Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Northern Spotted Owl, 62606-62666 [2021-24365]

Download as PDF 62606 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations habitat units can be downloaded at https://ecos.fws.gov/ecp/species/ 1123#crithab under the heading Critical Habitat Spatial Extents. FOR FURTHER INFORMATION CONTACT: Paul Henson, Ph.D., State Supervisor, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th Avenue, Portland, OR 97266; telephone 503–231–6179. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800–877–8339. SUPPLEMENTARY INFORMATION: DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R1–ES–2020–0050; FF09E21000 FXES1111090FEDR 223] RIN 1018–BF01 Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Northern Spotted Owl Fish and Wildlife Service, Interior. ACTION: Final rule; withdrawal and revision. AGENCY: We, the U.S. Fish and Wildlife Service (Service), revise the designation of critical habitat for the northern spotted owl (Strix occidentalis caurina) under the Endangered Species Act of 1973, as amended (ESA or Act), by withdrawing the January 15, 2021, final rule that would have been effective December 15, 2021, and which would have excluded approximately 3.4 million acres (1.4 million hectares) of designated critical habitat for the northern spotted owl (January Exclusions Rule); and instead as we proposed on July 20, 2021, we now exclude approximately 204,294 acres (82,675 hectares) in Benton, Clackamas, Coos, Curry, Douglas, Jackson, Josephine, Klamath, Lane, Lincoln, Multnomah, Polk, Tillamook, Washington, and Yamhill Counties, Oregon, under section 4(b)(2) of the Act. DATES: As of November 10, 2021, FWS is withdrawing the final rule published January 15, 2021, at 86 FR 4820, delayed on March 1, 2021, at 86 FR 11892, and further delayed on April 30, 2021 at 86 FR 22876. This rule is effective December 10, 2021. ADDRESSES: This final rule is available on the internet at https:// www.regulations.gov under Docket No. FWS–R1–ES–2020–0050 and at https:// www.fws.gov/oregonfwo. • Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at https:// www.regulations.gov under Docket No. FWS–R1–ES–2020–0050. • The coordinates from which the Service generated the maps are included in the decision file for the rulemaking and are available at https:// www.regulations.gov at Docket No. FWS–R1–ES–2020–0050 and at https:// www.fws.gov/oregonfwo. • The Geographic Information System data reflecting the revised critical SUMMARY: khammond on DSKJM1Z7X2PROD with RULES2 Executive Summary VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 Why we need to publish a rule. We need to publish a rule in order to exclude areas from northern spotted owl designated critical habitat under section 4(b)(2) of the Act. What this rule does. This rule revises the designation of critical habitat for the northern spotted owl by withdrawing the exclusion of approximately 3.4 million acres as set forth in the January Exclusions Rule, and excluding instead approximately 204,294 acres (82,675 hectares). Basis for this rule. Under section 4(b)(2) of the Act, 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. This revision to critical habitat excludes 204,294 acres (82,675 hectares) in Benton, Clackamas, Coos, Curry, Douglas, Jackson, Josephine, Klamath, Lane, Lincoln, Multnomah, Polk, Tillamook, Washington, and Yamhill Counties, Oregon, under section 4(b)(2) of the Act. The Service is excluding lands that are within the Harvest Land Base landuse allocation described by the U.S. Department of the Interior Bureau of Land Management (BLM) in two recently revised resource management plans (RMPs) for areas it manages in Oregon: The Northwestern Oregon and Coastal Oregon Record of Decision and Resource Management Plan (BLM 2016a) and the Southwestern Oregon Record of Decision and Resource Management Plan (BLM 2016b). The BLM consulted with the Service on the effects of those RMPs, and in our resulting Biological Opinion, we found the BLM’s proposed harvest over time of those areas allocated to the Harvest Land Base would not result in destruction or adverse modification of PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 northern spotted owl critical habitat (FWS 2016, pp. 626–703). We are also excluding lands that were previously managed by the BLM under the RMPs but were subsequently transferred in trust to certain Indian Tribes pursuant to Federal legislation. Previous Federal Actions On December 4, 2012, we published in the Federal Register (77 FR 71876) a final rule designating revised critical habitat for the northern spotted owl. For additional information on previous Federal actions concerning the northern spotted owl, refer to that December 4, 2012, final rule. In 2013, the December 4, 2012, revised critical habitat designation was challenged in court in Carpenters Industrial Council et al. v. Bernhardt et al., No. 13–361–RJL (D.D.C) (now retitled Pacific Northwest Regional Council of Carpenters et al. v. Bernhardt et al. with the substitution of named parties). In 2015, the district court ruled that the plaintiffs lacked standing. The D.C. Circuit Court of Appeals reversed and remanded, and the case remained pending before the district court. On April 13, 2020, we entered into a stipulated settlement agreement resolving the litigation. The settlement agreement was approved and ordered by the court on April 26, 2020, and the case dismissed. Under the terms of the settlement agreement, the Service agreed to submit a proposed revised critical habitat rule to the Federal Register that identified proposed exclusions under section 4(b)(2) of the Act by July 15, 2020, and to submit to the Federal Register a final revised critical habitat rule on or before December 23, 2020, or withdraw the proposed rule by that date if we determined not to exclude any areas from the designation under section 4(b)(2) of the Act. We delivered a proposed rule to the Federal Register on July 15, 2020, which was published on August 11, 2020 (85 FR 48487), proposing to exclude 204,653 acres (82,820 hectares) within 15 counties in Oregon under section 4(b)(2) of the Act. We opened a 60-day comment period on the August 11, 2020, proposed rule, which closed on October 13, 2020. On January 15, 2021, we published in the Federal Register the January Exclusions Rule (86 FR 4820), excluding approximately 3,472,064 acres (1,405,094 hectares) within 45 counties in Washington, Oregon, and California under section 4(b)(2) of the Act. Our August 11, 2020, proposed rule (85 FR 48487) and the January Exclusions Rule met the stipulations of the settlement agreement. E:\FR\FM\10NOR2.SGM 10NOR2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 The initial effective date of the January Exclusions Rule was March 16, 2021. On March 1, 2021, we extended the effective date of the January Exclusions Rule to April 30, 2021 (86 FR 11892). At that time, we also opened a 30-day comment period, inviting comments on the impact of the delay of the effective date of the January Exclusions Rule, as well as comments on issues of fact, law, and policy raised by that final rule. After considering comments received in response to our March 1, 2021, final rule delaying the effective date, on April 30, 2021, we again extended the effective date of the January Exclusions Rule to December 15, 2021 (86 FR 22876). On July 20, 2021, we published in the Federal Register a proposed revised critical habitat rule in which we proposed to withdraw the January Exclusions Rule, and to exclude 204,797 acres (82,879 hectares) within 15 counties in Oregon (86 FR 38246). The lands proposed for exclusion are the same lands we proposed for exclusion on August 11, 2020, with minor corrections in the number of acres. For the convenience of the reader, the list below provides some Federal Register citations of prior rulemaking documents pertaining to the northern spotted owl. This list is not a comprehensive list of all pertinent prior rulemaking documents; instead, it contains only those documents that are referenced frequently in this final rule: • Final rule to revise the designation of critical habitat: December 4, 2012, 77 FR 71876 • Proposed rule to revise the designation of critical habitat: August 11, 2020, 85 FR 48487 • Final rule to revise the designation of critical habitat: January 15, 2021, 86 FR 4820 (January Exclusions Rule) • Final rule to delay the effective date of the January Exclusions Rule and to request comments: March 1, 2021, 86 FR 11892 • Final rule to further delay the effective date of the January Exclusions Rule: April 30, 2021, 86 FR 22876 • Proposed rule to revise the designation of critical habitat: July 20, 2021, 86 FR 38246 Summary of Factors Affecting the Northern Spotted Owl Habitat loss was the primary factor leading to the listing of the northern spotted owl as a threatened subspecies in 1990 (55 FR 16114, June 26, 1990), and it continues to be a stressor on the subspecies due to the lag effects of past habitat loss, continued timber harvest, wildfire, and a minor amount from VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 insect and forest disease outbreaks. The most recent rangewide northern spotted owl demographic study (Franklin et al. 2021, entire) found that nonnative barred owls are currently the stressor with the largest negative impact on northern spotted owls through competition for resources. The study emphasized the importance of addressing barred owl management and also the importance of maintaining habitat across the range of the northern spotted owl regardless of occupancy to provide areas for recolonization and dispersal (Franklin et al. 2021, p. 18). The study also found a significant rate of population decline in northern spotted owls, a rate of 6 to 9 percent annually on 6 demographic study areas, and 2 to 5 percent annually on 5 study areas. Populations dropped to or below 35 percent of historical population numbers on 7 of the