition to the general direction discussed above, S.O. 3206 explicitly recognizes the right of Tribes to participate fully in the listing process, including designation of critical habitat. The Order also states: ‘‘Critical habitat shall not be designated in such areas unless it is determined essential to conserve a listed species. In designating critical habitat, the Services shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.’’ In light of this instruction, when we undertake a discretionary section 4(b)(2) exclusion analysis, we will always consider exclusions of Tribal lands under section 4(b)(2) of the Act prior to finalizing a designation of critical habitat, and will give great weight to Tribal concerns in analyzing the benefits of exclusion. However, S.O. 3206 does not preclude us from designating Tribal lands or waters as critical habitat, nor does it state that Tribal lands or waters cannot meet the Act’s definition of ‘‘critical habitat.’’ We are directed by the Act to identify areas that meet the definition of ‘‘critical habitat’’ (i.e., areas occupied at the time of listing that contain the essential physical or biological features that may require special management or protection and unoccupied areas that are essential to the conservation of a species), without regard to landownership. While S.O. 3206 VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 provides important direction, it expressly states that it does not modify the Secretaries’ statutory authority. Yurok Tribal Lands; Unit 5 Klamath Mountains Approximately 26,126 ac (10,573 ha) of Yurok Tribal lands are included in the proposed designation of critical habitat for the coastal marten in Unit 5 in California. Using the criteria described under Criteria Used To Identify Critical Habitat, we have determined that these Tribal lands are occupied by the coastal marten and contain the features essential to the conservation of the species. The Yurok Tribe has a demonstrated track record of maintaining its lands for natural resources through implementation of their Yurok Forest Management Plan (FMP) (Yurok 2012, entire) and the Blue Creek Interim Management Plan (BCIMP) (Yurok Tribe and Western Rivers Conservancy 2018, entire). The FMP and BCIMP identify management guidance for specific forest types to enhance and restore healthy, resilient riparian and old growth forests on Yurok Tribal lands. The FMP and BCIMP identify actions that contribute to the conservation of coastal forest habitat important to coastal marten including: • Establishment of the Humboldt Marten Special Management Area (currently 10,906 ac). • Surveys for coastal marten in and around project areas. • Retention and enhancement of suitable reproductive habitat. • Strategic habitat management to improve connectivity. • Population monitoring combined with adaptive management to evaluate management effectiveness and prevent disease and predation. • When appropriate, use of timber harvest, thinning, fuels reduction, and prescribed fire methods that avoid or minimize alteration of dense understory shrubs that are beneficial to coastal marten. • Identification of stand management alternative to restore and enhance shrub cover where it has been lost or reduced. • Maintenance of spatial database of coastal marten distribution. • Nonnative and invasive species control and eradication. • Fire and fuels management (including variable density thinning, shaded fuel breaks, cultural burning, and emergency rehabilitation). • Development, testing, and creation of surrogate structures that meet key life-history needs for resting and denning to increase habitat suitability in the short term. PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 Additionally, we have begun coordination with the Yurok Tribe to assist in identifying additional management actions that may benefit the coastal marten or its habitat. The intent of the discussions is to ultimately develop an MOU with the Tribe to further solidify our partnership with the Tribe in developing and implementing land management practices beneficial to the Tribe and the coastal marten. The current draft MOU identifies habitat management practices, habitat restoration, fuels reduction, and research opportunities that will benefit the coastal marten. The Yurok Tribe has also been and continues to be a member of a multi-agency management group for the conservation of coastal marten in California and Oregon. The group has developed a conservation strategy and management plan for conserving the coastal marten in California (Slauson et al. 2019a, entire). We will continue to work with the Tribe throughout the public comment period and during development of the final designation of critical habitat for the coastal marten to further develop and finalize the MOU and build on our existing partnership in implementing specific conservation measures for the coastal marten. Based on existing conservation and management actions for natural resources by the Yurok Tribe, maintaining and strengthening our working relationship with the Tribe, and preliminary development of the coastal marten MOU with the Tribe, we are considering excluding the Yurok Tribal lands from the final designation. We are seeking comment on whether the Yurok Tribal lands are appropriate for exclusion from the final critical habitat designation to the extent consistent with the requirements of section 4(b)(2) of the Act. Summary of Exclusions Considered Under 4(b)(2) of the Act Based on the information provided by entities whose lands we are considering for exclusion, as well as any additional public comments we receive, we will evaluate whether certain lands in Unit 5 of the proposed critical habitat are appropriate for exclusion from the final designation under section 4(b)(2) of the Act. If the analysis indicates that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then the Secretary may exercise her discretion to exclude the lands from the final designation. We may also consider areas not identified above for exclusion from the final critical habitat designation based on information we E:\FR\FM\25OCP1.SGM 25OCP1 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules may receive during the public comment period. We are considering whether to exclude the following areas under section 4(b)(2) of the Act from the final critical habitat designation for the coastal marten. Table 4 below provides approximate areas (ac, ha) of lands that meet the definition of critical habitat but for which we are considering possible exclusion under section 4(b)(2) of the 58849 Act from the final critical habitat rule. These areas include lands owned and managed by the Green Diamond Resource Company and the Yurok Tribe in California in Unit 5. TABLE 4—AREAS CONSIDERED FOR EXCLUSION BY CRITICAL HABITAT UNIT [Ac (ha)] Areas meeting the definition of critical habitat in ac (Ha) Unit Name 5 ..................... Klamath Mountains ...... Areas considered for possible exclusion in ac (Ha) 1,290,604 (573,058) 76,544 (30,975) 26,126 (10,573) Required Determinations jspears on DSK121TN23PROD with PROPOSALS1 Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (1) Be logically organized; (2) Use the active voice to address readers directly; (3) Use clear language rather than jargon; (4) Be divided into short sections and sentences; and (5) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA 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 VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 Rationale for proposed exclusion Existing Land Management, State Safe Harbor, MOU, Maintaining Partnership. Existing Land Management, Draft MOU, Maintaining Partnership. 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 proposed 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 (SBREFA) of 1996 (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 PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 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 whether 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. Under the RFA, as amended, and as understood in light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies 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 out 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 would be directly regulated if we adopt the proposed critical habitat designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly E:\FR\FM\25OCP1.SGM 25OCP1 58850 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities. In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. jspears on DSK121TN23PROD with PROPOSALS1 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. In our economic analysis, we did not find that this proposed critical habitat designation would significantly affect energy supplies, distribution, or use, because these types of activities are not occurring and not expected to occur in areas being proposed as critical habitat. Therefore, this action is not a 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 finding: (1) This proposed rule would 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 VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 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 nonFederal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments. (2) We do not believe that this rule would significantly or uniquely affect small governments. The lands being proposed for critical habitat designation are owned by cities, Tribes, the State of California or Oregon, and the National Park Service, Bureau of Land Management, or the U.S. Forest Service. None of these government entities fits the definition of a ‘‘small governmental jurisdiction.’’ Therefore, a Small Government Agency Plan is not required. Takings—Executive Order 12630 In accordance with E.O. 12630 (Government Actions and Interference PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the coastal marten in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat 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. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed for the proposed designation of critical habitat for coastal marten, and it concludes that, if adopted, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation. Federalism—Executive Order 13132 In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies. 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 State and local governments, or for anyone else. As a result, the proposed 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 proposed 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 or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and E:\FR\FM\25OCP1.SGM 25OCP1 58851 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they 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) of the Act 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 would 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 proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed areas of designated critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not required. Common name We may not conduct or sponsor and you are 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. The Yurok Tribe has lands identified in Scientific name Where listed * Martes caurina ......... * * U.S.A. (CA (north-western), OR (western)) the proposed designation. We have coordinated with the Tribe in development of the SSA and will continue to work with the Yurok Tribe throughout the process of designating critical habitat for the coastal marten. References Cited A complete list of references cited in this rulemaking is available on the internet at https://www.regulations.gov and upon request from the Arcata Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service’s Species Assessment Team and the Arcata Fish and Wildlife Field Office and Oregon State Fish and Wildlife Service Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 1531– 1544; 4201–4245, unless otherwise noted. 2. Amend § 17.11(h) by revising the entry for ‘‘Marten, Pacific [Coastal DPS]’’ under MAMMALS in the List of Endangered and Threatened Wildlife to read as follows: ■ § 17.11 Endangered and threatened wildlife. * * * (h) * * * Status * * Listing citations and applicable rules MAMMALS jspears on DSK121TN23PROD with PROPOSALS1 * Marten, Pacific [coastal DPS]. * * * 3. In § 17.95, amend paragraph (a) by adding an entry for ‘‘Pacific Marten (Martes caurina), Coastal DPS’’ after the ■ VerDate Sep<11>2014 17:14 Oct 22, 2021 Jkt 256001 * * T * entry for ‘‘Florida Manatee (Trichechus manatus)’’ to read as follows: PO 00000 * * 85 FR 63806, 10/8/2020; 50 17.40(s).4d 50 CFR 17.95(a).CH * § 17.95 * Frm 00038 Fmt 4702 Sfmt 4702 * Critical habitat—fish and wildlife. (a) Mammals. * * * E:\FR\FM\25OCP1.SGM CFR 25OCP1 * 58852 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules jspears on DSK121TN23PROD with PROPOSALS1 Pacific Marten (Martes caurina), Coastal DPS (1) Critical habitat units are depicted for California and Oregon, on the maps below in this entry. (2) Within these areas, the physical or biological features (PBFs) essential to the conservation of the Pacific marten (Coastal DPS) consist of the following components: (i) Habitat that supports a coastal marten home range by providing for breeding, denning, resting, or foraging. This habitat provides cover and shelter to facilitate thermoregulation and reduce predation risk, foraging sources for marten prey, and structures that provide resting and denning sites. To provide cover and support denning, resting, and foraging, coastal martens require a mature forest overstory, dense understory development, and biologically complex structure that contains snags, logs, other decay elements, or other structures that support denning, resting, or marten prey. Stands meeting the conditions for PBF 1 would also function as meeting PBF 2 (facilitating movement within and between coastal marten home ranges). Stands meeting the condition for PBF 1 contain each of the following three components: (A) Mature, conifer-dominated forest overstory. Overstory canopy cover provides protection to coastal martens from aerial and terrestrial predators, as well as shelter from physical elements such as sun or storms. It also is the source of structural features that coastal martens use for denning and resting, and provides suitable marten prey. Suitable overstory conditions vary depending on the productivity of the site as follows: (1) For areas with relatively low productivity (e.g., areas where growing conditions are harsher, such as serpentine sites or coastal shore pine forests, compared to other areas), suitable forest overstory conditions are highly variable. They may contain a sparse conifer overstory, such as in some serpentine areas, or a dense conifer overstory composed mainly of trees smaller than the typical older forest conditions described below in paragraph (2)(i)(B)(2) of this entry (e.g., the dense shore pine overstory found in areas occupied by marten along the Oregon coast). (2) For other areas with higher productivity, martens tend to favor VerDate Sep<11>2014 18:33 Oct 22, 2021 Jkt 256001 forest stands in the old-growth or latemature seral stages. The specific forest composition and structure conditions found in higher productivity areas will vary by plant series and site class. Structural and composition descriptions of old-growth or late-mature seral stages for local plant community series should be used where available. In general these stands exhibit high levels of canopy cover and structural diversity in the form of: (i) A wide range of tree sizes, including trees with large diameter and height; (ii) Deep, dense tree canopies with multiple canopy layers and irregular tree crowns; (iii) High numbers of snags, including large-diameter snags; and (iv) Abundant down wood, including large logs, ideally in a variety of decay stages. (B) Dense, spatially extensive shrub layer. The shrub layer should be greater than 70 percent of the area, comprising mainly shade-tolerant, long-lived, mastproducing species (primarily ericaceous species such as salal, huckleberry, or rhododendron, as well as shrub oaks). An extensive layer of dense shrubs provides protection and cover from coastal marten predators. In addition, ericaceous and mast-producing shrubs provide forage for marten prey. (C) Stands with structural features. Structural features that support denning or resting, such as large down logs, rock piles with interstitial spaces, and large snags or live trees with decay elements or suitable resting structures (e.g., hollows and cavities, forked or broken tops, dead tops, brooms from mistletoe or other tree pathogens, or large platforms including abandoned nests). These features provide cover and thermal protection for kits and denning females, and for all animals when they are resting between foraging bouts. Hence, these features need to be distributed throughout a coastal marten home range. They also tend to be among the largest structures in the stand. Many of these features, such as down logs and snags or live trees with decayed elements, also support coastal marten prey. (ii) Habitat that allows for movement within home ranges among stands that meet PBF 1 or that supports individuals dispersing between home ranges. Habitat within PBF 2 includes: PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 (A) Stands that meet all three conditions of PBF1; (B) Forest stands that meet only the first two components of PBF 1 (mature, conifer-dominated forest overstory and a dense, spatially extensive shrub layer); or (C) Habitats with lesser amounts of shrub, canopy, or forest cover, or lesser amounts of smaller structural features as described in PBF 1, and while not meeting the definition of PBF 1, would still provide forage and cover from predators that would allow a coastal marten to traverse the landscape to areas of higher quality habitat. (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved or hardened areas as a result of development) and the land on which they are located existing within the legal boundaries of the critical habitat units for the species on [EFFECTIVE DATE OF THE FINAL RULE]. Due to the scale on which the critical habitat boundaries are developed, some areas within these legal boundaries may not contain the physical or biological features and therefore are not considered critical habitat. (4) Critical habitat map units. In the critical habitat map units, data layers defining map units were created using ArcGIS Pro 2.5.2 (Environmental Systems Research Institute, Inc. (ESRI)), a Geographic Information Systems (GIS) program. ESRI base maps of world topographic, world imagery, and the program’s world imagery USGS Imagery were used. Base map service was last refreshed April 2020. Critical habitat units were then mapped using North American Datum (NAD) 1983, Albers. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service’s Arcata Fish and Wildlife Office’s internet site at https:// www.fws.gov/arcata, or on https:// www.regulations.gov at Docket No. FWS–R8–ES–2020–0151, and at the field office responsible for this designation. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2. E:\FR\FM\25OCP1.SGM 25OCP1 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules 58853 (5) Note: Index map for California and Oregon follows: VerDate Sep<11>2014 18:33 Oct 22, 2021 Jkt 256001 PO 00000 Frm 00040 Fmt 4702 Sfmt 4725 E:\FR\FM\25OCP1.SGM 25OCP1 EP25OC21.000</GPH> jspears on DSK121TN23PROD with PROPOSALS1 BILLING CODE 4333–15–P Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules jspears on DSK121TN23PROD with PROPOSALS1 (6) Unit 1: Siuslaw Unit, Lincoln and Lane Counties, Oregon. VerDate Sep<11>2014 18:33 Oct 22, 2021 Jkt 256001 (i) General description: Unit 1 consists of 95,218 ac (38,543 ha) and comprises Federal (94,094 ac (37,673 PO 00000 Frm 00041 Fmt 4702 Sfmt 4725 ha)), State (2,124 ac (859 ha)), and less than 1 ac (1 ha) other lands. (ii) Map of Unit 1 follows: E:\FR\FM\25OCP1.SGM 25OCP1 EP25OC21.001</GPH> 58854 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules VerDate Sep<11>2014 18:33 Oct 22, 2021 Jkt 256001 (i) General description: Unit 2 consists of 8,830 ac (3,574 ha) and PO 00000 Frm 00042 Fmt 4702 Sfmt 4725 comprises Federal (8,582 ac (3,472 ha)) and State (249 ac (101 ha)) lands. (ii) Map of Unit 2 follows: E:\FR\FM\25OCP1.SGM 25OCP1 EP25OC21.002</GPH> jspears on DSK121TN23PROD with PROPOSALS1 (7) Unit 2: Siltcoos Unit. Lane and Douglas Counties, Oregon. 58855 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules jspears on DSK121TN23PROD with PROPOSALS1 (8) Unit 3: Coos Bay Unit. Douglas and Coos Counties, Oregon. VerDate Sep<11>2014 18:33 Oct 22, 2021 Jkt 256001 (i) General description: Unit 3 consists of 15,582 ac (6,306 ha) and PO 00000 Frm 00043 Fmt 4702 Sfmt 4725 comprises Federal (14,934 ac (6,044 ha)) and State (648 ac (262 ha)) lands. (ii) Map of Unit 3 follows: E:\FR\FM\25OCP1.SGM 25OCP1 EP25OC21.003</GPH> 58856 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules VerDate Sep<11>2014 18:33 Oct 22, 2021 Jkt 256001 (i) General description: Unit 4 consists of 4,046 ac (1,637 ha) and PO 00000 Frm 00044 Fmt 4702 Sfmt 4725 comprises Federal (1,021 ac (413 ha)) and State (3,025 ac (1,224 ha)) lands. (ii) Map of Unit 4 follows: E:\FR\FM\25OCP1.SGM 25OCP1 EP25OC21.004</GPH> jspears on DSK121TN23PROD with PROPOSALS1 (9) Unit 4: Cape Blanco Unit. Coos and Curry Counties, Oregon. 58857 58858 Federal Register / Vol. 86, No. 203 / Monday, October 25, 2021 / Proposed Rules (10) Unit 5: Klamath Mountains Unit. Coos, Curry, Douglas, and Josephine Counties, Oregon. Del Norte, Humboldt, and Siskiyou Counties, California. * * * * (i) General description: Unit 5 consists of 1,289,627 ac (521,913 ha) and comprises Federal (1,154,197 ac (467,103 ha)), State (19,829 ac (8,024 ha)), Tribal (26,126 ac (10,573 ha)), and private or undefined (89,475 ac (36,210 ha)) lands. (ii) Map of Unit 5 follows: * [FR Doc. 2021–22994 Filed 10–22–21; 8:45 am] BILLING CODE 4333–15–C VerDate Sep<11>2014 18:33 Oct 22, 2021 Jkt 256001 PO 00000 Frm 00045 Fmt 4702 Sfmt 9990 E:\FR\FM\25OCP1.SGM 25OCP1 EP25OC21.005</GPH> jspears on DSK121TN23PROD with PROPOSALS1 Martha Williams, Principal Deputy Director, Exercising the Delegated Authority of the Director, U.S. Fish and Wildlife Service.