study areas, and to or below 50 percent on the remaining 3 areas over a 22-year period (1995–2017). On non-Federal lands, State regulatory mechanisms have not prevented the continued decline of nesting, roosting and foraging habitat of the northern spotted owl; the amount of northern spotted owl habitat on these lands has decreased considerably over the past two decades, including in geographic areas where Federal lands are lacking. On Federal lands, the Northwest Forest Plan has reduced habitat loss and allowed for the regrowth of northern spotted owl habitat; however, the combined effects of climate change, high-severity wildfire, and past management practices are changing forest ecosystem processes and dynamics. Summary of Comments and Recommendations In our July 20, 2021, proposed rule (86 FR 38246), we requested that all interested parties submit written comments by September 20, 2021. We also contacted appropriate Federal, State, and local agencies, and other interested parties and invited them to comment on the proposed rule. A newspaper notice inviting general public comment was published in The Oregonian on July 25, 2021, in the Eureka Times-Standard on July 30, 2021, and in The Olympian on August 6, 2021. We did not receive any requests for a public hearing. We noted in the proposed rule that comments previously submitted in response to our August 11, 2020, proposed revision to critical habitat for the northern spotted owl (85 FR 48487) did not need to be resubmitted, as we would consider them in producing this final rule. We also noted that parties who wanted PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 62607 comments they submitted in response to our March 1, 2021, rule extending the effective date of the January Exclusions Rule considered in this final rule should resubmit their comments. During the comment period, we received 48 new public comment submissions addressing the proposed withdrawal of the January Exclusions Rule and revised critical habitat designation, in addition to the 572 public comments submitted in response to our original August 11, 2020 proposal to exclude approximately 204,653 acres (82,820 hectares). In addition, one commenter resubmitted their comments in response to our March 1, 2021, rule. Among the submissions on the July 20, 2021, proposed rule were letters from organizations signed by thousands of individuals expressing general support for our proposed rule. Many comments were nonsubstantive in nature, expressing either general support for or opposition to our proposal to withdraw the January Exclusions Rule and exclude 204,797 acres (82,879 hectares), with no supporting information or analysis, or expressing opinions regarding topics not covered within the proposed revised critical habitat rule. We also received many detailed substantive comments with specific rationale for support of or opposition to specific portions of the proposed revised rule. Below, we summarize and respond to: The substantive comments on the July 20, 2021, proposed rule that were received by the September 20, 2021, deadline; substantive comments we received in response to the August 11, 2020, proposed rule; and resubmitted comments in response to our March 1, 2021, rule. Additionally, we provide explanations when our responses to comments received on our August 11, 2020, proposed rule differ substantially from responses we provided to those same comments in the January Exclusions Rule. Comments received were grouped into general categories and are addressed in the following summary. Comments on the Withdrawal of the January Exclusions Rule In order to facilitate the ability to cross-reference our previous responses to comments in the January Exclusions Rule, new and resubmitted comments received by September 21, 2021, on the proposed withdrawal of the January Exclusions Rule and the March 1, 2021, rule delaying the effective date of the January Exclusions Rule until April 30, 2021, are identified alphabetically; comments received on the proposed exclusions and other issues received in E:\FR\FM\10NOR2.SGM 10NOR2 62608 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations response to both the August 11, 2020, proposed rule and new comments received for the July 20, 2021, proposed rule are identified numerically and follow the same relevant grouping of issues as in the January Exclusions Rule. We did not receive comments concerning the proposed withdrawal of the January Exclusions Rule from Federal agencies, the States, or Tribes. khammond on DSKJM1Z7X2PROD with RULES2 Comments From Counties Jackson County (Oregon) submitted a comment letter expressing their support and concurrence with the comment letter submitted by the Association of O&C Counties (AOCC); see Comment (B) for a summary of those comments. Douglas County (Oregon) submitted a comment letter incorporating the American Forest Resource Council (AFRC)’s September 20, 2021, comment letter by reference and provided additional comments urging the Service not to rescind the January Exclusions Rule. Issues raised by Douglas County are incorporated and grouped with similar comments within this rule. Harney County (Oregon) submitted a comment letter urging the Service not to rescind the January Exclusions Rule. Issues raised by Harney County are incorporated and grouped with similar comments within this rule. Lewis and Skamania Counties (Washington) submitted a comment letter incorporating the September 20, 2021, comment letter of the AFRC by reference and provided other comments that are incorporated and grouped with similar comments within this rule. Klickitat County (Washington) submitted a comment letter incorporating Lewis and Skamania Counties’ comment letter by reference and provided other comments that are incorporated and grouped with similar comments within this rule. Public Comments Comment (A): Commenters that opposed any exclusions from critical habitat stated that retaining and expanding critical habitat and conserving mature forests will provide significant economic benefits to communities by providing ecosystem services such as: Clean water, climate stability, fire resilience, fish and wildlife, recreation, and other services that serve as a stabilizing force for community development. Our response: While the designation of critical habitat for the northern spotted owl does not, in and of itself, change the land-use allocation for the areas designated (which is ultimately the decision of the entity managing the land, such as the BLM), we agree that in VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 addition to its benefits for the northern spotted owl, conserving mature forests may provide economic benefits to communities through the ecosystem services described by the commenter. Although the final economic analysis (FEA) of the critical habitat designation for the northern spotted owl (IEc 2012) did not quantify these economic benefits, it qualitatively described the ancillary benefits of conservation measures that may be implemented to avoid the destruction or adverse modification of critical habitat. These benefits include public safety benefits, such as timber management practices that reduce the threat of catastrophic wildfire, drought, and insect damage; improved water quality that may reduce water treatment costs and provide human or ecological health benefits; aesthetic benefits of a more natural forest landscape that results in increased recreational use or increases the value of neighboring properties; and carbon storage that may ameliorate the impacts of climate change. Comment (B): The AOCC, representing the interests of counties in western Oregon, as well as other commenters, submitted comments opposing the withdrawal of the January Exclusions Rule, citing the following rationales: (i): The AOCC and others commented that the 2012 critical habitat designation negatively impacted the ability of BLM to manage certain former railroad grant lands in Oregon revested to the United States in 1916 (O&C lands) for their statutory purposes under the Oregon and California Revested Lands Sustained Yield Management Act of 1937, Public Law 75–405 (O&C Act) and reduced timber harvest and associated receipts shared with counties. They asserted that the 2012 designation caused BLM to manage these lands under their revised RMPs for the benefit of the northern spotted owl instead. Our response: The BLM developed its 2016 RMPs considering a variety of authorities and requirements, including the O&C Act, which addresses the management of O&C lands revested to the Federal Government under the Chamberlin-Ferris Act of 1916 (39 Stat. 218) and other authorities. As discussed further in response to Comment 12, we acknowledge that there is ongoing litigation regarding BLM’s authorities and obligations under the O&C Act and the Endangered Species Act. Once that litigation is finally resolved, BLM will have to determine what, if any, changes to make to its management of the O&C lands under applicable law. Until that time, however, the BLM will, where appropriate, utilize its authorities in PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 furtherance of the purposes of the Endangered Species Act. See also our response to Comment (6). See our response to Comments (21) and (22) for a discussion on the economic impacts of the designation on timber harvest. (ii): The AOCC commented that the designation of critical habitat on O&C lands is contrary to recent rulings that recognize the statutory requirement that timber on O&C lands is to be ‘‘sold, cut and removed’’ according to sustained yield principles and cannot be allocated to reserves, and that section 7 consultation requirements under the Act do not apply to the nondiscretionary obligation of BLM to manage these lands under the principles of sustained yield. Our response: See our responses to Comments (6), (12), and (25b) below. (iii): The AOCC commented that the 2012 critical habitat designation was flawed in that it did not identify or ‘‘actually’’ map habitat and that the methods used resulted in vast areas being designated as critical habitat that do not currently have the attributes of northern spotted owl habitat and therefore do not meet the statutory requirements for designation as critical habitat. Our response: This and similar comments that directly address concerns about our final rule designating critical habitat in 2012 were raised and addressed in the rulemaking for the 2012 rule, and we refer to our responses to such issues in that rulemaking, see e.g., Public Comments on the Modeling Process at 77 FR 71876, December 4, 2012; p. 72020. We address here only those comments relevant to the revisions proposed in July 20, 2021. (iv): The AOCC commented that the designation of critical habitat in 2012 created preserves that prevent sustained yield management and that actively managing critical habitat to support species recovery is not the equivalent of sustained yield management under the O&C Act, further citing the court ruling in Headwaters, Inc. v. BLM, Medford Dist., 914 F.2d 1174 (9th Cir. 1990) holding that withdrawing lands from sustained yield timber production for the benefit of wildlife is not a use recognized in the O&C Act and is inconsistent with sustained yield management. On this basis, the commenter seeks additional exclusions from the designated critical habitat. Our response: Critical habitat designations do not establish specific land-management standards or prescriptions, nor do designations affect land ownership or establish a refuge, wilderness, reserve, preserve, sanctuary, or any other conservation area where no active land management occurs. See our E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations responses to Comments (6), (12), and (25b) below. (v): The AOCC commented that ‘‘creative sustained yield management’’ can contribute substantially to the habitat needs of the northern spotted owl without the limitations imposed by a critical habitat designation and that sustained yield management to meet both the subspecies’ needs and the O&C Act requirements has not been considered in BLM and U.S. Department of Agriculture, Forest Service (USFS) management plans, northern spotted owl recovery plans, and critical habitat designations. They provided examples of sustained yield strategies that could be considered should the BLM be required to revise their RMPs due to a pending court ruling and suggested that removing critical habitat is a necessary first step. Our response: As indicated by the comment, complying with and achieving the goals of the O&C Act and the Endangered Species Act can be an extraordinarily complicated task in the forest management arena. The BLM and USFS are responsible for managing O& C lands, and they do so by adopting land management plans that provide guidance and direction for subsequent management actions on those lands. Recovery plans under the Endangered Species Act provide recommendations for management actions that meet the recovery needs of listed species; they are not intended to guide compliance with other statutory requirements. Critical habitat designations, similarly, are focused on the needs of the species but take economic and other impacts into consideration. The Service expressly considered the role of the O&C lands when revising critical habitat in 2012, but did not consider excluding them at that time because we concluded they were essential to the conservation of the subspecies (77 FR 71876, December 4, 2012; p. 72007). We expressly consider in this rule excluding the O&C lands (outside of the BLM’s Harvest Land Base lands) from the designation based on requests from the commenter and others, but for the reasons discussed in our weighing analysis, have determined not to do so (see Consideration of Impacts Under Section 4(b)(2) of the Act). We note, however, that the BLM and USFS have proposed harvests from O&C lands within designated critical habitat, consulting with the Service on those actions. To date, we have reviewed such proposals on thousands of acres and have not found that the proposals result in the destruction or adverse VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 modification of that habitat under the Act. The critical habitat designation benefits the northern spotted owl as a landscape-scale conservation strategy that identifies areas on the landscape that may require special management considerations or protection. In addition, the designation informs management practices that contribute to the recovery needs of the subspecies. In both the critical habitat designation, and in site-specific consultations, the Service has supported active forest management, where appropriate, to provide for some timber harvest while also conserving habitat for the northern spotted owl and reducing the risk of wildfire. (vi): The AOCC commented that all O&C lands should be excluded from the critical habitat designation because the benefits of exclusion outweigh the costs and that there is no benefit to including these lands in the designation because the O&C Act ‘‘mandates for sustained yield production control over the ESA section 7(a)(2) consultation.’’ Additionally, they commented that the designation has had significant adverse economic impacts on the counties, affecting their ability to provide public services and has resulted in mill closures and job losses. Our response: As described elsewhere in this document, some timber harvest does occur within critical habitat, and total annual timber harvest levels on Federal lands in the range of the northern spotted owl have actually increased since the revision of critical habitat in 2012; see our response to Comments (21b and 25a). See also our responses to Comments (6 and 25) concerning O&C lands and our weighing of the benefits of including O&C lands in the critical habitat designation versus excluding them in Consideration of Impacts Under Section 4(b)(2) of the Act. (vii): The AOCC commented that the economic impact of the critical habitat designation has not been properly evaluated by the Service and that these impacts are not solely attributable to the listing decision. Our response: See our response to Comment (20) below concerning our review of the FEA (IEc 2012) and our regulation on how economic analyses are conducted. Comment (C): The AFRC submitted comments in support of the January Exclusions Rule and expressed support for the Service’s proposal to exclude the BLM’s Harvest Land Base lands and lands transferred in trust to the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 62609 (CTCLUSI) and the Cow Creek Band of Umpqua Tribe of Indians (CCBUTI). The AFRC resubmitted comments they previously provided on our 2007, 2008, and 2012 critical habitat rules. We previously responded to those comments in our final respective critical habitat rules; see 73 FR 47326, August 13, 2008, and 77 FR 71876, December 4, 2012. The AFRC’s comments on our August 11, 2020, proposed rule (85 FR 48487), our March 1, 2021, rule delaying the effective date of the January Exclusions Rule (86 FR 11892), and our July 20, 2021, proposed rule (86 FR 38246) are summarized below. Comments submitted by AFRC that were similar to comments received on the August 11, 2020, proposed rule have been incorporated into the comment sections following this section. Several counties incorporated AFRC’s comments by reference. In some instances, other commenters submitted comments similar to the comments submitted by AFRC; we include those comments in the following summarized comments. (i): The AFRC commented that the August 11, 2020, proposed revised critical habitat rule gave notice to the public that additional areas may be excluded in the final rule and that the Service (and Secretary) preserved broad discretion to make additional exclusions such that there was no ‘‘logical outgrowth’’ problem in the change from the proposed to final exclusions in the January Exclusions Rule. Our response: We requested comments in our August 11, 2020, proposed rule on the following: Additional areas, including Federal lands and specifically National Forest System lands, that should be considered for exclusion under section 4(b)(2) of the Act and any probable economic, national security, or other relevant impacts of excluding those areas. We also requested comments on any significant new information or analysis concerning economic impacts that we should consider in the balancing of the benefits of inclusion versus the benefits of exclusion in the final determination. While our request indicated that we might consider additional exclusions, the scale of the final exclusions was much larger and broader than what the public could reasonably anticipate. In our proposed rule, we identified 204,653 acres (82,675 hectares) across 15 counties and 26 critical habitat subunits in Oregon for potential exclusion; the January Exclusions Rule increased the acres excluded by nearly 17-fold. The final rule included extensive areas that were not mentioned in the proposed rule, and for which no E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62610 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations details were provided in the January Exclusions Rule, within the States of Washington and California, 45 counties across the range, and 55 critical habitat subunits across the designation. In response to our March 1, 2021, rule delaying the effective date of the January Exclusions Rule, we received many comments that the January Exclusions Rule was not a logical outgrowth of the August 11, 2020, proposed rule, including comments from natural resource agencies in Washington and California opposing the exclusions and expressing that they were not aware that exclusions were being considered in their respective States. Additionally, the Washington Department of Fish and Wildlife comments expressed surprise at the 765,175 acres (309,655 