Agencies

[Federal Register Volume 86, Number 203 (Monday, October 25, 2021)]
[Proposed Rules]
[Pages 58831-58858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22994]



[[Page 58831]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2020-0151; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE33


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Coastal Distinct Population Segment of the 
Pacific Marten

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose 
critical habitat for the coastal distinct population segment of Pacific 
marten (coastal marten) (Martes caurina), a mammal species from coastal 
California and Oregon, under the Endangered Species Act of 1973, as 
amended (Act). In total, approximately 1,413,305 acres (571,965 
hectares) in northwestern California and southwestern Oregon fall 
within the boundaries of the proposed critical habitat designation. If 
we finalize this rule as proposed, it would extend the Act's 
protections to this entity's critical habitat.

DATES: We will accept comments received or postmarked on or before 
December 27, 2021. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES below) must be received by 11:59 p.m. 
Eastern Time on the closing date. We must receive requests for public 
hearings, in writing, at the address shown in FOR FURTHER INFORMATION 
CONTACT by December 9, 2021.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter the docket number or RIN 
for this rulemaking (presented above in the document headings). For 
best results, do not copy and paste either number; instead, type the 
docket number or RIN into the Search box using hyphens. Then, click on 
the Search button. On the resulting page, in the Search panel on the 
left side of the screen, under the Document Type heading, check the 
Proposed Rule box to locate this document. You may submit a comment by 
clicking on ``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R8-ES-2020-0151; U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: The coordinates from which 
the critical habitat maps are generated will be included in the 
decisional record materials for this rulemaking and are available at 
https://www.regulations.gov under Docket No. FWS-R8-ES-2020-0151, and at 
the Arcata Ecological Services Field Office at https://www.fws.gov/arcata (see FOR FURTHER INFORMATION CONTACT). Any additional tools or 
supporting information that we may develop for this critical habitat 
designation will also be available at the Service website and field 
office set out above, and may also be included in the preamble of this 
rule at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jenny Ericson, Acting Field 
Supervisor, U.S. Fish and Wildlife Service, Arcata Ecological Services 
Field Office, 1655 Heindon Road, Arcata, California 95521, or by 
telephone 707-822-7201. If you use a telecommunications device for the 
deaf (TDD), call the Federal Relay Service (FRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Scope of this rule. The information presented in this proposed rule 
pertains only to the coastal distinct population segment (DPS) of 
Pacific marten (coastal marten). Any reference to the ``species'' 
within this document only applies to the DPS and not to the Pacific 
marten as a whole unless specifically expressed. A complete description 
of the DPS and area associated with the DPS is contained in the 12-
month finding and the final listing rule for the coastal marten 
published in the Federal Register (80 FR 18742, April 7, 2015, and 85 
FR 63806, October 8, 2020).
    Why we need to publish a rule. Under the Act, to the maximum extent 
prudent and determinable, we must designate critical habitat for any 
species that we determine to be an endangered or threatened species. 
Designations and revisions of critical habitat can only be completed by 
issuing a rule. On October 8, 2020, we finalized listing the coastal 
marten as a threatened species in the Federal Register (85 FR 63806).
    What this document does. This is a proposed rule to designate 
critical habitat for the coastal marten in 5 units in the States of 
Oregon and California totaling approximately 1,413,305 acres (ac) 
(571,965 hectares (ha)). In this proposed designation, we have 
identified a total of approximately 76,544 ac (30,975 ha) of private 
land and 26,126 ac (10,573 ha) of Tribal land that we are considering 
for exclusion from the final designation (see Consideration of Impacts 
Under Section 4(b)(2) of the Act).
    The basis for our action. Section 4(a)(3) of the Act requires the 
Secretary of the Interior (Secretary) to designate critical habitat 
concurrent with listing to the maximum extent prudent and determinable. 
Section 3(5)(A) of the Act defines critical habitat as (i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed, on which are found those physical or biological features 
(I) essential to the conservation of the species and (II) which may 
require special management considerations or protections; and (ii) 
specific areas outside the geographical area occupied by the species at 
the time it is listed, upon a determination by the Secretary that such 
areas are essential for the conservation of the species. Section 
4(b)(2) of the Act states that the Secretary must make the designation 
on the basis of the best scientific data available and after taking 
into consideration the economic impact, the impact on national 
security, and any other relevant impacts of specifying any particular 
area as critical habitat.
    Draft economic analysis. Section 4(b)(2) of the Act states that the 
Secretary shall designate critical habitat, and make revisions thereto, 
on the basis of the best scientific data available and after taking 
into consideration the economic impact. In order to consider the 
economic impacts of critical habitat for the coastal marten, we drafted 
information pertaining to the potential incremental economic impacts 
for this proposed critical habitat designation. The information we used 
in determining the economic impacts of the proposed critical habitat is 
summarized in this proposed rule (see Consideration of Economic 
Impacts) and is available at https://www.regulations.gov at Docket No. 
FWS-R8-ES-2020-0151 and at the Arcata Fish and Wildlife Office at 
https://www.fws.gov/arcata (see FOR FURTHER INFORMATION CONTACT). We are 
soliciting public comments on the economic information provided and any 
other potential economic impact of the proposed designation. We will 
continue to reevaluate the potential economic

[[Page 58832]]

impacts between this proposal and our final designation.
    Peer review. In accordance with our peer review policy published in 
the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we sought the expert opinions of 8 
appropriate and independent knowledgeable individuals on our Species 
Status Assessment (SSA) for the coastal marten (Service 2019a, entire). 
We received responses from two peer reviewers and two technical 
reviewers relating to the habitat and habitat needs of coastal marten, 
which informed the development of this proposed designation. We 
reviewed the comments we received for substantive issues and new 
information regarding habitat needs for the coastal marten. The 
specialists generally concurred with our description of habitat needs 
for the coastal marten and provided additional information, 
clarifications, and suggestions to improve the description. We used the 
SSA and specialists' comments on the SSA to inform our description and 
selection of areas we are proposing as critical habitat for the coastal 
marten. The peer and technical reviewers' comments are available at 
https://www.regulations.gov at Docket No. FWS-R8-ES-2018-0076, which was 
the docket for the listing rule (85 FR 63806, October 8, 2020). The 
purpose of peer review is to ensure that our critical habitat 
designations are based on scientifically sound data, assumptions, and 
analyses. The peer reviewers have expertise in the biology, habitat, 
and threats to the species.
    We will solicit additional peer review of this proposed rule and 
respond to any peer review comments on the proposed designation in the 
final rule as appropriate.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American Tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) The coastal marten's biology and range; habitat requirements 
for feeding, breeding, and sheltering; and the locations of any 
additional populations.
    (2) Specific information on:
    (a) The amount and distribution of coastal marten habitat;
    (b) What areas that were occupied at the time of listing and that 
contain the physical or biological features essential to the 
conservation of the coastal marten should be included in the 
designation and why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change;
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species. We particularly seek comments:
    (i) Regarding whether occupied areas are adequate for the 
conservation of the species; and
    (ii) Providing specific information regarding whether or not 
unoccupied areas would, with reasonable certainty, contribute to the 
conservation of the species and contain at least one physical or 
biological feature essential to the conservation of the species.
    (e) Land ownership information, including land conservation status 
or management status. We particularly seek information on Tribal lands. 
Our spatial data information did not show any other Tribal lands within 
proposed critical habitat units beyond the ownership acreages listed 
below.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (5) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts.
    (6) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. In particular, provide information for 
areas with management plans or other mechanisms in place that identify 
measures to protect and conserve the coastal marten or its habitat, 
such as the areas managed by Green Diamond Resource Company and the 
Yurok Tribe.
    (7) If you request exclusion from the designation of critical 
habitat of any areas under section 4(b)(2) of the Act, the Secretary 
will consider credible information regarding the existence of a 
meaningful economic or other relevant impact supporting a benefit of 
exclusion for that particular area, as provided in 50 CFR 
17.90(c)(2)(i).
    (8) As provided in our regulations, we are to identify in a 
proposed designation of critical habitat those areas that we are 
considering for exclusion. In this proposed rule under the section 
entitled Exclusions, we have indicated that we are considering areas 
managed by the Green Diamond Resource Company and by the Yurok Tribe 
for possible exclusion and explain why. Please provide information 
regarding Green Diamond Resource Company and the Yurok Tribe lands 
considered for exclusion.
    (9) Information on the projected and reasonably likely impacts of 
climate change on the coastal marten's habitat.
    (10) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (11) Information relating to species distribution or habitat 
modeling which is currently underway.
    Please include sufficient documentation with your submission (such 
as scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you present.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support our determination, as section 4(b)(2) 
of the Act directs that critical habitat designations must be made ``on 
the basis of the best scientific data available and after taking into 
consideration the economic impact, the impact on national security, and 
any other relevant impact.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so.

[[Page 58833]]

We will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov (see FOR 
FURTHER INFORMATION CONTACT).
    Because we will consider all comments and information we receive 
during the comment period, our final determinations may differ from 
this proposal. Based on the new information we receive (and any 
comments on that new information), our final critical habitat 
designation may not include all areas proposed, may include some 
additional areas that meet the definition of critical habitat, and may 
exclude some areas if we find the benefits of exclusion outweigh the 
benefits of inclusion.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. For the immediate future, we will provide these public 
hearings using webinars that will be announced on the Service's 
website, in addition to the Federal Register. The use of these virtual 
public hearings is consistent with our regulation at 50 CFR 
424.16(c)(3).

Previous Federal Actions

    On October 9, 2018, we proposed the coastal marten (83 FR 50574) as 
a threatened species under the Act and published our proposed rule in 
the Federal Register. On October 8, 2020, we published our final 
determination in the Federal Register (85 FR 63806), and added the 
coastal marten as threatened to the List of Endangered and Threatened 
Wildlife at 50 CFR 17.11(h). All other previous Federal actions are 
described in the proposed rule to list the coastal marten as a 
threatened species under the Act (83 FR 50574, October 9, 2018). Please 
see that document for actions leading to this proposed designation of 
critical habitat.
    In the final listing rule published in the Federal Register on 
October 8, 2020 (85 FR 63806), we erroneously listed the range of the 
coastal marten in Oregon as ``OR (south-western)'' in the List at 50 
CFR 17.11(h). We are now proposing to correct the actual range of the 
DPS, which includes the entire coastal region of Oregon, and the change 
would appear in the List of Endangered and Threatened Wildlife as ``OR 
(western)'' (see Proposed Regulation Promulgation).