hectares) excluded in their State under the January Exclusions Rule. Further, the California Department of Fish and Wildlife commented in response to the March 1, 2021, rule that the January Exclusions Rule did not identify lands excluded in their State with enough specificity to provide a meaningful analysis and comment. Conservation groups and other members of the public commented in response to the March 1, 2021, rule that they were not given the opportunity to present arguments and facts contrary to the vast increase in exclusions as presented in the January Exclusions Rule. Additionally, the January Exclusions Rule also included new rationales for the exclusions that were not identified in the August 11, 2020, proposed revised critical habitat rule (85 FR 48487). These included generalized assumptions about the economic impact of both the listing of the northern spotted owl and the subsequent designation of areas as critical habitat; the stability of local economies and protection of the local custom and culture of counties; the presumption that exclusions would increase timber harvest and result in longer cycles between harvest; that timber harvest designs resulting from the exclusions would benefit the northern spotted owl, and that the increased harvest would reduce the risk of wildfire; and that northern spotted owls may use areas that have been harvested if some forest structure was retained. The public did not have an opportunity to review or comment on these new rationales. Further, the January Exclusions Rule failed to reconcile a change in our prior findings regarding areas managed under the O&C Act. In our 2012 rule revising the critical habitat designation for the owl, we found that areas managed under the O&C Act were essential to the VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 conservation of the subspecies and that not including some of these lands in the critical habitat network resulted in a significant increase in the risk of extinction. Commenters stated that the exclusion of these lands in the January Exclusions Rule also conflicted with our December 15, 2020, finding that the northern spotted owl warrants reclassification to endangered status given the exacerbation of the threats it faces. We maintain that the public should have had an opportunity to comment on the expanded critical habitat exclusions made in January in light of the information included in the December 15, 2020, finding and supporting species report (85 FR 81144, FWS 2020, p. 83), which were published just 3 weeks before the January Exclusions Rule. In summary, it is clear from the public comment record that not being afforded an opportunity to review and provide comment on the much larger and broader areas excluded and the rationale for those exclusions, particularly in light of the December 15, 2020, finding that the northern spotted owl warranted reclassification to endangered status, was considered by the public a lack of transparency and inability to participate in the public process as required under the Administrative Procedure Act. While our proposed August 11, 2020, rule and exclusions did signal the potential that the final rule could be different, on reconsideration we find that it is more prudent and transparent to conclude that an updated proposed rule and an additional opportunity to comment would be warranted were we to seek to put the January Exclusions Rule into effect. (ii): The AFRC commented that the Service’s modeling of extinction risk in the 2012 critical habitat designation discounted millions of acres of potentially suitable habitat in national parks and designated wilderness that are not included in the designation and assert that our section 4(b)(2) analysis is flawed because the benefits these areas provide was not considered. The AFRC further commented that our assertion that these areas are relatively small and widely dispersed across the range of the northern spotted owl is inaccurate as these lands cover over 7 million acres (2.8 million hectares). Our response: We included Congressionally Reserved Lands (e.g., designated wilderness and national parks) in our modeling analyses of the critical habitat network and extinction risk based on the assumption that habitat quality in these areas would be retained whether they were designated as critical habitat or not (Dunk et al. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 2012, pp. 19, 57). Our section 4(b)(2) analysis in the 2012 critical habitat rule considered the benefits of including these lands within the critical habitat designation and found that these areas are essential to the conservation of the northern spotted owl. However, unlike other Federal and State lands that have multiple use mandates that include commercial harvest of timber in the range of the spotted owl, such as National Forests, State Forests, and public-domain forests managed by the BLM, these reserved natural areas are unlikely to have uses that are incompatible with the purposes of critical habitat because the primary habitat threat to spotted owl critical habitat—commercial timber harvest—is generally prohibited on these lands. These natural areas are managed under explicit Federal laws and policies consistent with the conservation of the northern spotted owl, and there is generally little or no timber management beyond the removal of hazard trees or fuels management to protect structures, roads, human safety, and important natural attributes. Accordingly, we found that a critical habitat designation of these reserved areas in the range of the spotted owl would provide no additional regulatory benefits beyond what is already on these lands due to their permanent status as protected lands and, importantly, the fact that commercial timber harvest is generally not permitted on these lands under Federal and State law and policy. Further, we found that the designation of these reserve areas would confer little additional educational benefits associated with the conservation of the spotted owl, as these educational messages are already being communicated in many of these areas under existing programs. In sum, although national parks and designated wilderness were excluded under section 4(b)(2) of the Act from the 2012 critical habitat designation, the conservation value of these lands was considered in our analysis and modeling of which lands were essential to the conservation of the northern spotted owl and in the design of a critical habitat network. Regarding the size and distribution of national parks and designated wilderness, we initially identified and proposed to include approximately 2.6 million acres (1 million hectares) of these lands in the 2012 proposed critical habitat revision because they contained northern spotted owl habitat and were found to be essential to the conservation of the subspecies. These 2.6 million acres (1 million hectares), which we identified as habitat essential to the conservation of the northern spotted E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations owl, are the areas we describe as relatively small and widely dispersed, versus the entire 7 million acres (2.8 million hectares) as asserted by the AFRC. However, as we noted at the time of listing the northern spotted owl in 1990, many of these areas are also typically high-elevation lands and it is unlikely that the owl populations would be viable if their habitat were restricted to these areas alone (55 FR 26114, June 26, 1990; p. 26177). Additionally, as we stated in our July 20, 2021, proposed revision, some of these areas are widely dispersed and cannot be relied on to sustain the subspecies unless they are part of and connected to a wider reserve network as provided by the 2012 critical habitat designation (77 FR 71876, December 4, 2012). (iii): The AFRC commented that we stated that the barred owl is not the primary threat to northern spotted owls and that this is contradicted by the best available science. The AFRC and several counties stated that there is little to no benefit of including areas occupied by barred owls because the two species cannot coexist and the presence of barred owls makes these areas unsuitable for northern spotted owls. The AFRC commented that our conclusion that habitat availability is as important as managing the threat of barred owls is inaccurate. Our response: In our July 20, 2021, proposed rule, we stated that the large additional exclusions made in the January Exclusions Rule were premised on inaccurate assumptions about the status of the owl and its habitat needs particularly in relation to barred owls. The large additional exclusions were based in part on an assumption that barred owl control is the fundamental driver of northern spotted owl recovery, when in fact the best scientific data indicate that protecting latesuccessional habitat also remains critical for the conservation of the spotted owl (FWS 2020, p. 83). We did not intend this statement to be read to mean that the barred owl is not the primary threat to northern spotted owls. We meant that recovery of the northern spotted owl will require management of the barred owl as well as continued habitat protections. See our response to Comment (13) below for a discussion on the threat of barred owls to northern spotted owls and the importance of maintaining habitat in light of competition with barred owls. Although the northern spotted owl does not coexist well with the invasive barred owl and the two species have a high degree of overlap in their habitat preferences (Wiens et al. 2021, p. 2), their presence does not alter the VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 suitability of the habitat to support northern spotted owls. In fact, the availability of suitable forest conditions and addressing habitat loss is needed to work in concert with barred owl management to reduce population declines of northern spotted owls (Wiens et al. 2021, pp. 1, 2). (iv): The AFRC commented that the Service’s rationale for withdrawing the January Exclusions Rule based on the need for biological redundancy is flawed because critical habitat exacerbates the wildfire threat to the northern spotted owl and communities by inhibiting active forest management (other commenters, including several counties, reiterated this assertion that critical habitat conflicts with active management aimed at reducing wildfire risk). Specifically, the AFRC states that forest treatments that remove canopy cover to such an extent that habitat is ‘‘downgraded’’ (e.g., habitat that supports nesting, roosting, and foraging is removed and the area can only support dispersal) are avoided or deferred due to regulatory constraints such as section 7 consultation requirements on critical habitat for projects that would reduce the risk of wildfire in dry forest ecosystems. The AFRC provided examples of projects that they assert were altered due to the critical habitat designation or litigated and delayed due to issues related to critical habitat. Our response: See our response to Comment (27a) regarding perceived conflicts between the critical habitat designation and active forest management to address risk of wildfire in the dry forest ecosystem. See also our response to Comment (9) regarding the need for biological redundancy within the critical habitat designation. In regard to the specific prescriptions for forest management treatments in dry forest ecosystems within critical habitat, in the section on Special Management Considerations or Protection, the 2012 critical habitat rule referred to the guidance discussed in the Revised Recovery Plan for the Northern Spotted Owl (Recovery Plan) (FWS 2011, pp. III– 11 to III–39). The Recovery Plan recommended active forest management with the goal of maintaining or restoring forest ecosystem structure, composition, and processes that would be sustainable and provide resiliency under current and future climate conditions. The Recovery Plan acknowledged that shortterm impacts to northern spotted owls and their habitat may occur due to these actions, but they may be beneficial in the long-term if they reduce future losses from disturbance events, such as wildfire, and improve resiliency to PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 62611 climate change (FWS 2011, p. III–14). Further, the Revised Recovery Plan for the Northern Spotted Owl states that ‘‘tradeoffs that affect spotted owl recovery will need to be assessed on the ground, on a case-by-case basis with careful consideration given to the specific geographical and temporal context of a proposed action’’ and that specific prescriptions to meet the goals of the recovery plan vary across forest types and the landscape (FWS 2011, p. III–14). Section 7 consultations conducted on forest management actions within critical habitat provide the avenue for these assessments and are one of the benefits of designating these areas. In response to projects being altered due to the 2012 critical habitat designation, the examples that AFRC provided were for projects that were consulted on prior to the critical habitat designation but had not yet been implemented when the designation was finalized. Project modifications and additional time to address the effects to the physical and biological features of critical habitat and to consider the special management recommendations and protections discussed in the recently published critical habitat designation is a reasonable expectation for such projects. In response to projects being avoided or deferred within critical habitat, contrary to AFRC’s assertion, projects to reduce the risk of wildfire continue to be consulted on with positive outcomes for the subspecies and the ecosystem while allowing for timber harvest that meets Federal agency timber production purposes; see our response to Comment (27a) for a discussion of recent consultations. The decision on whether to propose an action that will need to undergo section 7 consultation, however, is under the purview of the Federal land management agencies. As we noted in the 2012 critical habitat rule, specifically prescribing such management is beyond the scope or purpose of the critical habitat designation, but should instead be developed by the appropriate land management agency at the appropriate land management scale (e.g., National Forest or BLM District) (USDA 2010, entire; Fontaine and Kennedy 2012, p. 1559; Gustafsson et al. 2012, pp. 639– 641, Davis et al. 2012, entire) through the land managing agencies’ planning processes and with technical assistance from the Service, as appropriate (77 FR 71876, December 4, 2012; p. 71882). In response to the comment that litigation associated with critical habitat designations demonstrates that the designation conflicts with forest E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62612 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations management, we note that historically Federal forest management projects are frequently the subject of litigation regardless of whether they occur within critical habitat or not. Litigation on these projects does not necessarily indicate that critical habitat conflicts with forest management. There are myriad reasons and issues that parties seek to litigate Federal forest management actions; because they do so is not a basis to conclude that the critical habitat designation is flawed. (v): The AFRC commented that northern spotted owl critical habitat restricts timber harvest, citing the USFS’ recent Bioregional Assessment (USFS 2020), which states that timber production and restoration often conflict with habitat protection objectives and provides an example of reduced timber harvest on USFS matrix lands due to critical habitat designation. AFRC further commented that critical habitat has the effect of altering management direction on USFS matrix lands based on the USFS recommendation in the Bioregional Assessment to align their reserve allocations with the 2012 critical habitat designation. AFRC asserts that a conflict in management of USFS forest lands exists such that managing hazardous fuel loads that improve forest health and resilience to wildfire conflicts with maintaining vegetative cover that is needed for northern spotted owls. Our response: The USFS Bioregional Assessment (Assessment) (USFS 2020) is one of the initial steps the USFS has taken to address management plans that need to be updated. Most of the land management plans in the area analyzed under the Assessment were written about 30 years ago and need to be updated to reflect current science and social, economic, and ecological challenges across this area (USFS 2020, p. 10). The Assessment focuses on the most compelling issues across the landscape that need updating, including species’ habitat needs and the need to address climate change, severe wildfire risk, and forest health. The Assessment indicates that timber harvest is no longer emphasized on USFS matrix lands that were designated as critical habitat and expresses the need to align their reserve allocations with the 2012 critical habitat designation (USFS 2020, pp. 60, 63). However, the Assessment further states that ‘‘better realignment of the late-successional reserve network with critical habitat could adjust the matrix lands available for ecological treatments, which might provide additional timber outputs’’ (USFS 2020, p. 74). Additionally, the Assessment states that ‘‘[b]etter alignment is needed VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 between designated critical habitat for spotted owls and the late-successional old-growth portion of the latesuccessional reserve network; this could help simplify management direction and better protect high-quality habitat for owls and other old growthdependent species, such as marbled murrelet. In addition to protecting these habitats, management direction that allows active management to restore and improve ecosystem resilience could help conserve and develop northern spotted owl habitat in the long term’’ (USFS 2020, p. 63). The Assessment expresses an urgent need to update their land management plans to modify desired conditions associated with dry forest ecosystems and to allow for active management in fire-prone areas to restore ecological integrity and habitat (USFS 2020, pp. 63, 71, 76); active management to address these needs aligns with both the Recovery Plan for the Northern Spotted Owl and the 2012 critical habitat designation. Finally, the Assessment recognizes that ‘‘social values related to land management have begun to shift toward recognition of the broad benefits associated with our natural resources and the importance of balancing resource protection with timber production’’ (USFS 2020, p. 62). We acknowledge that the designation of critical habitat on USFS matrix lands can inform where timber harvest is emphasized as the USFS considers the special management considerations and protections discussed in the 2012 critical habitat designation. Education and providing information are important functions of critical habitat designations, especially when designing and implementing forest management projects on public lands. However, the Service continues to advocate for active management of forests to reduce wildfire risks as described in our 2012 critical habitat rule and the Recovery Plan. We designated USFS matrix lands as critical habitat where they contain habitat that is essential to the subspecies’ conservation (77 FR 71876, December 4, 2012; p. 71895). See our response to Comment (27a) regarding perceived conflicts between the critical habitat designation and active forest management to address the risk of wildfire in the dry forest ecosystem. (vi): The AFRC commented that our July 20, 2021, proposed revised critical habitat rule fails to consider the contribution that management plans have in addressing connectivity across the landscape and the current level of