Background

Supporting Documents

    A species status assessment team prepared a SSA report for the 
coastal marten (Service 2019a, entire). The SSA team was composed of 
Service biologists, in consultation with other species experts. The SSA 
report represents a compilation of the best scientific and commercial 
data available concerning the status of the species, including the 
impacts of past, present, and future factors (both negative and 
beneficial) affecting the species, as well as habitat needs for the 
species, which informed this critical habitat proposal. Information 
regarding peer review of the SSA is in our October 8, 2020, final 
listing determination (85 FR 63806). We also conducted an economic 
analysis on the incremental impacts of the proposed critical habitat 
designation (see Service 2019b, entire; IEc 2020, entire).
    Although published too late to be included in our final listing 
determination (85 FR 63806, October 8, 2020), we are aware of research 
indicating that martens in coastal Oregon are of the Humboldt 
subspecies (M. c. humboldtensis), as are the martens in coastal 
northern California, and not the caurina subspecies (M. c. caurina), as 
previously classified (Schwartz et al. 2020, p. 179). While this 
research may result in a name change to the subspecific taxon of 
martens in coastal Oregon, it does not change our listable entity or 
DPS analysis. In essence, our coastal DPS of the Pacific marten remains 
valid, but in its entirety is now synonymous with the Humboldt marten 
subspecies. The change in nomenclature also does not affect our 
analysis of the status of and threats to the coastal marten, nor our 
analysis of critical habitat.
    We evaluated all available data, published and unpublished, for 
Pacific martens within the coastal DPS. Where information gaps exist, 
we rely on Pacific marten information from outside the DPS, and 
occasionally from American martens (Martes americana) elsewhere in 
North America. We use the general term ``marten'' when speaking about 
martens in general or applying information gleaned from martens across 
their range in North America. We reserve the term ``coastal marten'' 
for when we are referring exclusively to martens within the coastal 
DPS.
    We are aware of species distribution modeling that is underway but 
was not available for inclusion in the analysis for this proposed rule. 
If this new information becomes available, it will be considered in the 
final determination of critical habitat.

Species Information

    The marten is a medium-sized carnivore related to weasels (Mustela 
sp.), minks (Neovison sp.), otters (Lontra sp.), and fishers (Pekania 
sp.). Martens have brown fur with distinctive coloration on the throat 
and upper chest that varies from orange to yellow to cream. They have 
proportionally large and distinctly triangular ears and a bushy long 
tail. Martens are territorial, and dominant males maintain home ranges 
that encompass one or more female's home ranges. Martens have a 
generalist diet dominated by small mammals, but birds, insects, and 
fruits are also seasonally important. Martens across North America 
generally select older forest stands that are structurally complex 
(e.g., late-successional, old-growth, large-conifer, mature, late-
seral). These forests generally have a mixture of old and large trees, 
multiple canopy layers, snags and other decay elements, dense 
understory, and have a biologically complex structure and composition. 
A thorough review and assessment of the taxonomy, life history, and 
ecology, including limiting factors and species resource needs of the 
coastal marten is presented in the SSA report (Service 2019a, entire) 
(available at https://www.fws.gov/arcata/ and at https://www.regulations.gov under Docket No. FWS-R8-ES-2018-0076).

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.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as: An area that may generally be delineated 
around species' occurrences, as determined by the

[[Page 58834]]

Secretary (i.e., range). Such areas may include those areas used 
throughout all or part of the species' 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).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and translocation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Designation also does not allow the government 
or public to access private lands, nor does designation require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the Federal agency would be required to consult 
with the Service under section 7(a)(2) of the Act. However, even if the 
Service were to conclude that the proposed activity would result in 
destruction or adverse modification of the critical habitat, the 
Federal action agency and the landowner are not required to abandon the 
proposed activity, or to restore or recover the species; instead, they 
must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation 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 and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features that occur in specific occupied areas, 
we focus on the specific features that are essential to support the 
life-history needs of the species, including but not limited to, water 
characteristics, soil type, geological features, prey, vegetation, 
symbiotic species, or other features. A feature may be a single habitat 
characteristic, or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. When designating critical habitat, the Secretary will first 
evaluate areas occupied by the species. The Secretary will only 
consider unoccupied areas to be essential where a critical habitat 
designation limited to geographical areas occupied by the species would 
be inadequate to ensure the conservation of the species. In addition, 
for an unoccupied area to be considered essential, the Secretary must 
determine that there is a reasonable certainty both that the area will 
contribute to the conservation of the species and that the area 
contains one or more of those physical or biological features essential 
to the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species, the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. 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) the prohibitions found in section 9 of the Act. 
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.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations

[[Page 58835]]

(50 CFR 424.12), require that, to the maximum extent prudent and 
determinable, the Secretary shall designate critical habitat at the 
time the species is determined to be an endangered or threatened 
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary 
may, but is not required to, determine that a designation would not be 
prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    As discussed in the final listing rule (85 FR 63806, October 8, 
2020), there is currently no imminent threat of take attributed to 
collection or vandalism identified under Factor B (16 U.S.C. 
1533(a)(1)(B)) for this species, and identification and mapping of 
critical habitat is not expected to initiate any such threat. In our 
SSA and final listing rule for the coastal marten, we determined that 
the present or threatened destruction, modification, or curtailment of 
habitat or range is a threat to the coastal marten and that those 
threats in some way can be addressed by section 7(a)(2) consultation 
measures. The species occurs wholly in the jurisdiction of the United 
States, and we are able to identify areas that meet the definition of 
critical habitat. Therefore, because none of the circumstances 
enumerated in our regulations at 50 CFR 424.12(a)(1) have been met and 
because there are no other circumstances the Secretary has identified 
for which this designation of critical habitat would be not prudent, we 
have determined that the designation of critical habitat is prudent for 
the coastal marten.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the 
coastal marten is determinable. Our regulations at 50 CFR 424.12(a)(2) 
state that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    In our proposed listing rule (83 FR 50574, October 9, 2018), we 
stated that critical habitat was not determinable because the 
assessment of the economic impacts of the designation were still 
ongoing and we were in the process of acquiring the complex information 
needed to perform that assessment. We have now obtained that 
information and completed an economic analysis of the proposed critical 
habitat. In addition, we reviewed the available information pertaining 
to the biological needs of the species and habitat characteristics 
where these species are located. This and other information represent 
the best scientific data available and led us to conclude that the 
designation of critical habitat is determinable for the coastal marten.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and that 
may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, alkali soil 
for seed germination, protective cover for migration or predator 
avoidance, or susceptibility to flooding or fire that maintains 
necessary early-successional habitat characteristics. Biological 
features might include prey species, forage grasses, specific kinds or 
ages of trees for roosting or nesting, symbiotic fungi, or a particular 
level of nonnative species consistent with conservation needs of the 
listed species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic essential 
to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, the Service may consider an appropriate quality, 
quantity, and spatial and temporal arrangement of habitat 
characteristics in the context of the life-history needs, condition, 
and status of the species. These characteristics include but are not 
limited to space for individual and population growth and for normal 
behavior; food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, or rearing (or development) of offspring; and habitats 
that are protected from disturbance.
    Details on habitat characteristics for the Pacific marten can be 
found in the SSA (Service 2019a, pp. 24-35) and Slauson et al. (2019a, 
pp. 47-63). We summarize below the more important habitat 
characteristics, particularly those that support the description of 
physical and biological features essential to the conservation of the 
coastal marten DPS. We also describe habitat features relative to the 
scale at which coastal martens use these features, allowing us to more 
logically organize the physical and biological features. Greater detail 
can be found elsewhere (Slauson et al. 2019a, pp. 47-59; Service 2019a, 
pp. 24-34), but we summarize these scales as follows: At the site 
scale, coastal martens look for structures and surrounding features 
that accommodate activities such as denning and resting (see Cover or 
Shelter). At the stand scale, coastal martens select forest stands with 
the structural features that

[[Page 58836]]

provide one or more life-history requirements (e.g., features that 
support marten prey populations, allow prey to be vulnerable to 
martens, provide structures for denning and resting, and provide 
cover). At the home range scale, coastal martens position their home 
ranges to include enough high-quality habitat to provide for life-
history needs (e.g., foraging, reproduction, and cover) and access to 
mates, while avoiding other coastal martens of the same sex, as well as 
avoiding competitors and predators. The distribution of suitable 
habitat at the landscape scale influences coastal marten dispersal, 
location of coastal marten home ranges, and population density. Coastal 
marten dispersal across the landscape allows for gene flow and 
maintains adjacent populations (or metapopulation structure where it 
exists); dispersing individuals select suitable portions of the 
landscape that are unoccupied by individuals of the same sex to 
establish home ranges (Slauson et al. 2019a, p. 48).

Space for Individual and Population Growth and for Normal Behavior

    Coastal martens are solitary animals except during mating and when 
females are raising young. They establish home ranges in areas that 
provide enough habitat to support their life-history needs (Table 1), 
allow access to mates, and avoid individuals of the same sex (Slauson 
et al. 2019a, pp. 47-48). Coastal marten home ranges typically include 
a high proportion (greater than or equal to 70 percent) of older forest 
habitat, and both males and females appear to spend a majority of their 
time in this habitat (Service 2019, p. 30). The older forest habitats 
used by coastal martens typically have large amounts of the features 
necessary for cover, foraging, resting, and denning (see descriptions 
of specific features under the headings immediately below), such as 
large trees or snags with decay elements, down wood, and dense 
ericaceous shrub understories.

                         Table 1--Life History and Resource Needs of the Coastal Marten
----------------------------------------------------------------------------------------------------------------
                                                       Resources and/or circumstances needed for individuals to
                     Life stage                                        complete each life stage
----------------------------------------------------------------------------------------------------------------
Kit (birth to dispersal, ~6 months).................   Female provides food, thermal source, and
                                                       protection from predators. (Markley and Bassett 1942, pp.
                                                       606-607).
                                                       Den sites are enclosed areas to shelter from
                                                       weather and predators and are most often large diameter
                                                       trees (live or dead) with cavities, but also include
                                                       hollow logs, crevices under rocks, log piles, and
                                                       squirrel nests. (Slauson and Zielinski 2009, p. 40;
                                                       Thompson et al. 2012, pp. 223-224; Moriarty 2017a, pp. 82-
                                                       88).
Juvenile and Adults 2+ years........................   Dispersal habitat is an area that supports
                                                       movement from natal area to a location where home range
                                                       can be established. (Chapin et al. 1998, pp. 1334-1336;
                                                       Johnson et al. 2009, p. 3365).
                                                       Resting sites include cavities, brooms, hollow
                                                       logs, large limbs, rock crevices, and debris piles and
                                                       are used to conserve energy and avoid predators. (Taylor
                                                       and Buskirk 1994, pp. 253-255; Shumacher 1999, pp. 26-58;
                                                       Slauson and Zielinski 2009, pp. 39-40; 223-224; Thompson
                                                       et al. 2012, pp. 223-224; Early et al. 2017, entire).
                                                       Food consists primarily of squirrels and
                                                       chipmunks, birds, berries and insects seasonally.
                                                       (Slauson and Zielinski 2017, entire; Slauson and
                                                       Zielinski 2019, entire; Eriksson et al. 2019, entire).
                                                       Understory consists of dense shrub layer and
                                                       decayed wood structures providing prey habitat. Shrub
                                                       layer also provides protection from predators. (Andruskiw
                                                       et al. 2008, pp. 2275-2277; Slauson and Zielinski 2009,
                                                       pp. 39-42; Eriksson 2016, pp. 19-23).
                                                       Forest canopy cover provides protection from
                                                       aerial and terrestrial predators. Unfragmented habitat
                                                       excludes bobcats, the primary predator of coastal marten,
                                                       which are found in more fragmented landscapes (Slauson
                                                       and Zielinski 2001, entire; Powell et al. 2003, entire;
                                                       Linnell et al. 2018, p. 10; Slauson et al., in prep).
                                                       Home range is habitat that provides an adequate
                                                       mix of resting and foraging habitat and overlap with
                                                       opposite sex individuals to provide breeding season
                                                       encounters. (Ellis 1998 pp. 35-41; Bull and Heater 2001,
                                                       p. 1; Self and Kerns 2001, p. 5; Slauson 2003, pp. 49-54;
                                                       Moriarty et al. 2017b, pp. 684-686; Linnell et al. 2018,
                                                       p. 10; Slauson et al. 2019a, entire).
----------------------------------------------------------------------------------------------------------------

    Martens occupying shore pine (Pinus contorta spp. contorta) habitat 
in coastal Oregon have the smallest home ranges recorded in North 
America, with average sizes of 0.32 square miles (mi\2\) (0.84 square 
kilometers (km\2\)) and 1.18 mi\2\ (3.06 km\2\) for females and males, 
respectively (Moriarty et al. 2017b, p. 685). Limited data from martens 
in northern California (3 adult males) show home range sizes from 1.2 
to 1.5 mi\2\ (3 to 4 km\2\), which is similar to home range sizes of 
Pacific martens in the Sierra Nevada Range elsewhere in California 
(Slauson et al. 2019a, p. 56).
    Dispersal is the means by which marten populations maintain and 
expand their distribution and population size. Successful dispersal 
requires functional connections between habitat patches capable of 
supporting reproduction across the landscape. Hence, individual martens 
disperse by selecting portions of the landscape that facilitate 
movement and searching for an area in which to select a home range that 
does not overlap with same-sex individuals. Where landscapes are 
heavily disturbed through intensive logging, juvenile dispersal may be 
especially costly, as evidenced by lower survival and poorer body 
condition of martens dispersing through regenerating vs uncut 
landscapes (Johnson et al. 2009, pp. 3364-3366). Little else is known 
about what constitutes dispersal habitat for martens, but the 
combination of reduced foraging efficiency and increased predation risk 
in predominantly clearcut landscapes may strongly influence dispersal 
dynamics of martens. (Service 2019a, pp. 22, 33, 58).

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    Martens are dietary generalists. Small mammals dominate their diet 
year round, with some mammal species varying by season. Birds, insects, 
and fruits are also seasonally important. Habitat characteristics 
associated with marten prey are important to provide a food source for 
martens. Many of the small mammal species that martens prey on reach 
their highest densities in forest stands with mature and late-
successional structural features; in these stands, the food resources 
used by marten prey species, such as conifer seeds and truffles, are 
most abundant. In addition, other features associated with increased 
densities or abundances of marten prey species include increased 
density and complexity of ericaceous shrub layers, increased amounts of 
coarse woody debris, and density of large snags. Structural complexity 
on the forest floor improves predation success for martens. In the 
shore pine forest community of the central coastal Oregon population, 
areas with an

[[Page 58837]]

ericaceous understory had a significantly higher relative abundance of 
marten prey species, and had a significantly more diverse assemblage of 
prey species compared to nearby interior forests (Eriksson 2016, p. 
16). Many of the bird species found in marten diets are also associated 
with shrub understories, and these birds feed on the fruits of 
ericaceous shrub species (Service 2019a, pp. 22-24; Slauson et al. 
2019a, pp. 33-36).

Cover or Shelter

    Bobcats (Lynx rufus) and other felids are the primary predators 
documented for coastal martens (Slauson et al. 2014, p. 2; Slauson et 
al. 2019a, p. 40). Other large-bodied mammalian (e.g., coyotes (Canis 
latrans)) and avian (e.g., raptors and owls) predators co-occur with 
and prey upon martens across North America (Clark et al. 1987, p. 4; 
Buskirk and Ruggiero 1994, p. 28). Avoiding these predators has shaped 
marten behavior and likely influences their selection of highly complex 
forest structure for cover and shelter while avoiding areas lacking 
overhead or escape cover that are more typically occupied by generalist 
predators such as bobcats and coyotes (Slauson et al. 2019a, pp. 38-
40). Cover and shelter also provide protection from the physical 
elements and allow martens to maintain their body temperature 
(thermoregulation).
    Martens seek out cover and shelter at several scales. At the site 
scale, they look for structures and surrounding features that 
accommodate denning and resting. Denning sites are used by females for 
birthing and raising their kits (see Sites for Breeding, Reproduction, 
or Rearing (or Development) of Offspring). Resting sites are used by 
both sexes on a daily basis, and martens seek them out between foraging 
bouts to provide thermoregulatory benefits and protection from 
predators (Taylor and Buskirk 1994, p. 255; Slauson et al. 2019a, p. 
48). Martens need many resting structures distributed across their home 
range to meet seasonal changes in thermoregulatory needs. Martens 
primarily use large-diameter live trees, snags, and down logs, which 
are typically the largest available structures in the area. Within 
these structures, martens commonly rest either in cavities, formations 
caused by forest pathogens such as dwarf mistletoe (Arceuthobium spp.), 
or on platforms such as broken-top snags or large live branches. 
Cavities may become more important during the winter when conditions 
are wetter and colder. Less-frequented but still important resting 
structures include large slash piles with large-diameter logs, natural 
rock piles, and shrub clumps (Slauson et al. 2019a, pp. 48-50). In less 
productive shore pine communities in coastal Oregon, where large down 
wood and large standing trees and snags are not as common, martens have 
been most commonly found resting in squirrel nests, but also use bare 
branches and hollows at the base of overturned trees (Service 2019a, p. 
25).
    At larger scales (stand, home range, and landscape), martens need 
sufficient habitat, such as overhead and escape cover, to minimize 
their exposure to predators as they move through their home range or 
disperse across the landscape. Martens tend to avoid forest openings 
and landscapes with large areas of forest openings. An analysis of 
martens across North America found that individual home ranges 
typically contain a large proportion (greater than or equal to 70 
percent) of suitable habitat; furthermore, marten density declines when 
the area of suitable habitat across the landscape is reduced to less 
than 70 percent as a result of wildfire, forest management, or other 
stand-replacing disturbance (Thompson et al. 2012, pp. 209, 217, 228).
    Within the coastal marten DPS, on sites with highly productive soil 
conditions, martens select old-growth and late-mature stands dominated 
by Douglas-fir overstories; these stands have dense (greater than 70 
percent cover) shrub layers that are spatially extensive and dominated 
by ericaceous species, including but not limited to evergreen 
huckleberry (Vaccinium ovatum), salal (Gaultheria shallon), and 
Rhododendron sp. (Slauson et al. 2019a, p. 51). On less productive 
sites, (e.g., serpentine soils and coastal shore pine communities), the 
amount of overstory cover may be more variable, but the dense 
understory characteristics remain similar to productive sites (Slauson 
et al. 2019a, pp. 51-53). Martens favor shrub communities that comprise 
shade-tolerant, long-lived, mast-producing species that maintain site 
dominance, rather than early-seral shrub communities that are dominant 
only for short periods after a disturbance (e.g., Ceanothus sp.) 
(Slauson et al. 2019a, p. 9).
    Occupying home ranges with large amounts of overhead cover provided 
by shrub or forest canopy is thought to reduce marten exposure to 
predators. In addition, occupying landscapes with similarly large 
amounts of mature or old forest cover with complex understory minimizes 
their distributional overlap with generalist predators that are 
typically associated with younger forests or more open habitats 
(Slauson et al. 2019a, p. 40). Mature and old-forest characteristics 
differ across the DPS depending on the site and plant association. Old-
forest characteristics of example plant series are provided in Table 2; 
however, old-forest conditions in other plant series within critical 
habitat units may also provide sufficient habitat.

 Table 2--Characteristics of Old-Growth Stands in a Sample of Different
                 Plant Series That Occur Within the DPS
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Stand feature........  Douglas-fir on   Douglas-fir      Tanoak plant
                        western          plant            series.\b\
                        hemlock          series.\b\       Mean old-
                        sites.\a\        Mean old-        growth values.
                        Minimum old-     growth values.
                        growth values.
Live trees...........  >=2 species.     Wide range of    Wide range of
                        Wide range of    size classes:    size classes.
                        ages and         Softwood trees   Softwood trees
                        sizes. Douglas-  8/ac 30- to      8/ac 30- to
                        fir >=8/ac >32-  39.9-in          39.9-in
                        in diameter      diameter (>=20/  diameter (>=20/
                        (>=20/ha >81     ha 76 to 101.5   ha 76 to 101.5
                        cm) or >200      cm), and 9/ac    cm), and 2/ac
                        years old.       >40'' diameter   >40'' diameter
                                         (22/ha >101.5    (5/ha >101.5
                                         cm).             cm).
Canopy...............  deep, multi-
                        layered canopy.
Snags................  Conifers >=4/ac  2.4/ac >20''     1.6/ac >20''
                        >20'' diameter   diameter (5.9/   diameter (4.0/
                        (10/ha >51 cm)   ha >51 cm) and   ha >51 cm) and
                        and >15 ft       >50 ft (4.5 m)   >50 ft (4.5 m)
                        (4.5 m) tall.    tall.            tall.

[[Page 58838]]

 
Logs.................  >=15 tons/ac     24.2 tons/ac     23.8 tons/ac
                        (34 metric       (54.5 metric     (53.5 metric
                        tons/ha)         tons/ha) of      tons/ha) of
                        including 4      logs >10 in      logs >10 in
                        pieces/ac        (25 cm)          (25 cm)
                        >=24''           diameter and     diameter and
                        diameter (10/    >1 ft (0.3 m)    >1 ft (0.3 m)
                        ha >= 61 cm)     long. 6.9 logs/  long. 6.5 logs/
                        and >50 ft (15   ac (17.0 logs/   ac (16.1 logs/
                        m) long.         ha) >20 in (51   ha) >20 in (51
                                         cm) and <30 in   cm) and <30 in
                                         (76 cm)          (76 cm)
                                         diameter; 3.8    diameter; 3.9
                                         logs/ac (9.4     logs/ac (9.6
                                         logs/ha) >30     logs/ha) >30
                                         in (76 cm)       in (76 cm)
                                         diameter.        diameter.
------------------------------------------------------------------------
\a\ Minimum old-growth definitions found in Franklin et al. (1986, p.
  4).
\b\ Mean old-growth definitions found in Jimerson et al. (1996, pp. E-16
  to E-23).

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    Females give birth to kits in forest structures called natal dens. 
Subsequent structures used to raise young kits are called maternal 
dens. The most common den structures used by martens across North 
America are cavities in large-diameter live and dead trees, and known 
coastal marten dens also correspond to this pattern. Trees containing 
marten den sites are structurally complex, with large limbs, broken 
tops, hollow bases, complex crowns, or multiple cavities. Martens 
appear to be more selective of habitat conditions at den sites than at 
rest sites; this tendency likely reflects a need for foraging habitat 
to be within close proximity of a den site, allowing females to 
minimize energy expenditure for foraging and minimize time spent away 
from kits (Service 2019a, pp. 26-27; Slauson et al. 2019a, p. 50).

Habitats Protected From Disturbance

    As noted above in the Cover or Shelter section, mature and old 
forests are important to martens, and marten density declines when 
landscape amounts are reduced to less than 70 percent of the area, 
regardless of the disturbance type (Thompson et al. 2012, pp. 209, 217, 
228). Marten habitat is lost or degraded through natural disturbances 
and human-induced changes. Such disturbances can remove habitat 
components necessary for marten fitness (e.g., canopy cover, denning 
and resting structures, habitat for marten prey). In California, 
habitat disturbances that remove escape cover and create extensive 
openings are associated with increased predation risk by increasing the 
abundance of habitat generalist carnivores that prey on martens 
(Slauson et al. 2019a, pp. 40, 57).
    Forest management is the human disturbance that has the greatest 
effect on marten habitat in terms of scale and severity. The loss of 
marten habitat as a result of timber harvest is considered the likely 
cause of the continued low population levels in California since the 
State banned trapping in 1946. Vegetation management, such as timber 
harvest, thinning, fuels reduction, and non-forest habitat restoration 
can result in temporary or permanent loss, degradation, or 
fragmentation of suitable coastal marten habitat (Service 2019a, p. 
55). Human development also results in permanent habitat conversion, 
but is generally limited in scope to the area around established 
communities and existing developments.
    Within the DPS, wildfire is the natural disturbance that affects by 
far the greatest area of habitat. Fires are a necessary disturbance 
feature as they create or facilitate the development of structural 
features used by martens, such as snags, hollow trees, and down logs. 
However, fires can also remove large areas of suitable marten habitat 
that can take many decades to recover (Service 2019a, pp. 48-51). Other 
natural disturbances that affect marten habitat to a much lesser degree 
than wildfire include windstorms, landslides, and forest insects and 
pathogens. These events generally degrade or remove habitat in 
localized areas. Similar to wildfire, however, they are also important 
processes for developing forest structures used by coastal martens, 
such as broken top trees, cavities, and down wood.

Summary of Physical or Biological Features for the Coastal Marten

    We derive the specific physical or biological features (PBFs) 
essential to the conservation of the coastal marten from studies of 
this species' habitat, ecology, and life history as described in the 
SSA report for the coastal marten (Service 2019a, entire). We have 
determined that the following PBFs are essential to the conservation of 
the coastal marten:
    Physical or Biological Feature 1--Habitat that supports a coastal 
marten home range by providing for breeding, denning, resting, or 
foraging. This habitat provides cover and shelter to facilitate 
thermoregulation and reduce predation risk, foraging sources for marten 
prey, and structures that provide resting and denning sites. To provide 
cover and support denning, resting, and foraging, coastal martens 
require a mature forest overstory, dense understory development, and 
biologically complex structure that contains snags, logs, other decay 
elements, or other structures that support denning, resting, or marten 
prey. Stands meeting the conditions for PBF 1 would also function as 
meeting PBF 2 (facilitating movement within and between coastal marten 
home ranges). Stands meeting the condition for PBF 1 contain each of 
the following three components:
    (1) Mature, conifer-dominated forest overstory. Overstory canopy 
cover provides protection to coastal martens from aerial and 
terrestrial predators, as well as shelter from physical elements such 
as sun or storms. It also is the source of structural features that 
coastal martens use for denning and resting, and provides suitable 
coastal marten prey. Suitable overstory conditions vary depending on 
the productivity of the site as follows:
    a. For areas with relatively low productivity (e.g., areas where 
growing conditions are harsher, such as serpentine sites or coastal 
shore pine forests, compared to other areas), suitable forest overstory 
conditions are highly variable. They may contain a sparse conifer 
overstory, such as in some serpentine areas, or a dense conifer 
overstory composed mainly of trees smaller than the typical older 
forest conditions described below in (1)b (e.g., the dense shore pine 
overstory found in areas occupied by marten along the Oregon coast).
    b. For other areas with higher productivity, martens tend to favor 
forest stands in the old-growth or late-mature seral stages. The 
specific forest composition and structure conditions found in higher 
productivity areas will vary by plant series and site class. Structural 
and composition descriptions of old-growth or late-mature seral stages 
for local plant community series should be used where available. In 
general these stands exhibit high levels of canopy cover and structural 
diversity in the form of: (1) A wide range of tree sizes, including 
trees with large

[[Page 58839]]

diameter and height; (2) deep, dense tree canopies with multiple canopy 
layers and irregular tree crowns; (3) high numbers of snags, including 
large-diameter snags; and (4) abundant down wood, including large logs, 
ideally in a variety of decay stages.
    (2) Dense, spatially extensive shrub layer. The shrub layer should 
be greater than 70 percent of the area, comprising mainly shade-
tolerant, long-lived, mast-producing species (primarily ericaceous 
species such as salal, huckleberry, or rhododendron, as well as shrub 
oaks). An extensive layer of dense shrubs provides protection and cover 
from coastal marten predators. In addition, ericaceous and mast-
producing shrubs provide forage for marten prey.
    (3) Stands with structural features. Structural features that 
support denning or resting, such as large down logs, rock piles with 
interstitial spaces, and large snags or live trees with decay elements 
or suitable resting structures (e.g., hollows and cavities, forked or 
broken tops, dead tops, brooms from mistletoe or other tree pathogens, 
or large platforms including abandoned nests). These features provide 
cover and thermal protection for kits and denning females, and for all 
animals when they are resting between foraging bouts. Hence, these 
features need to be distributed throughout a coastal marten home range. 
They also tend to be among the largest structures in the stand. Many of 
these features, such as down logs and snags or live trees with decayed 
elements, also support coastal marten prey.
    Physical or Biological Feature 2--Habitat that allows for movement 
within home ranges among stands that meet PBF 1, or supports 
individuals dispersing between home ranges. Habitat within PBF 2 
includes: (1) Stands that meet all three conditions of PBF1; (2) forest 
stands that only meet the first two components of PBF 1 (mature, 
conifer-dominated forest overstory and a dense, spatially extensive 
shrub layer); or (3), habitats with some lesser amounts of shrub, 
canopy, forest cover, or lesser amounts of smaller structural features 
as described in PBF 1, and while not meeting the definition of PBF 1, 
would still provide forage and cover from predators that would allow 
coastal martens to traverse the landscape to areas of higher quality 
habitat.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of this species 
may require special management considerations or protection to reduce 
the following direct or indirect threats: Incidents of roadkill; 
inadvertent poisoning from rodenticides; predation; disease; impacts 
from wildfire; and vegetation management actions. A detailed discussion 
of activities influencing the coastal marten and its habitat can be 
found in the final listing rule (85 FR 63806, October 8, 2020). Special 
management considerations or protection that may be required within 
critical habitat areas to address these threats include (but are not 
limited to) the following: Development of wildlife crossings on major 
roadways; monitoring and patrolling for unauthorized use of 
rodenticides in agricultural settings including cannabis operations; 
maintaining adequate cover and connectivity of habitats to provide 
cover from predation; implementation of forest management practices 
that prevent or reduce risk of catastrophic wildfire; reducing indirect 
impacts to coastal marten habitat from activities adjacent to critical 
habitat units; and minimizing habitat disturbance, fragmentation, and 
destruction through use of best management practices for vegetation 
management activities and providing appropriate buffers around coastal 
marten habitat.