connectivity provided by management since the NWFP was adopted. The PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 AFRC stated that the Service acknowledged in the Recovery Plan that the NWFP provides direction to address connectivity and that both the reserve and matrix land-use allocations would contribute to connectivity. AFRC further stated that the USFS maintains dispersal habitat across their land-use allocations, that dispersal is not a limiting factor, and that there is far more dispersal habitat than is needed. Our response: See our response to Comment (9) regarding the need for biological redundancy within the critical habitat designation and our responses to Comments (25c–e) regarding our consideration of management plans. We evaluate effects of Federal actions on northern spotted owl dispersal habitat during the section 7 consultation process at a larger scale than effects of the action to nesting, roosting, and foraging habitat. This approach is to ensure that dispersal habitat is providing for connectivity across the landscape between large blocks of nesting, roosting, and foraging habitat that reproducing northern spotted owls prefer when available in an area. The amount of dispersal habitat varies across the designation and is limited in some geographic areas such as between the Coast Range and Cascade Range in southern Oregon (FWS 2020, pp. 28–32). The biological redundancy included in the design of the critical habitat network allows for some timber harvest and was included to address the unpredictability of the extent of natural disturbances such as wildfire. (vii): The AFRC commented that ‘‘mere connectivity is not an element of habitat or critical habitat, and effects only on connectivity cannot constitute ‘adverse modification’ in violation of the ESA,’’ citing Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1262 (9th Cir. 2017) and that areas that provide only connectivity, therefore, cannot be designated as critical habitat. Our response: We do not agree with the commenter’s interpretation of the cited case, which involved effects of a proposed Federal action to the desert tortoise. There, the project effects challenged were not to designated critical habitat, but rather to habitat that provided connectivity between designated critical habitat units. The Service concluded that although the project affected connectivity habitat for the tortoise, those effects did not adversely modify critical habitat. Plaintiffs asserted that the Service was obligated to evaluate the effect of that connectivity loss as an ‘‘adverse modification’’ to critical habitat. The Service appropriately considered the effects of the potential loss of E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations connectivity in examining whether the Federal action jeopardized the species, but reasonably concluded that alterations to habitat that is not designated as critical habitat did not ‘‘adversely modify’’ that critical habitat. The court simply affirmed this rational approach; the court’s decision does not stand for the proposition that designated critical habitat cannot include the characteristics of connectivity. To the contrary, the court recognized the well-established scientific principles of connectivity (‘‘[c]onnectivity is the ‘‘degree to which population growth and vital rates are affected by dispersal’’ and ‘‘the flow of genetic material between two populations.’’). Connectivity promotes stability in a species by ‘‘providing an immigrant subsidy that compensates for low survival or birth rates of residents’’ and ‘‘increasing colonization of unoccupied’’ habitat,’’ Defs. of Wildlife v. Zinke at 1254. This case is distinguishable from the circumstances of the northern spotted owl in that the Service has expressly designated ‘‘connectivity’’ habitat as critical habitat, i.e., the dispersal habitat. For the northern spotted owl, a project that proposes significant impacts to designated critical dispersal habitat that impedes connectivity between large blocks of designated critical habitat used for nesting, roosting, or foraging could result in a conclusion that the action would destroy or adversely modify critical habitat. Although habitat that allows for dispersal may currently be marginal with insufficient characteristics to support nesting, roosting, or foraging, it provides an important linkage function among blocks of higher-quality habitat both locally and over the northern spotted owl’s range that is essential to its conservation. Juvenile dispersal is a highly vulnerable life stage for northern spotted owls and enhancing the survivorship of juveniles during this period could play an important role in maintaining stable populations of northern spotted owls. Dispersal habitat is habitat that both juvenile and adult northern spotted owls use when looking to establish a new territory. Both dispersing subadults and nonterritorial birds (often referred to as ‘‘floaters’’) are present on the landscape and require suitable habitat to support dispersal and survival until they recruit into the breeding population; this habitat requirement is in addition to that already used by resident territorial owls. Successful dispersal of northern spotted owls is essential to maintaining genetic and demographic connections among VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 populations across the range of the subspecies and population growth can occur only if there is adequate habitat in an appropriate configuration to allow for the dispersal of owls across the landscape; therefore, the Service included dispersal habitat as part of the critical habitat designated for the northern spotted owl. (viii): Comments submitted by AFRC (and incorporated by others) include assertions that the Service included within the 2012 critical habitat designation areas that are not ‘‘habitat’’ for the northern spotted owl, in contravention of the Supreme Court’s subsequent ruling in 2018 that critical habitat designated under the Act must be habitat for the species in the first instance (Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv., 139 S. Ct. 361, 368 (2018) (‘‘Weyerhaeuser’’). These commenters assert that areas that are not ‘‘habitat’’ for the owl within the critical habitat designation should be excluded by the Secretary under section 4(b)(2). Our response: As we explain in more detail in the Background section below, we reviewed our 2012 critical habitat rule for consistency with our new regulation defining ‘‘habitat’’ following the Weyerhaeuser decision, and demonstrate why all of the designated critical habitat is habitat for the northern spotted owl. We also respond to comments seeking a wide variety of exclusions based on general assertions that areas are not ‘‘habitat’’ for the northern spotted owl presently, explaining why the assumptions underlying these assertions are incorrect as matter of fact or law; see responses to Comments (26–28). Comment (D): The AFRC and several counties commented on several other issues pertaining to our March 1, 2021, delay rule; April 30, 2021, delay rule; and proposed withdrawal of the January Exclusions Rule as summarized below: (i): Commenters stated that the Service predetermined to issue a further delay rule prior to publishing the March 1, 2021, delay rule. Our response: As described in the March 1, 2021, delay rule, the Service was concerned about the potential effects of the January 2021 exclusions to impede conservation of the northern spotted owl, and sought comments on the issues of fact, law, and policy regarding the January Exclusions Rule. We noted that an additional delay of the effective date might be warranted and expressly sought comment. As the first delay rule would expire by April 30, and it can take some time to develop and obtain publication of rules in the Federal Register, it was appropriate for the Service to prepare a draft of such a PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 62613 second rule while the first was being published. That the Service took steps to do so is not a ‘‘predetermination.’’ Agencies frequently prepare drafts of rules and change them based on internal and public comments. Any decision to move forward with a second delay rule is not final until authorized by the Service and published in the Federal Register. (ii): Commenters stated that the delay rule is unlawful and contrary to the Administrative Procedure Act and failed to effect a valid amendment of the January Exclusions Rule, which was due to go into effect on March 16, 2021. Commenters stated that the Service’s issuance of the March 1, 2021, delay rule without providing an opportunity for public notice and comment was in violation of the Administrative Procedure Act. Commenters further stated that the April 30, 2021, rule delaying the effective date of the January Exclusions Rule until December 15, 2021, was issued after the first delay rule expired and the January Exclusions Rule had gone into effect. Our response: As the commenter noted, issues concerning the lawfulness of the delay rule are the subject of litigation brought against the Service on these topics in which they are plaintiffs, see American Forest Resource Council v. Williams, No. 1:21–cv–00601–RJL (D.D.C). The Service has responded to these assertions in briefs before the court. In summary, the Service’s decision to delay the implementation of the January Exclusions Rule and ultimately to allow for this additional rulemaking to withdraw it, was consistent with all applicable laws. For further details, please see our responsive briefs in that litigation, available in our record for this rulemaking. (iii): Commenters stated that we cannot withdraw a rule that has been published; it must instead be repealed, rescinded, or amended. Based on this rationale, commenters stated that we must redesignate in a new rulemaking the acres that were excluded in the January Exclusions Rule if we are to retain them in the critical habitat designation and that we must complete a new economic analysis for those redesignated lands. Our response: Whether or not the Service uses the term ‘‘withdraw, repeal, or rescind’’ does not alter the result of this final rule—the exclusions finalized (but not in effect) in the January rule are ‘‘withdrawn, repealed, or rescinded’’ by this final rule. Because this final rule to take this action was developed with notice and comment rulemaking, ‘‘repeal’’ would be E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62614 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations consistent with the language used in the Administrative Procedure Act for the notice and comment rulemaking here. However, as the January Exclusions Rule was final, but never went into effect, ‘‘withdraw’’ is similar to situations in which a rule is developed but never went into effect as cited by the commenters. In any event, as the January Exclusions Rule never went into effect, the Service was not obligated to ‘‘redesignate’’ the critical habitat areas already designated and unchanged since the 2012 critical habitat rule. (iv): Commenters stated that withdrawing the January Exclusions Rule violates the terms and intent of the settlement agreement in Carpenters Industrial Council et al. v. Bernhardt et al., No. 13–361–RJL (D.D.C.) (retitled Pacific Northwest Regional Council of Carpenters et al. v. Bernhardt et al. with the substitution of named parties before being dismissed). Our response: The commenter does not dispute that the Service completed the production of a proposed and final rule per the timeline in the settlement agreement, as extended. Rather, the commenter asserts that because of the alleged flaws in the delay rules, the withdrawal of the January Exclusions Rule violates the settlement agreement terms and intent. The Service addresses the assertions regarding the delay rules above. As to the ‘‘intent’’ of the settlement agreement, the Service is here finalizing a revision to the 2012 critical habitat rule excluding additional areas under authority of section 4(b)(2). This final rule is not the broad exclusions that the commenters sought, but this does not mean the Service violated either the intent, let alone the terms, of the settlement agreement with the litigating parties. The Service did not (nor could it have) pre-committed in a settlement agreement to ultimately determine a set of exclusions in advance of public notice and comment rulemaking. Comment (E): Douglas County commented that exclusion of O&C lands would not result in extinction of the northern spotted owl and that exclusion of these areas would result in a stronger partnership with local forest managers. Our response: See our consideration of the benefits of partnerships and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act. Comment (F): Commenters stated that our reevaluation of the exclusions in the January Exclusions Rule is counter to the finding the Secretary made in 1992 that ‘‘overall effects on the Northwest timber industry and to some counties in particular, were potentially severe and VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 that further consideration should be given to excluding additional acreage from the final designation to reduce the overall economic impacts that may result from the designation of critical habitat.’’ Our response: Under section 4(b)(2) of the Act, 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 that determination, the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor; this discretion is not limited by previous determinations such as we made in 1992. In this rulemaking, the Secretary has exercised her discretion to exclude certain areas and not others from the critical habitat designation after weighing these benefits. Comment (G): Conservation groups commented that to the extent the January Exclusions Rule relied on economic impacts, recent research (Ferris and Frank 2021) shows that the economic impacts of the 2012 critical habitat designation have been overstated and are instead consistent with what the Service found at that time. Our response: Ferris and Frank (2021) discuss the impact that the 1990 listing of the northern spotted owl and subsequent critical habitat designation in 1992 had on employment in the Lumber and Woods Products Sector between 1984 and 2000. The authors found that the impacts to employment in this sector were similar to what the government projected at the time of listing of the northern spotted owl and were not as large as projected in industry studies. Their study, however, did not focus on the incremental impacts of designating critical habitat for the northern spotted owl above those impacts attributed to listing, which is how the Service assesses the economic effect of critical habitat designations. Comments Specific to Exclusions Comments From Federal Agencies Comment (1): The USFS stated that, as critical habitat in southern Oregon and northern California becomes more fire prone, as evidenced by the 2020 fire season, the USFS continues to be concerned for the persistence of the northern spotted owl in the Pacific Northwest. The USFS encouraged connectivity between existing critical PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 habitat units. In particular, the USFS commented that the Service should consider the probability of wildfire events, the effect of climate change, and projected wildfire behavior as tools for determining where critical habitat designations should be revised throughout the range of the northern spotted owl. Additionally, on December 15, 2020, after the comment period closed on our August 11, 2020, proposed rule, we received a comment letter from the Under Secretary, Natural Resources and Environment, Department of Agriculture, supporting Interior’s efforts to revise the northern spotted owl critical habitat designation because of difficulties encountered by the USFS in achieving its statutory mission for managing the National Forests. The letter discussed the devastation to the spotted owl habitat and to other property caused by wildfire in general, using the 2020 wildfire season as an example. The letter requested that the USFS and the Service work together in protecting the northern spotted owl and lowering the risks of catastrophic wildfire. Our response: In response to the comment submitted by the Department of Agriculture, it is important to note that the Service works closely with the USFS and other land managers to both recover the northern spotted owl and lower the risk of catastrophic wildfire. For example, the Service has completed multiple consultations under section 7 with Federal agencies on fuels reduction, stand resiliency, and pine restoration projects in dry forest systems within the range of the northern spotted owl. Those actions have included treatment areas that reduce forest canopy to obtain desired silvicultural outcomes, lower potential wildfire severity, and meet the need for timber production. They also promote ecological restoration and are expected to reduce future losses of spotted owl habitat and improve overall forest ecosystem resilience to climate change. We have concluded in these consultations that the actions do not destroy or adversely modify critical habitat as defined under the Act and our implementing regulations. Thus, in our experience, Federal agencies are able to plan and implement active forest management, including commercial timber harvests, to reduce wildfire risk in northern spotted owl designated critical habitat. In addition, the Service considered the potential impacts of wildfire in our 2012 critical habitat designation (77 FR 71876, December 4, 2012). The 2012 critical habitat rule represented an increase in the total land area identified E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations from previous designations in 1992 and 2008. This increase in area was due, in part, to the need to provide for essential biological redundancy in northern spotted owl populations and habitat in fire-prone landscapes (Noss et al. 2006, p. 484; Thomas et al. 2006, p. 285; Kennedy and Wimberly 2009, p. 565). Please see our response to Comment (9) concerning the impact of the 2020 wildfires. In response to these and similar comments from others asserting that excluding areas from critical habitat would lead to a reduction in wildfire risks, the January Exclusions Rule acknowledged that Federal land managers could conduct active management in areas of designated critical habitat without violating the adverse modification prohibition of section 7 of the Act. The January Exclusions Rule went further, however, and inferred that the exclusion of areas from designated critical habitat would increase the potential for Federal land managers to include more lands in the Harvest Land Base, and allow longer cycles between timber harvests to provide many environmental benefits, including reductions in wildfire risk. It is certainly true that longer cycles between timber harvests, i.e., allowing trees to become older before they are removed, can have environmental benefits for species dependent on mature forests such as the northern spotted owl. However, it is speculative to conclude that Federal land managers would change their approach to allow for longer rotations if lands are excluded from the northern spotted owl critical habitat designation. There also remains scientific uncertainty about the conclusion that harvest of timber always lessens risks for catastrophic wildfire as compared with, for example, a focus on fuel reduction treatments targeted to restore more sustainable ecological processes. While the efficacy of standalone treatments such as thinning is uncertain and site-dependent, there exists widespread agreement that combined effects of thinning plus prescribed burning consistently reduce the potential for severe wildfire across a broad range of forest types and conditions (Prichard et al. 