Conservation Strategy and Selection Criteria Used To Identify Critical 
Habitat

Conservation Strategy

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are not currently proposing to 
designate any areas outside the geographical area occupied by the 
species because we have not identified any unoccupied areas that meet 
the definition of critical habitat. The occupied areas identified 
encompass the varying habitat types and distribution of the species and 
provide sufficient habitat to allow for maintaining and potentially 
expanding the populations.
    To determine and select appropriate occupied areas that contain the 
physical or biological features essential to the conservation of the 
species or areas otherwise essential for the conservation of the 
coastal marten, we developed a conservation strategy for the species. 
The goal of our conservation strategy for the coastal marten is to 
recover the species to the point where the protections of the Act are 
no longer necessary. The role of critical habitat in achieving this 
conservation goal is to identify the specific areas within the coastal 
marten's range that provide essential physical and biological features 
without which the coastal marten's range-wide resiliency, redundancy, 
and representation could not be achieved. This, in turn, requires an 
understanding of the fundamental parameters of the species' biology and 
ecology based on well-accepted conservation-biology and ecological 
principles for conserving species and their habitats, such as those 
described by Carroll et al. 1996 (pp. 1-12); Shaffer and Stein 2000 
(pp. 301-321); Natural Resources Conservation Service (NRCS) 2004 
(entire); Tear et al. 2005 (pp. 835-849); Groom et al. 2006 (pp. 419-
551); Redford et al. 2011 (pp. 39-48); and Wolf et al. 2015 (pp. 200-
207); and more specific coastal marten habitat information such as that 
described in Moriarty et al. 2016 (pp. 71-81); Delheimer et al. 2018 
(pp. 510-517); Linnell et al. 2018 (pp. 1-21); Moriarty et al. 2019 
(pp. 1-25); and Slauson et al. (2019a, entire).
    In developing our conservation strategy, we focused on increasing 
the resiliency, representation, and redundancy of coastal marten 
populations by maintaining and improving extant marten populations and 
suitable habitat. Because coastal marten occur in small and isolated 
populations, the primary focus of the conservation strategy is to 
maintain and expand extant populations and suitable habitat within 
those population areas. Suitable habitat includes areas for cover, 
resting, denning and foraging and also provides for dispersal habitat 
when breeding or food resources may not be optimal. To maintain 
redundancy of coastal marten populations, the conservation strategy 
also focuses on providing for areas in the diversity of habitats that 
coastal martens have been documented to use. This includes mesic 
serpentine, coastal shore pine, and late-seral coniferous forests. 
These habitats are spread across the species' range and typically 
provide the physical and biological features essential to the

[[Page 58840]]

conservation of the species without which range-wide resiliency, 
redundancy, and representation of the species could not be achieved. As 
explained further below, this focus led to the inclusion of suitable 
habitat within the ecological settings where the species occurs as part 
of the conservation strategy.

Selection Criteria and Methodology Used To Determine Critical Habitat

    As discussed above, to assist in determining which areas to 
identify as critical habitat for the coastal marten, we focused our 
selection on extant populations in the diversity of habitats 
represented by coastal marten. We define the proposed critical habitat 
as sites that contain the physical or biological features essential to 
the conservation of the species within the geographical area occupied 
by the species at the time of listing.
    To define the areas we consider to be the areas occupied at the 
time of listing, we started with a set of detection points and grouped 
detections into extant population areas (EPAs). The EPAs and the 
habitat areas adjacent to and within dispersal distance between the 
EPAs encompass the core areas we consider to be occupied at the time of 
listing. All current verifiable coastal marten detections were used to 
delineate EPAs within the historical home range. If the total number of 
detections in an area was less than five or they were separated by 
greater than 3 mi (5 km) from other verifiable detections, the combined 
detections were not designated as an EPA due to the insufficient level 
of information to suggest a likely self-sustaining population (Service 
2019a, p. 84). EPAs were considered separate from each other if they 
were not within 4.6 mi (7.5 km) of each other, which is based on half 
of the average dispersal distance of a coastal marten. This distance 
assumes that animals are not regularly moving between EPAs and the EPAs 
are functioning as separate populations. To better focus the areas 
occupied at the time of listing and considered to be essential to the 
conservation of the species, we refined the boundaries of the EPAs 
using a 60 percent concave hull method to select those areas with a 
higher prevalence of coastal marten detections.
    Because the EPAs are based on occurrence records and not habitat, 
we also used two different habitat models specific to coastal marten to 
incorporate the habitat used by the coastal marten detections 
associated with each EPA. These modeled areas are considered occupied 
by the species based on the continuous nature of the habitat and are 
within the dispersal distance and home ranges of the species. The first 
model we used found that coastal martens were positively associated 
with Old-Growth Structural Index (OGSI), precipitation, and serpentine 
soils, and negatively with elevation (Slauson et al. 2019b, entire). 
OGSI is a spatial data layer developed by the U.S. Forest Service 
(USFS) and Oregon State University and is an index of one to four 
measurable old-growth structure elements including (1) density of large 
live trees, (2) diversity of live-tree size classes, (3) density of 
large snags, and (4) percentage cover of down woody material (Davis et 
al. 2015, p. 16). OGSI serves as a surrogate for the late-seral 
structural features that are important to coastal marten survival and, 
in conjunction with the serpentine soil layer, incorporates several of 
the PBFs defined above. The inclusion of precipitation in the model 
accounts for the association of the mesic shrub layer that marten 
depend on for cover, resting, and foraging.
    We also used a habitat connectivity model developed by the Service 
that incorporates OGSI data along with a minimum patch size of habitat 
to create `cores' of suitable habitat (Schrott and Shinn 2020, entire). 
We used our model in conjunction with the Slauson et al. 2019b model 
because the Slauson model does not include low elevation areas known to 
be occupied by coastal martens. The Service model includes modeled 
output in lower elevation coastal regions of California and Oregon 
where we know coastal marten occur. Because the entire combined modeled 
extent of habitat overestimates the amount of habitat used by and 
needed for coastal marten conservation, we eliminated any modeled areas 
that were not adjacent to EPAs and eliminated modeled output in arid 
environments east of the Klamath River in California where suitable 
habitat is more scarce and localized to moist ravines. In addition, we 
trimmed the polygons where there were long tendrils displaying high 
edge-to-interior ratio that were generally artifacts of roads, modeled 
output, or misaligning of ownership projections and, thus, did not 
contain the PBFs considered essential to the conservation of the 
species.
    We further evaluated the polygons based on the PBFs for coastal 
marten and current land management practices under the Northwest Forest 
Plan (NWFP). We prioritized inclusion of Federal reserve lands and 
State lands occupied by the species at the time of listing because 
these lands contribute most to the conservation of the species, but 
also included those private lands that contain the PBFs essential to 
coastal marten conservation and which may require special management.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features necessary for the coastal marten. The 
scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Due to unverifiable ownership and 
mapping information, some small portions of private or unclassified 
lands may occur within the mapping of Units 1, 2 and 3, but which were 
not intended for inclusion within the designation. These areas are 
extremely small artifacts of mapping discrepancies and potential 
overlapping data information, do not contain the PBFs considered 
essential to the conservation of the species, and are not intended to 
be included as critical habitat as defined in this rule. Accordingly, 
any private lands in Units 1, 2, or 3 inadvertently included in the 
proposed designation are not considered critical habitat because they 
are part of inadvertent overlap or undeterminability and are too small 
to be significant for coastal marten conservation. Therefore, if the 
critical habitat is finalized as proposed, a Federal action involving 
these lands would not trigger section 7 consultation with respect to 
critical habitat and the requirement of no adverse modification unless 
the specific action would affect the physical or biological features in 
the adjacent critical habitat.
    We propose to designate as critical habitat lands that we have 
determined are occupied at the time of listing (i.e., currently 
occupied) and that contain one or more of the physical or biological 
features that are essential to support life-history processes of the 
species.
    Units are proposed for designation based on one or more of the 
physical or biological features being present to support the coastal 
marten's life-history processes. Some units contain all of the 
identified physical or biological features and support multiple life-
history processes. Some units contain only some of the physical or 
biological

[[Page 58841]]

features necessary to support the coastal marten's particular use of 
that habitat.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document under Proposed Regulation Promulgation. We include 
more detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on https://www.regulations.gov at Docket No. FWS-R8-ES-
2020-0151 and on our internet site, https://www.fws.gov/arcata.

Proposed Critical Habitat Designation

    We are proposing five units as critical habitat for the coastal 
marten. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for the coastal marten. Table 3 below identifies all of the 
units within the geographical area occupied at the time of listing that 
contain the physical or biological features that support multiple life-
history processes for the coastal marten and are thus essential to the 
conservation of the species.

                                        Table 3--Proposed Critical Habitat Units for Pacific Marten (Coastal DPS)
            [Area (acres (hectares)) reflects all land within critical habitat unit boundaries and includes area that may not contain PBFs.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Ownership (in acres (hectares))
                 Unit No. and name                 ---------------------------------------------------------------------------------        Total
                                                          Federal               State              Tribal               Other
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: OR-1 Siuslaw..............................      94,094 (37,673)         2,124 (859)                   0                   0      95,218 (38,534)
Unit 2: OR-2 Siltcoos.............................        8,582 (3,472)           249 (101)                   0                   0        8,830 (3,574)
Unit 3: OR-3 Coos Bay.............................       14,934 (6,044)           648 (262)                   0                   0       15,582 (6,306)
Unit 4: OR-4 Cape Blanco..........................          1,021 (413)       3,025 (1,224)                   0                   0        4,046 (1,637)
Unit 5: OR- CA-5 Klamath Mountains................  1,154,197 (467,103)      19,829 (8,024)     26,126 (10,573)     89,475 (36,210)  1,289,627 (521,913)
    Totals........................................  1,271,828 (514,708)     25,875 (10,471)     26,126 (10,573)     89,475 (36,210)  1,413,305 (571,965)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. ``Other'' represents, city, county, private or otherwise unidentified land ownership areas.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the coastal marten, below.

Unit 1: Siuslaw Unit. Lincoln and Lane Counties, Oregon

    This unit consists of approximately 95,218 ac (38,534 ha) and 
encompasses the northern portion of the central coastal Oregon 
population of coastal martens. Almost all of the unit is within Lane 
County, north of Oregon Highway 126, but a small portion extends north 
into Lincoln County, Oregon, on lands managed by the Siuslaw National 
Forest. The unit mostly borders the Pacific Ocean from just south of 
the town of Yachats, south to near Sea Lion Caves; further inland, the 
unit extends as far south as Mercer Lake. Portions of the unit extend 
inland from the coast as much as 18 mi (29 km), but most of the unit is 
within 12 mi (19 km) of the coast. The unit is almost entirely in 
Federal ownership (94,094 ac (37,675 ha)) (99 percent), specifically 
the Siuslaw National Forest, with approximately 74,899 ac (30,311 ha) 
in Late-Successional Reserve (LSR) land use allocation under the NWFP 
(USFS 1994, entire). Rock Creek and Cummins Creek Wilderness Areas make 
up much of the rest of the Federal lands. Oregon State Park lands along 
the coast comprise most of the remainder of the unit (2,124 ac (859 
ha)), including Neptune, Heceta Head, Washburne, and Ponsler State 
Parks. Recreation is a principal land use in this unit. Because the 
Federal lands are in an LSR allocation, forest management is limited to 
activities that are neutral or beneficial to the retention or 
development of late-successional forest conditions.
    This unit was occupied at the time of listing (2020), is currently 
occupied by coastal martens, and contains one or more of the physical 
or biological features essential to the conservation of the species. 
This unit represents the northernmost distribution of coastal martens 
in Oregon (based on contemporary detections), as well as relatively 
unfragmented old forest compared to other forests near the ocean within 
the DPS. This area may facilitate movement of coastal martens inland. 
This unit provides all of the features described in PBFs 1 and 2. 
Overstory conditions as described in PBF 1 are mostly associated with 
high-productivity sites across much of this unit, characteristic of the 
mature forests of the Sitka spruce vegetation zone as described in 
Franklin and Dyrness (1988, pp. 58-59).
    The habitat-based threats in this unit that may require special 
management include removal of forest vegetation, primarily through 
vegetation management such as timber harvest. Approximately 80 percent 
of the Federal portion of this unit is managed as a Late Successional 
Reserve, which requires retaining or developing late-successional 
conditions that could be suitable for coastal martens. However, some 
treatments that meet LSR standards and guidelines, such as thinning to 
increase tree size or stand complexity, can result in loss of dense 
understories that are valuable to coastal martens to escape from 
predators and provide suitable prey habitat. We have not identified 
potential exclusions at this time, but may consider information 
regarding potential exclusions provided during the comment period for 
this proposal.

Unit 2: Siltcoos Unit. Lane and Douglas Counties, Oregon

    This unit consists of approximately 8,830 ac (3,574 ha) and 
encompasses the central portion of the central coastal Oregon 
population of coastal martens in coastal Lane and Douglas Counties, 
Oregon. The unit occurs along the coastline west of Highway 101 and 
extends from near the city of Florence, Oregon, south approximately 12 
mi (19 km) to the vicinity of Tahkenitch Creek, west of Tahkenitch 
Lake. Land ownership within the unit includes approximately 8,582 ac 
(3,472 ha) of Federal and 249 ac (101 ha) of State land. The Federal 
portion is within the Oregon Dunes National Recreation Area, managed by 
the Siuslaw National Forest. The State portion comprises Honeyman State 
Park. Recreation is the principal land use in this unit, primarily All-
Terrain Vehicle (ATV) use on the open dunes and forested trails within 
the recreation area and surrounding areas.

[[Page 58842]]

    This unit was occupied at the time of listing (2020) and is 
currently occupied by coastal martens. Coastal martens in this unit and 
Unit 3 exhibit the highest densities and smallest home ranges 
documented in North America (Linnell et al. 2018, p. 13), indicating 
that the physical and biological features coastal martens require are 
widely available in this unit. The unit contains all of the components 
described in PBFs 1 and 2. For the forest overstory component of PBF 1, 
this unit falls into the less productive site category, due to the 
harsher growing conditions along the Oregon coast. Forest vegetation in 
this unit generally comprises dense strands of shore pine with 
extremely dense shrub understories, as described in Franklin and 
Dyrness (1988, pp. 291-294). This unit encompasses one of four known 
coastal marten populations, allowing for maintaining redundancy across 
the DPS. Coastal martens in this unit and Unit 3 are generally isolated 
from coastal martens in the rest of the DPS, with limited ability to 
connect populations across the landscape.
    The habitat-based threats in this unit that may require special 
management include possible loss of shore pine and understory shrub 
habitat in an effort to restore movement of coastal sand dunes or 
increase open areas for recreation vehicles. An additional threat is 
the invasion of nonnative shrub species (e.g., Scotch broom (Cytisus 
scoparius)) that may preclude the development of ericaceous shrubs and 
shore pine that are known components of suitable coastal marten 
habitat. We have not identified potential exclusions at this time, but 
may consider information regarding potential exclusions provided during 
the comment period for this proposal.

Unit 3: Coos Bay Unit. Douglas and Coos Counties, Oregon

    This unit consists of approximately 15,582 ac (6,306 ha) and 
encompasses the southern portion of the central coastal Oregon 
population of coastal martens in coastal Douglas and Coos Counties, 
Oregon. The unit extends from Winchester Bay south to the north spit of 
Coos Bay proper, and lies west of U.S. Highway 101. Land ownership 
includes 14,934 ac (6,044 ha) of Federal and 648 ac (262 ha) of State 
land. The Federal portion is within the Oregon Dunes National 
Recreation Area, managed by the Siuslaw National Forest. The State 
portion comprises Umpqua Lighthouse State Park. This unit is otherwise 
similar to Unit 2 in terms of primary land use, coastal marten 
occupancy, presence of physical and biological features, vegetation 
description, essentiality of conservation, and habitat based threats. 
Recreation is the principal land use in this unit, primarily ATV use on 
the open dunes and forested trails within the recreation area and 
surrounding areas.
    This unit was occupied at the time of listing (2020) and is 
currently occupied by coastal martens. Coastal martens in this unit, 
along with Unit 2, exhibit the highest densities and smallest home 
ranges in North America (Linnell et al. 2018, p. 13), indicating that 
the physical and biological features coastal martens require are widely 
available in this unit. The unit contains all of the components 
described in PBFs 1 and 2. For the forest overstory component of PBF 1, 
this unit falls into the less productive site category, due to the 
harsher growing conditions along the Oregon coast. Forest vegetation in 
this unit generally comprises dense strands of shore pine with 
extremely dense shrub understories, as described in Franklin and 
Dyrness (1988, pp. 291-294). This unit encompasses one of four known 
coastal marten populations, allowing for maintaining redundancy across 
the DPS. Coastal martens in this unit and Unit 2 are generally isolated 
from coastal martens in the rest of the DPS, with limited ability to 
connect populations across the landscape.
    The habitat-based threats in this unit that may require special 
management include addressing the possible loss of shore pine and 
understory shrub habitat in an effort to restore movement of coastal 
sand dunes or increase open areas for recreation vehicles. An 
additional threat is the invasion of nonnative shrub species (e.g., 
Scotch broom) that may preclude the development of ericaceous shrubs 
and shore pine that are known components of suitable coastal marten 
habitat. Loss of habitat adjacent to the unit as a result of the Jordan 
Cove liquefied natural gas project will reduce connection capacity with 
coastal martens detected on the north spit to the south (Service 2020, 
pp. 46-50). We have not identified potential exclusions at this time in 
this unit, but may consider information regarding potential exclusions 
provided during the comment period for this proposal.

Unit 4: Cape Blanco Unit. Coos and Curry Counties, Oregon

    This unit consists of approximately 4,046 ac (1,637 ha) and 
encompasses the immediate coastal portion of the southern coastal 
Oregon population of coastal martens in coastal Coos and Curry 
Counties, Oregon. The unit extends from just south of the Bandon State 
Natural Area, south to Cape Blanco State Park, and lies west of U.S. 
Highway 101. Land ownership includes 1,021 ac (413 ha) of Federal and 
3,025 ac (1,224 ha) of State land. The Federal portion is managed by 
the Bureau of Land Management (BLM) as a District Designated Reserve 
with no programmed timber harvest; portions of the reserve are managed 
for recreation, while other portions are managed as the New River Area 
of Critical Environmental Concern to protect and conserve natural 
resources. The State portion comprises Cape Blanco State Park and 
Floras Lake State Natural Area. Recreation is the principal land use in 
this unit.
    This unit was occupied at the time of listing (2020) and is 
currently occupied by coastal martens and contains one or more of the 
components described in PBFs 1 and 2 that are essential to the 
conservation of the species. The unit is a mix of shore pine dominated 
forests in the lowlands near the ocean, and more mature Sitka spruce 
forest in the higher bluffs around Cape Blanco. This unit encompasses 
occupied coastal forest that is known to be suitable habitat for 
coastal martens.
    The habitat-based threats in this unit that may require special 
management are the prevalence of invasive shrub species that may 
preclude the development of ericaceous shrubs and shore pine that are 
known components of suitable coastal marten habitat. We have not 
identified potential exclusions at this time, but may consider 
information regarding potential exclusions provided during the comment 
period for this proposal.

Unit 5: Klamath Mountains Unit. Coos, Curry, Douglas, and Josephine 
Counties, Oregon. Del Norte, Humboldt, and Siskiyou Counties, 
California

    This unit consists of approximately 1,289,627 ac (521,913 ha) and 
occurs mostly within the Klamath Mountains of southwestern Oregon and 
northwestern California. Within Oregon, the unit occurs in the southern 
part of Coos County, just south of Powers, Oregon, and extends south 
through eastern Curry and western Josephine Counties, with the 
northeastern fringe of the unit extending into Douglas County. The 
northwestern portion of this unit consists of a non-contiguous portion 
that encompasses Humbug Mountain State Park. The unit extends south 
into California, occupying much of the eastern portion of Del Norte 
County, extending south into Humboldt County and east into Siskiyou 
County. In California, the unit lies west of U.S. Highway 96 and 
extends all the way to the Pacific Ocean in northern Humboldt

[[Page 58843]]

County, encompassing Redwood National and State Parks. The unit is 89 
percent federally owned (1,154,197 ac (467,103 ha)), with an additional 
19,829 ac (8,024 ha) of State lands, 26,126 ac (10,573 ha) of Tribal 
lands, and the remainder (89,475 ac (36,210 ha)) owned by private or 
local governments. The USFS is the principal Federal land manager 
(Rogue River-Siskiyou, Six Rivers, and Klamath National Forests), with 
the BLM managing additional lands in Oregon, and the National Park 
Service in California. LSRs account for 46 percent of the Federal 
ownership. In addition, several Wilderness Areas are within this unit, 
including Grassy Knob, Wild Rogue, Copper Salmon, and Kalmiopsis in 
Oregon, and the Siskiyou Wilderness in California.
    This unit was occupied at the time of listing (2020) and is 
currently occupied by coastal martens and contains one or more of the 
physical or biological features essential to the conservation of the 
species. This unit represents the southernmost distribution of coastal 
martens in the DPS and encompasses the majority of known coastal marten 
detections. Outside of the northern portion of Unit 1, it also is the 
only source of non-shore pine habitat, and includes a variety of 
vegetation conditions that coastal martens use, enhancing 
representation. This unit contains key connectivity areas for coastal 
martens to move either north or south in the DPS, as well as inland or 
towards the coast. This unit provides all of the features described in 
PBFs 1 and 2. Overstory conditions as described in PBF 1 are associated 
with high productivity sites across much of the unit, but low-
productivity serpentine sites also occur across this unit.
    The habitat-based threats in this unit that may require special 
management include removal of forest vegetation, primarily through 
vegetation management such as timber harvest. Fuels management to 
reduce the risk of fire is also a regular activity throughout much of 
this unit. We have identified potential exclusions for some private and 
Tribal lands in this unit (see Exclusions). These potential exclusions 
include 76,544 ac (30,975 ha) of private land and 26,126 ac (10,573 ha) 
of Tribal land in the California portion of the unit.

Effects of Critical Habitat Designation

Section 7 Consultation

    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. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed species.
    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, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2) is documented 
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 Service 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 set forth requirements for Federal 
agencies to reinitiate formal consultation on previously reviewed 
actions. These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation, we have listed a new species 
or designated critical habitat that may be affected by the Federal 
action, or the action has been modified in a manner that affects the 
species or critical habitat in a way not considered in the previous 
consultation. In such situations, Federal agencies sometimes may need 
to request reinitiation of consultation with us, but the regulations 
also specify some exceptions to the requirement to reinitiate 
consultation on specific land management plans after subsequently 
listing a new species or designating new critical habitat. See the 
regulations for a description of those exceptions.

Application of the ``Destruction or Adverse Modification'' Standard

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. 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.

[[Page 58844]]

    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 violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    The scale and context of activities are particularly important in 
evaluating the potential effects on coastal marten habitat. The degree 
to which management activities are likely to affect the capability of 
critical habitat to support coastal martens will vary depending on 
factors such as the scope and location of the action, and the quantity 
of critical habitat affected. Activities that the Service may, during a 
consultation under section 7(a)(2) of the Act, be considered likely to 
destroy or adversely modify critical habitat include, but are not 
limited to:
    (1) Actions that would remove, manipulate, degrade, or destroy 
coastal marten habitat at such a magnitude that the entirety of the 
designated critical habitat would no longer serve its intended value of 
providing for conservation of the species. Activities that could result 
in such an impact could include very large-scale mechanical (including 
controlled fire), chemical, or biological (biocontrol agents) actions 
that may cause significant reductions in the amount, extent, or quality 
of habitat available to coastal martens for resting, denning, feeding, 
breeding, sheltering, and dispersing. While we are currently unaware of 
any planned activities involving Federal actions that could reach this 
magnitude of impact to the essential physical or biological features, 
known activities that have the potential to impact components of these 
features include timber sales, vegetation management, hazard tree 
removal, salvage of large areas of trees killed by fire or other 
mortality source, noxious weed treatments, forest pest and disease 
management, fire management including fire suppression and fuel 
reduction treatments, forest and aquatic restoration projects, 
activities conducted under mining permits, activities conducted under 
travel management plans (e.g., road maintenance, construction, and 
decommissioning), cleaning up and restoring unauthorized cannabis 
cultivation sites, recreation and visitor services projects and site 
development, communication projects and other infrastructure projects. 
Federal agencies likely to engage with the Service on these activities 
include the USFS, BLM, National Park Service, and Bureau of Indian 
Affairs.
    (2) Actions in relation to the Federal highway system, as regulated 
by the U.S. Department of Transportation, that would remove, fragment, 
manipulate, degrade, or destroy coastal marten habitat at such a 
magnitude that the entirety of the designated critical habitat would no 
longer serve its intended value of providing for conservation of the 
species. While we are currently unaware of any planned activities 
involving the Federal highway system that could reach this magnitude of 
impact to the essential physical or biological features, known 
activities that have the potential to impact components of these 
features include very large-scale road and bridge construction and 
right-of-way designation, maintenance or improvements of existing 
highways, and other infrastructure projects. These activities could 
remove, fragment, or reduce the amount, extent, or quality of habitat 
needed by coastal martens for resting, denning, feeding, breeding, 
sheltering, and dispersing.
    (3) Actions regulated by the Federal Energy Regulatory Commission, 
which are energy development projects that would remove, manipulate, 
degrade, or destroy coastal marten habitat at such a magnitude that the 
entirety of the designated critical habitat would no longer serve its 
intended value of providing for conservation of the species. While we 
are currently unaware of any planned activities involving Federal 
actions that could reach this magnitude of impact to the essential 
physical or biological features, known energy development projects that 
have the potential to impact components of these features could 
include, but are not limited to, very large-scale powerlines, liquefied 
natural gas pipelines and terminals, and solar and wind farms. These 
activities could remove or reduce the amount, extent, or quality of 
habitat needed by coastal martens for resting, denning, feeding, 
breeding, sheltering, and dispersing.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is proposed for designation.'' There are no 
Department of Defense (DoD) lands with a completed INRMP within the 
proposed critical habitat designation.

Consideration of Exclusions Under Section 4(b)(2) of the Act

    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 available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making the determination to exclude a particular area, the 
statute on its face, as well as the legislative history, are clear that 
the Secretary has broad discretion regarding which factor(s) to use and 
how much weight to give to any factor.
    We describe below the process that we undertook for taking into 
consideration each category of impacts and our analyses of the relevant 
impacts.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. 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, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected

[[Page 58845]]

by the designation of critical habitat (e.g., under the Federal listing 
as well as other Federal, State, and local regulations). The baseline, 
therefore, 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. The incremental conservation efforts 
and associated impacts would not be expected without 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 are the costs we use when 
evaluating the benefits of inclusion and exclusion of particular areas 
from the final designation of critical habitat should we choose to 
conduct a discretionary section 4(b)(2) exclusion analysis.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) (Service 2019b, entire) considering the 
probable incremental economic impacts that may result from this 
proposed designation of critical habitat. The information contained in 
our IEM was then used to develop a screening analysis of the probable 
effects of the designation of critical habitat for the coastal marten 
(Industrial Economics (IEc) 2020, entire). We began by conducting a 
screening analysis of the proposed designation of critical habitat in 
order to focus our analysis on the key factors that are likely to 
result in incremental economic impacts. The purpose of the screening 
analysis is to filter out particular geographic areas of critical 
habitat that are already subject to such protections and are, 
therefore, unlikely to incur incremental economic impacts. In 
particular, the screening analysis considers baseline costs (i.e., 
absent critical habitat designation) and includes probable economic 
impacts where land and water use may be subject to conservation plans, 
land management plans, best management practices, or regulations that 
protect the habitat area as a result of the Federal listing status of 
the species. Ultimately, the screening analysis allows us to focus our 
analysis on evaluating the specific areas or sectors that may incur 
probable incremental economic impacts as a result of the designation. 
If there are any unoccupied units in the proposed critical habitat 
designation, the screening analysis assesses whether any additional 
management or conservation efforts may incur incremental economic 
impacts. This screening analysis combined with the information 
contained in our IEM are what we consider our draft economic analysis 
(DEA) of the proposed critical habitat designation for the coastal 
marten; our DEA is summarized in the narrative below.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities. As 
part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation. In our evaluation of the probable 
incremental economic impacts that may result from the proposed 
designation of critical habitat for the coastal marten, first we 
identified, in the IEM dated October 22, 2019, probable incremental 
economic impacts associated with the following categories of 
activities: (1) Timber harvest activities; (2) wildfire or wildfire 
suppression activities; (3) road construction activities; (4) 
remediation of unauthorized cannabis cultivation sites; and (5) habitat 
restoration activities. We considered each industry or category 
individually. Additionally, we considered whether their activities have 
any Federal involvement. Critical habitat designation generally will 
not affect activities that do not have any Federal involvement; under 
the Act, designation of critical habitat only affects activities 
conducted, funded, permitted, or authorized by Federal agencies. In 
areas where the coastal marten 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. 
If we finalize this proposed critical habitat designation, 
consultations to avoid the destruction or adverse modification of 
critical habitat would be incorporated into the existing consultation 
process.
    In our IEM, we attempted to clarify the distinction between the 
effects that would result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the 
coastal marten's critical habitat. Because the designation of critical 
habitat for coastal marten is being proposed nearly concurrently with 
the listing, it has been our experience that it is more difficult to 
discern which conservation efforts are attributable to the species 
being listed and those which will result solely from the designation of 
critical habitat. However, the following specific circumstances in this 
case help to inform our evaluation: (1) The essential physical or 
biological features identified for critical habitat are the same 
features essential for the life requisites of the species, and (2) any 
actions that would result in sufficient harm or harassment to 
constitute jeopardy to the coastal marten may also be likely to 
adversely affect the essential physical or biological features of 
critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
proposed designation of critical habitat.
    The proposed critical habitat designation for the coastal marten is 
made up of five units, four within Oregon and one along the Oregon 
border extending south into California. All of the units are occupied 
by the coastal marten. The amount of area being proposed within each 
unit along with ownership information is summarized in Table 3 (see 
Proposed Critical Habitat Designation). Federal land makes up 90 
percent of the total proposed designation (Table 3). As a result, a 
large percentage of the designation would be subject to a Federal nexus 
and section 7 consultation. Approximately 81 percent of the Federal 
lands are specifically managed by the USFS. A number of existing land 
use and management plans exist within proposed critical habitat that 
may provide benefits to coastal marten critical habitat. In particular, 
USFS lands proposed as critical habitat are managed under the Northwest 
Forest Plan, which entails a network of late-successional reserve land-
use allocations to be managed for the retention and development of 
late-successional forest that may benefit habitat for coastal martens. 
In addition, most proposed BLM lands are included in reservation 
allocations where programmed timber harvest does not occur.

[[Page 58846]]

    Because the proposed units are occupied, any actions that may 
affect the species or its habitat would also affect designated critical 
habitat, and it is unlikely that any additional conservation efforts 
would be recommended to address the adverse modification standard over 
and above those recommended as necessary to avoid jeopardizing the 
continued existence of the coastal marten. Therefore, only 
administrative costs associated with an adverse modification analysis 
are expected in approximately 90 percent of the proposed critical 
habitat designation. While this additional analysis will require time 
and resources by both the Federal action agency and the Service, it is 
believed that, in most circumstances, these costs would predominantly 
be administrative in nature and would not be significant.
    In addition, nearly 48 percent of the proposed designation for 
coastal marten overlaps with existing critical habitat for the 
endangered marbled murrelet (Brachyramphus marmoratus), threatened 
northern spotted owl (Strix occidentalis caurina), threatened Oregon 
silverspot butterfly (Speyeria zerene hippolyta), and the threatened 
Pacific coast population of the western snowy plover (Charadrius 
nivosus nivosus) (IEc 2020, Exhibit A-1, p. 18). Although the western 
snowy plover's and Oregon silverspot butterfly's habitat needs are 
distinctly different than the coastal marten's, the overall habitat 
needs of both the marbled murrelet and northern spotted owl would 
provide at least some overlap in maintaining appropriate forested 
habitat. The overlap between the murrelet and northern spotted owl make 
up the majority (42 percent) of critical habitat overlap with the 
coastal marten As a result, any consultation requirements for listed 
species and resulting costs would be at least partially split between 
each overlapped species with not one species being the sole source of 
the entire costs.
    The entities most likely to incur incremental costs are parties to 
section 7 consultations, including Federal action agencies and, in some 
cases, third parties, most frequently State agencies or Tribes. Because 
the proposed critical habitat designation includes other lands not 
owned by Federal, State, or Tribal governments, incremental costs 
arising from public perception of the designation have some potential 
to arise; however, these non-governmental lands make up only a small 
portion (6.3 percent) of the proposed designation. Further, there do 
not appear to be significant development pressures in the area. We are 
not aware of any Tribal, State, or local government regulations or 
requirements that could be triggered by the designation of critical 
habitat for the coastal marten and attribute any change in behavior 
from private entities to be associated with public perception or 
attitudes rather than any specific requirements. Based on coordination 
efforts with Tribal partners and State and local agencies, the cost to 
private entities within these sectors is expected to be relatively 
minor (administrative costs of less than $10,000 per consultation 
effort); they, therefore, would not be significant.
    Our analysis of economic costs estimates that considering adverse 
modification of coastal marten critical habitat during section 7 
consultation will result in incremental costs of approximately $280,000 
(2018 dollars) per year. The incremental administrative burden 
resulting from the designation of critical habitat for the coastal 
marten will not reach $100 million in a given year based on the 
estimated annual number of consultations and per-unit consultation 
costs. The designation is unlikely to trigger additional requirements 
under State or local regulations and is not expected to have 
perceptional effects to third parties.
    We are soliciting data and comments from the public on the DEA 
discussed above, as well as all aspects of this proposed rule and our 
required determinations. During the development of a final designation, 
we will consider the information presented in the DEA and any 
additional information on economic impacts received during the public 
comment period to determine whether any specific areas should be 
excluded from the final critical habitat designation under authority of 
section 4(b)(2) and our implementing regulations at 50 CFR 424.19. In 
particular, we may exclude an area from critical habitat if we 
determine that the benefits of excluding the area outweigh the benefits 
of including the area, provided the exclusion will not result in the 
extinction of this species.

Consideration of National Security Impacts

    In preparing this proposal, we have determined that the lands 
within the proposed designation of critical habitat for the coastal 
marten are not owned, managed, or used by the Department of Defense or 
Department of Homeland Security; therefore, we anticipate no impact on 
national security or homeland security as a result of the designation. 
However, during the development of a final designation, we will 
consider any additional information received through the public comment 
period on the impacts of the proposed designation on national security 
or homeland security to determine whether any specific areas should be 
excluded from the final critical habitat designation under authority of 
section 4(b)(2) of the Act and our implementing regulations at 50 CFR 
424.19.

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. We consider a number of factors including 
whether there are permitted conservation plans covering the species in 
the area such as HCPs, safe harbor agreements (SHAs), or candidate 
conservation agreements with assurances (CCAAs), or whether there are 
non-permitted conservation agreements and partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at the existence of Tribal conservation plans and 
partnerships and consider the government-to-government relationship of 
the United States with Tribal entities. We also consider any social 
impacts that might occur because of the designation.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive due to the 
protection from destruction or adverse modification as a result of 
actions with a Federal nexus, the educational benefits of mapping 
essential habitat for recovery of the listed species, and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation, or in the continuation, strengthening, or 
encouragement of partnerships.
    In the case of the coastal marten, the benefits of critical habitat 
include public awareness of the presence of the coastal marten and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection for the coastal marten due to protection 
from destruction or adverse modification of critical habitat. 
Additionally, continued implementation of an ongoing management or 
conservation plan that provides equal to or more conservation than a 
critical habitat designation would reduce the benefits of including 
that

[[Page 58847]]

specific area in the critical habitat designation.
    We evaluate the existence of a management or conservation plan when 
considering the benefits of inclusion. We consider a variety of 
factors, including, but not limited to, whether the plan is finalized; 
how it provides for the conservation of the essential physical or 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information or changing 
conditions.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.

Private or Other Non-Federal Conservation Plans or Agreements and 
Partnerships, in General

    We sometimes exclude specific areas from critical habitat 
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant 
partnerships. A conservation plan or agreement describes actions that 
are designed to provide for the conservation needs of a species and its 
habitat, and may include actions to reduce or mitigate negative effects 
on the species caused by activities on or adjacent to the area covered 
by the plan. Conservation plans or agreements can be developed by 
private entities with no Service involvement, or in partnership with 
the Service.
    We evaluate a variety of factors to determine how the benefits of 
any exclusion and the benefits of inclusion are affected by the 
existence of private or other non-Federal conservation plans or 
agreements and their attendant partnerships when we undertake a 
discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list 
of factors that we will consider for non-permitted plans or agreements 
is shown below. These factors are not required elements of plans or 
agreements, and all items may not apply to every plan or agreement.
    (i) The degree to which the plan or agreement provides for the 
conservation of the species or the essential physical or biological 
features (if present) for the species.
    (ii) Whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan or agreement will be implemented.
    (iii) The demonstrated implementation and success of the chosen 
conservation measures.
    (iv) The degree to which the record of the plan supports a 
conclusion that a critical habitat designation would impair the 
realization of benefits expected from the plan, agreement, or 
partnership.
    (v) The extent of public participation in the development of the 
conservation plan.
    (vi) The degree to which there has been agency review and required 
determinations (e.g., State regulatory requirements), as necessary and 
appropriate.
    (vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.) compliance was required.
    (viii) Whether the plan or agreement contains a monitoring program 
and adaptive management to ensure that the conservation measures are 
effective and can be modified in the future in response to new 
information.
Green Diamond Resource Company Lands; Unit 5 Klamath Mountains
    The Green Diamond Resource Company (GDRC) owns and manages 
approximately 76,544 ac (30,976 ha) of lands included in the proposed 
designation for the coastal marten in California. Using the criteria 
described under Criteria Used To Identify Critical Habitat, we have 
determined that these lands are essential to the conservation of the 
species.
    The GDRC has developed an MOU with the Service (GDRC-Service 2020, 
entire) and a State Safe Harbor Agreement (SHA) with the California 
Department of Fish and Wildlife (CDFW 2018, entire) to assist in 
conservation of the coastal marten and its habitat. Conservation 
measures identified for the coastal marten and its habitat in the MOU 
and State SHA include:
     Engage in survey, monitoring, reporting, and coordination 
efforts for coastal marten.
     Provide funding and technical support for assisted coastal 
marten dispersal actions.
     Develop and implement a coastal marten training program.
     Establish a 127,217 ac ``Marten Special Management Area'' 
with a 2,098 ac reserve.
     Create slash piles to benefit coastal marten and provide 
habitat around natal dens.
     Implement avoidance and minimization measures for GDRC 
actions in coastal marten habitat.
     Discourage and prevent unauthorized cannabis cultivation 
and use of pesticides.
     Implement adaptive management strategies for conservation 
of coastal marten and its habitat.
     Designate an internal compliance team and MOU Coordinator 
to oversee coastal marten conservation through the MOU and SHA.
     Provide access to GDRC lands to State and Service staff to 
verify compliance of agreements.
     Retain live and snag tree habitat components to benefit 
coastal marten (Retention Scorecard) and their habitat.
    In addition, the GDRC has been and continues to be a member of a 
multi-agency management group for conservation of the coastal marten in 
California and Oregon. The group has developed a conservation strategy 
and management plan for conserving the coastal marten in California 
(Slauson et al. 2019a, entire). The conservation strategy was developed 
to address coastal marten declines and synthesizes current knowledge on 
the species and identifies current threats, management goals, and 
outlines numerous conservation actions and information needs. The 
implementation of the conservation measures outlined in the strategy 
would assist in conserving the species and its habitat.
    We have determined that the conservation measures and management 
actions identified above being undertaken by GDRC will conserve and 
manage coastal marten habitat including the species' PBFs and that 
these actions meet our criteria for exclusion under section 4(b)(2) of 
the Act. Based on GDRC working with the Service and the CDFW on 
development and implementation of the MOU and State SHA that benefit 
coastal marten habitat, involvement and development of the conservation 
strategy, and its continued partnership with us in coastal marten 
conservation, we are considering excluding GDRC lands from the final 
designation. We will continue to work with the GDRC throughout the 
public comment period and during development of the final designation 
of critical habitat for the coastal marten and are seeking comment on 
whether

[[Page 58848]]

the existing management and conservation efforts of GDRC meet our 
criteria for exclusion from the final designation under section 4(b)(2) 
of the Act.

Tribal Lands

    Several Executive Orders, Secretarial Orders, and policies concern 
working with Tribes. These guidance documents generally confirm our 
trust responsibilities to Tribes, recognize that Tribes have sovereign 
authority to control Tribal lands, emphasize the importance of 
developing partnerships with Tribal governments, and direct the Service 
to consult with Tribes on a government-to-government basis.
    A joint Secretarial Order that applies to both the Service and the 
National Marine Fisheries Service (NMFS), Secretarial Order 3206, 
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most 
comprehensive of the various guidance documents related to our 
relationships with Tribes and Act implementation, and it provides the 
most detail directly relevant to the designation of critical habitat. 
In addition to the general direction discussed above, S.O. 3206 
explicitly recognizes the right of Tribes to participate fully in the 
listing process, including designation of critical habitat. The Order 
also states: ``Critical habitat shall not be designated in such areas 
unless it is determined essential to conserve a listed species. In 
designating critical habitat, the Services shall evaluate and document 
the extent to which the conservation needs of the listed species can be 
achieved by limiting the designation to other lands.'' In light of this 
instruction, when we undertake a discretionary section 4(b)(2) 
exclusion analysis, we will always consider exclusions of Tribal lands 
under section 4(b)(2) of the Act prior to finalizing a designation of 
critical habitat, and will give great weight to Tribal concerns in 
analyzing the benefits of exclusion.
    However, S.O. 3206 does not preclude us from designating Tribal 
lands or waters as critical habitat, nor does it state that Tribal 
lands or waters cannot meet the Act's definition of ``critical 
habitat.'' We are directed by the Act to identify areas that meet the 
definition of ``critical habitat'' (i.e., areas occupied at the time of 
listing that contain the essential physical or biological features that 
may require special management or protection and unoccupied areas that 
are essential to the conservation of a species), without regard to 
landownership. While S.O. 3206 provides important direction, it 
expressly states that it does not modify the Secretaries' statutory 
authority.
Yurok Tribal Lands; Unit 5 Klamath Mountains
    Approximately 26,126 ac (10,573 ha) of Yurok Tribal lands are 
included in the proposed designation of critical habitat for the 
coastal marten in Unit 5 in California. Using the criteria described 
under Criteria Used To Identify Critical Habitat, we have determined 
that these Tribal lands are occupied by the coastal marten and contain 
the features essential to the conservation of the species.
    The Yurok Tribe has a demonstrated track record of maintaining its 
lands for natural resources through implementation of their Yurok 
Forest Management Plan (FMP) (Yurok 2012, entire) and the Blue Creek 
Interim Management Plan (BCIMP) (Yurok Tribe and Western Rivers 
Conservancy 2018, entire). The FMP and BCIMP identify management 
guidance for specific forest types to enhance and restore healthy, 
resilient riparian and old growth forests on Yurok Tribal lands. The 
FMP and BCIMP identify actions that contribute to the conservation of 
coastal forest habitat important to coastal marten including:
     Establishment of the Humboldt Marten Special Management 
Area (currently 10,906 ac).
     Surveys for coastal marten in and around project areas.
     Retention and enhancement of suitable reproductive 
habitat.
     Strategic habitat management to improve connectivity.
     Population monitoring combined with adaptive management to 
evaluate management effectiveness and prevent disease and predation.
     When appropriate, use of timber harvest, thinning, fuels 
reduction, and prescribed fire methods that avoid or minimize 
alteration of dense understory shrubs that are beneficial to coastal 
marten.
     Identification of stand management alternative to restore 
and enhance shrub cover where it has been lost or reduced.
     Maintenance of spatial database of coastal marten 
distribution.
     Nonnative and invasive species control and eradication.
     Fire and fuels management (including variable density 
thinning, shaded fuel breaks, cultural burning, and emergency 
rehabilitation).
     Development, testing, and creation of surrogate structures 
that meet key life-history needs for resting and denning to increase 
habitat suitability in the short term.
    Additionally, we have begun coordination with the Yurok Tribe to 
assist in identifying additional management actions that may benefit 
the coastal marten or its habitat. The intent of the discussions is to 
ultimately develop an MOU with the Tribe to further solidify our 
partnership with the Tribe in developing and implementing land 
management practices beneficial to the Tribe and the coastal marten. 
The current draft MOU identifies habitat management practices, habitat 
restoration, fuels reduction, and research opportunities that will 
benefit the coastal marten. The Yurok Tribe has also been and continues 
to be a member of a multi-agency management group for the conservation 
of coastal marten in California and Oregon. The group has developed a 
conservation strategy and management plan for conserving the coastal 
marten in California (Slauson et al. 2019a, entire). We will continue 
to work with the Tribe throughout the public comment period and during 
development of the final designation of critical habitat for the 
coastal marten to further develop and finalize the MOU and build on our 
existing partnership in implementing specific conservation measures for 
the coastal marten.
    Based on existing conservation and management actions for natural 
resources by the Yurok Tribe, maintaining and strengthening our working 
relationship with the Tribe, and preliminary development of the coastal 
marten MOU with the Tribe, we are considering excluding the Yurok 
Tribal lands from the final designation. We are seeking comment on 
whether the Yurok Tribal lands are appropriate for exclusion from the 
final critical habitat designation to the extent consistent with the 
requirements of section 4(b)(2) of the Act.

Summary of Exclusions Considered Under 4(b)(2) of the Act

    Based on the information provided by entities whose lands we are 
considering for exclusion, as well as any additional public comments we 
receive, we will evaluate whether certain lands in Unit 5 of the 
proposed critical habitat are appropriate for exclusion from the final 
designation under section 4(b)(2) of the Act. If the analysis indicates 
that the benefits of excluding lands from the final designation 
outweigh the benefits of designating those lands as critical habitat, 
then the Secretary may exercise her discretion to exclude the lands 
from the final designation. We may also consider areas not identified 
above for exclusion from the final critical habitat designation based 
on information we

[[Page 58849]]

may receive during the public comment period.
    We are considering whether to exclude the following areas under 
section 4(b)(2) of the Act from the final critical habitat designation 
for the coastal marten. Table 4 below provides approximate areas (ac, 
ha) of lands that meet the definition of critical habitat but for which 
we are considering possible exclusion under section 4(b)(2) of the Act 
from the final critical habitat rule. These areas include lands owned 
and managed by the Green Diamond Resource Company and the Yurok Tribe 
in California in Unit 5.

                        Table 4--Areas Considered for Exclusion by Critical Habitat Unit
                                                    [Ac (ha)]
----------------------------------------------------------------------------------------------------------------
                                                      Areas meeting the
                                                        definition of     Areas considered for    Rationale for
        Unit                      Name               critical habitat in   possible exclusion       proposed
                                                           ac (Ha)             in  ac (Ha)          exclusion
----------------------------------------------------------------------------------------------------------------
5..................  Klamath Mountains............   1,290,604 (573,058)       76,544 (30,975)  Existing Land
                                                                                                 Management,
                                                                                                 State Safe
                                                                                                 Harbor, MOU,
                                                                                                 Maintaining
                                                                                                 Partnership.
                                                                               26,126 (10,573)  Existing Land
                                                                                                 Management,
                                                                                                 Draft MOU,
                                                                                                 Maintaining
                                                                                                 Partnership.
----------------------------------------------------------------------------------------------------------------

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA 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 proposed 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 
(SBREFA) of 1996 (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 whether 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.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies 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 out 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 would be directly 
regulated if we adopt the proposed critical habitat designation. There 
is no requirement under the RFA to evaluate the potential impacts to 
entities not directly

[[Page 58850]]

regulated. Moreover, Federal agencies are not small entities. 
Therefore, because no small entities would be directly regulated by 
this rulemaking, the Service certifies that, if made final as proposed, 
the proposed critical habitat designation will not have a significant 
economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if made final, the proposed 
critical habitat designation will not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial 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. In our economic analysis, we did not find that this 
proposed critical habitat designation would significantly affect energy 
supplies, distribution, or use, because these types of activities are 
not occurring and not expected to occur in areas being proposed as 
critical habitat. Therefore, this action is not a 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 finding:
    (1) This proposed rule would 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 would significantly or 
uniquely affect small governments. The lands being proposed for 
critical habitat designation are owned by cities, Tribes, the State of 
California or Oregon, and the National Park Service, Bureau of Land 
Management, or the U.S. Forest Service. None of these government 
entities fits the definition of a ``small governmental jurisdiction.'' 
Therefore, a Small Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the coastal marten in a takings implications assessment. 
The Act does not authorize the Service to regulate private actions on 
private lands or confiscate private property as a result of critical 
habitat designation. Designation of critical habitat does not affect 
land ownership, or establish any closures, or restrictions on use of or 
access to the designated areas. Furthermore, the designation of 
critical habitat 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. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed for the 
proposed designation of critical habitat for coastal marten, and it 
concludes that, if adopted, this designation of critical habitat does 
not pose significant takings implications for lands within or affected 
by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A federalism summary impact 
statement is not required. In keeping with Department of the Interior 
and Department of Commerce policy, we requested information from, and 
coordinated development of this proposed critical habitat designation 
with, appropriate State resource agencies. 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 State and local 
governments, or for anyone else. As a result, the proposed 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 proposed 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 or biological features of the habitat necessary for the 
conservation of the species are specifically identified. This 
information does not alter where and

[[Page 58851]]

what federally sponsored activities may occur. However, it may assist 
State and local governments in long-range planning because they 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) of the Act 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 would 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 proposed designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the species, 
this proposed rule identifies the elements of physical or biological 
features essential to the conservation of the species. The proposed 
areas of designated critical habitat are presented on maps, and the 
proposed rule provides several options for the interested public to 
obtain more detailed location information, if desired.

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

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are 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. The Yurok Tribe has lands identified 
in the proposed designation. We have coordinated with the Tribe in 
development of the SSA and will continue to work with the Yurok Tribe 
throughout the process of designating critical habitat for the coastal 
marten.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from the 
Arcata Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the Arcata 
Fish and Wildlife Field Office and Oregon State Fish and Wildlife 
Service Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless 
otherwise noted.

0
2. Amend Sec.  17.11(h) by revising the entry for ``Marten, Pacific 
[Coastal DPS]'' under MAMMALS in the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
           Common name               Scientific name        Where listed         Status         and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                  * * * * * * *
Marten, Pacific [coastal DPS]....  Martes caurina.....  U.S.A. (CA (north-   T               85 FR 63806, 10/8/
                                                         western), OR                         2020; 50 CFR
                                                         (western)).                          17.40(s).\4d\ 50
                                                                                              CFR 17.95(a).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. In Sec.  17.95, amend paragraph (a) by adding an entry for ``Pacific 
Marten (Martes caurina), Coastal DPS'' after the entry for ``Florida 
Manatee (Trichechus manatus)'' to read as follows:


Sec.  17.95   Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *

[[Page 58852]]

Pacific Marten (Martes caurina), Coastal DPS

    (1) Critical habitat units are depicted for California and Oregon, 
on the maps below in this entry.
    (2) Within these areas, the physical or biological features (PBFs) 
essential to the conservation of the Pacific marten (Coastal DPS) 
consist of the following components:
    (i) Habitat that supports a coastal marten home range by providing 
for breeding, denning, resting, or foraging. This habitat provides 
cover and shelter to facilitate thermoregulation and reduce predation 
risk, foraging sources for marten prey, and structures that provide 
resting and denning sites. To provide cover and support denning, 
resting, and foraging, coastal martens require a mature forest 
overstory, dense understory development, and biologically complex 
structure that contains snags, logs, other decay elements, or other 
structures that support denning, resting, or marten prey. Stands 
meeting the conditions for PBF 1 would also function as meeting PBF 2 
(facilitating movement within and between coastal marten home ranges). 
Stands meeting the condition for PBF 1 contain each of the following 
three components:
    (A) Mature, conifer-dominated forest overstory. Overstory canopy 
cover provides protection to coastal martens from aerial and 
terrestrial predators, as well as shelter from physical elements such 
as sun or storms. It also is the source of structural features that 
coastal martens use for denning and resting, and provides suitable 
marten prey. Suitable overstory conditions vary depending on the 
productivity of the site as follows:
    (1) For areas with relatively low productivity (e.g., areas where 
growing conditions are harsher, such as serpentine sites or coastal 
shore pine forests, compared to other areas), suitable forest overstory 
conditions are highly variable. They may contain a sparse conifer 
overstory, such as in some serpentine areas, or a dense conifer 
overstory composed mainly of trees smaller than the typical older 
forest conditions described below in paragraph (2)(i)(B)(2) of this 
entry (e.g., the dense shore pine overstory found in areas occupied by 
marten along the Oregon coast).
    (2) For other areas with higher productivity, martens tend to favor 
forest stands in the old-growth or late-mature seral stages. The 
specific forest composition and structure conditions found in higher 
productivity areas will vary by plant series and site class. Structural 
and composition descriptions of old-growth or late-mature seral stages 
for local plant community series should be used where available. In 
general these stands exhibit high levels of canopy cover and structural 
diversity in the form of:
    (i) A wide range of tree sizes, including trees with large diameter 
and height;
    (ii) Deep, dense tree canopies with multiple canopy layers and 
irregular tree crowns;
    (iii) High numbers of snags, including large-diameter snags; and
    (iv) Abundant down wood, including large logs, ideally in a variety 
of decay stages.
    (B) Dense, spatially extensive shrub layer. The shrub layer should 
be greater than 70 percent of the area, comprising mainly shade-
tolerant, long-lived, mast-producing species (primarily ericaceous 
species such as salal, huckleberry, or rhododendron, as well as shrub 
oaks). An extensive layer of dense shrubs provides protection and cover 
from coastal marten predators. In addition, ericaceous and mast-
producing shrubs provide forage for marten prey.
    (C) Stands with structural features. Structural features that 
support denning or resting, such as large down logs, rock piles with 
interstitial spaces, and large snags or live trees with decay elements 
or suitable resting structures (e.g., hollows and cavities, forked or 
broken tops, dead tops, brooms from mistletoe or other tree pathogens, 
or large platforms including abandoned nests). These features provide 
cover and thermal protection for kits and denning females, and for all 
animals when they are resting between foraging bouts. Hence, these 
features need to be distributed throughout a coastal marten home range. 
They also tend to be among the largest structures in the stand. Many of 
these features, such as down logs and snags or live trees with decayed 
elements, also support coastal marten prey.
    (ii) Habitat that allows for movement within home ranges among 
stands that meet PBF 1 or that supports individuals dispersing between 
home ranges. Habitat within PBF 2 includes:
    (A) Stands that meet all three conditions of PBF1;
    (B) Forest stands that meet only the first two components of PBF 1 
(mature, conifer-dominated forest overstory and a dense, spatially 
extensive shrub layer); or
    (C) Habitats with lesser amounts of shrub, canopy, or forest cover, 
or lesser amounts of smaller structural features as described in PBF 1, 
and while not meeting the definition of PBF 1, would still provide 
forage and cover from predators that would allow a coastal marten to 
traverse the landscape to areas of higher quality habitat.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved or hardened areas 
as a result of development) and the land on which they are located 
existing within the legal boundaries of the critical habitat units for 
the species on [EFFECTIVE DATE OF THE FINAL RULE]. Due to the scale on 
which the critical habitat boundaries are developed, some areas within 
these legal boundaries may not contain the physical or biological 
features and therefore are not considered critical habitat.
    (4) Critical habitat map units. In the critical habitat map units, 
data layers defining map units were created using ArcGIS Pro 2.5.2 
(Environmental Systems Research Institute, Inc. (ESRI)), a Geographic 
Information Systems (GIS) program. ESRI base maps of world topographic, 
world imagery, and the program's world imagery USGS Imagery were used. 
Base map service was last refreshed April 2020. Critical habitat units 
were then mapped using North American Datum (NAD) 1983, Albers. The 
maps in this entry, as modified by any accompanying regulatory text, 
establish the boundaries of the critical habitat designation. The 
coordinates or plot points or both on which each map is based are 
available to the public at the Service's Arcata Fish and Wildlife 
Office's internet site at https://www.fws.gov/arcata, or on https://www.regulations.gov at Docket No. FWS-R8-ES-2020-0151, and at the field 
office responsible for this designation. You may obtain field office 
location information by contacting one of the Service regional offices, 
the addresses of which are listed at 50 CFR 2.2.

[[Page 58853]]

    (5) Note: Index map for California and Oregon follows:
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TP25OC21.000


[[Page 58854]]


    (6) Unit 1: Siuslaw Unit, Lincoln and Lane Counties, Oregon.
    (i) General description: Unit 1 consists of 95,218 ac (38,543 ha) 
and comprises Federal (94,094 ac (37,673 ha)), State (2,124 ac (859 
ha)), and less than 1 ac (1 ha) other lands.
    (ii) Map of Unit 1 follows:
    [GRAPHIC] [TIFF OMITTED] TP25OC21.001
    

[[Page 58855]]


    (7) Unit 2: Siltcoos Unit. Lane and Douglas Counties, Oregon.
    (i) General description: Unit 2 consists of 8,830 ac (3,574 ha) and 
comprises Federal (8,582 ac (3,472 ha)) and State (249 ac (101 ha)) 
lands.
    (ii) Map of Unit 2 follows:
    [GRAPHIC] [TIFF OMITTED] TP25OC21.002
    

[[Page 58856]]


    (8) Unit 3: Coos Bay Unit. Douglas and Coos Counties, Oregon.
    (i) General description: Unit 3 consists of 15,582 ac (6,306 ha) 
and comprises Federal (14,934 ac (6,044 ha)) and State (648 ac (262 
ha)) lands.
    (ii) Map of Unit 3 follows:
    [GRAPHIC] [TIFF OMITTED] TP25OC21.003
    

[[Page 58857]]


    (9) Unit 4: Cape Blanco Unit. Coos and Curry Counties, Oregon.
    (i) General description: Unit 4 consists of 4,046 ac (1,637 ha) and 
comprises Federal (1,021 ac (413 ha)) and State (3,025 ac (1,224 ha)) 
lands.
    (ii) Map of Unit 4 follows:
    [GRAPHIC] [TIFF OMITTED] TP25OC21.004
    

[[Page 58858]]


    (10) Unit 5: Klamath Mountains Unit. Coos, Curry, Douglas, and 
Josephine Counties, Oregon. Del Norte, Humboldt, and Siskiyou Counties, 
California.
    (i) General description: Unit 5 consists of 1,289,627 ac (521,913 
ha) and comprises Federal (1,154,197 ac (467,103 ha)), State (19,829 ac 
(8,024 ha)), Tribal (26,126 ac (10,573 ha)), and private or undefined 
(89,475 ac (36,210 ha)) lands.
    (ii) Map of Unit 5 follows:
    [GRAPHIC] [TIFF OMITTED] TP25OC21.005
    
* * * * *

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-22994 Filed 10-22-21; 8:45 am]
BILLING CODE 4333-15-C