2021, Fule et al. 2012, Kalies et al. 2016, Stephens et al. 2021). In response to the USFS comments concerning spotted owl habitat connectivity, providing connectivity while also supporting other uses of forest lands is consistent with the critical habitat designation. For example, we found in our 2016 Biological Opinion on the revised BLM RMPs that the spatial configuration of VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 ‘‘reserve’’ land use allocations identified in the RMPs provide for northern spotted owl connectivity across the landscape. Reserve land-use allocations are areas in which BLM prioritizes management for resources other than commercial timber production, although active management such as harvest may occur in some reserves in order to achieve management objectives. The Harvest Land Base land-use allocation describes areas where BLM prioritizes commercial timber production. The BLM’s management of the LateSuccessional Reserve for northern spotted owl habitat and other reserves for non-timber objectives, along with the management and scheduling of timber sales within the Harvest Land Base, are expected to provide for northern spotted owl dispersal between physiographic provinces and between and among large blocks of habitat designed to support clusters of reproducing northern spotted owls (FWS 2016, p. 698), while also allowing BLM to meet its timber harvest goals. Comments From States Section 4(b)(5)(A)(ii) of the Act requires the Service to give actual notice of any designation of lands that are considered to be critical habitat to the appropriate agency of each State in which the species is believed to occur, and invite each such agency to comment on the proposed regulation. Section 4(i) of the Act states, ‘‘the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency’s comments or petition.’’ We notified the States of Washington, Oregon, and California of the proposed additional exclusions in Oregon. We did not receive comments from any State or State agency on the August 11, 2020, or July 20, 2021, proposed rules, only comments regarding the January Exclusions Rule; see our response to Comment (Ci). Comments From Counties We received comments from Klickitat, Lewis, and Skamania Counties in Washington; from Douglas, Jackson, and Harney Counties in Oregon; and from Siskiyou County in California. Most comments from counties pertained to either economic analysis or exclusions; see Economic Analysis Comments and Exclusions Comments below for County comments and our responses. Other comments from the counties are addressed in the section above titled Comments on the Withdrawal of the January Exclusions Rule and the section below titled Comments on July 20, 2021, Proposed Rule. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 62615 Comments From Tribes We received comments from the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians; the Cow Creek Band of Umpqua Tribe of Indians; and the Coquille Indian Tribe. Comment (2): The Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians and the Cow Creek Band of Umpqua Tribe of Indians commented in support of the proposed exclusion of lands recently transferred to them in trust. The Cow Creek Band of Umpqua Tribe of Indians expressed concern, however, that the proposed rule did not consider Tribal management plans and objectives for Indian forest land as a basis for the exclusions. The Coquille Tribe similarly commented in general that the rule should include a statement that recognizes the dominant purpose of the Coquille Forest to generate sustainable revenues sufficient to support the Coquille Tribal government’s ability to provide services to Coquille Tribal members, and ensure that the resulting critical habitat designation avoids burdening the Coquille Forest’s dominant purpose. Our response: No Indian lands were designated in the December 4, 2012, critical habitat rule (77 FR 71876). Since 2012, Federal lands managed by the BLM were transferred in trust to the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians and the Cow Creek Band of Umpqua Tribe of Indians pursuant to the Western Oregon Tribal Fairness Act (Pub. L. 115–103). This revised rule excludes those recently transferred lands from critical habitat designation. We considered Tribal management plans in our analysis of these exclusions as requested by the commenters; see Consideration of Impacts Under Section 4(b)(2) of the Act. We have not designated critical habitat within the Coquille Forest. Should we consider revisions to the critical habitat designation in the future, the Service will coordinate with the Coquille Tribe to address effects to the Forest and its dominant use as managed by the Tribe. Public Comments Public Comments on Critical Habitat Boundaries Comment (3): Commenters expressed concern that areas we proposed for exclusion in our August 11, 2020, proposed rule and our July 20, 2021, proposed rule provide important connectivity between the Coast Range, Cascades, and Klamath/Siskiyou Mountains populations of northern E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62616 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations spotted owls, and that exclusion could reduce colonization and gene flow, cause further isolation, and increase the probability of extinction of the owl. Commenters further stated that we should not rely on outdated plans that assume that northern spotted owls can successfully disperse in low-quality habitat, and that the distribution of reserves on National Forests alone will not meet the subspecies’ need for wellconnected habitat. Our response: The BLM updated their RMPs in 2016; we found in our 2016 Biological Opinion on the revised BLM RMPs that the spatial configuration of reserves, the management of those reserves for the retention, promotion, and development of northern spotted owl habitat, and the management and scheduling of timber sales within the Harvest Land Base land use allocation are all expected to provide adequate opportunities for northern spotted owl dispersal between physiographic provinces and between and among large blocks of habitat designed to support clusters of reproducing northern spotted owls (FWS 2016, p. 698). Thus, by excluding areas within the Harvest Land Base, we are not diminishing or altering connectivity functions of the remaining designated critical habitat to any significant degree. Additionally, regarding the reliance on reserves alone to facilitate connectivity, this revised designation retains USFS matrix lands that are essential to the conservation of the subspecies in addition to reserve lands. Please see our response to Comment (9) concerning the impact of the 2020 wildfires and Comment (26b) concerning the quality of dispersal habitat. In response to this comment, the January Exclusions Rule concluded that connectivity would remain protected without the critical habitat designation because Federal actions that ‘‘may affect’’ northern spotted owls would still require consultation under section 7 of the Act to evaluate whether the action jeopardizes the continued existence of the subspecies. On further review, we conclude that assumption was overstated as a basis to exclude these lands. It is true that Federal actions that ‘‘may affect’’ northern spotted owls, including actions that impact northern spotted owl habitat even if not designated as ‘‘critical,’’ would still undergo section 7 consultation (whether informal or formal, depending on the effects, see our response to Comment 7, below). The critical habitat designation, however, benefits the northern spotted owl as a landscape-scale conservation network that connects large blocks of habitat that VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 are able to support multiple clusters of northern spotted owls. The designation identifies areas on the landscape that may require special management considerations or protection. The section 7 consultation on effects to critical habitat ensures these considerations occur and evaluates the post-project functionality of the network to provide for connectivity at the subunit, unit, and designation scales. Evaluating habitat at multiple scales in a consultation on critical habitat ensures the landscape continues to support the habitat network locally, regionally, and across the designation. These considerations are not necessarily involved to the same degree when considering the effects to northern spotted owl habitat that is not designated as critical as part of the jeopardy analysis in a section 7 consultation. A consultation on effects to the species (including effects resulting from changes to the nondesignated habitat of the species) as part of the ‘‘jeopardy’’ prong looks primarily at how the project affects individuals, populations, and the species rangewide. Consultation on the effects to the designated critical habitat (the ‘‘critical habitat’’ prong of the consultation) focuses on that habitat network. This reflects Congress’s clear articulation of two limits on Federal actions in section 7: A prohibition against jeopardizing the species, and a prohibition against destroying or adversely modifying its designated critical habitat. While we do evaluate the effects of landscape level impacts to habitat as part of the jeopardy analysis, this does not mean that the analysis of impacts to critical habitat are no longer necessary; the two analyses are not necessarily interchangeable. Additionally, many of the lands that were excluded in the January Exclusions Rule are reserves or matrix lands that provide habitat that we found in our 2012 critical habitat rule were essential to the conservation of the northern spotted owl (77 FR 71876; p. 71895). See our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act. The Harvest Land Base lands that we exclude here in this final rule represent only a small portion (less than 2 percent) of the critical habitat designation and represent only 7 percent of the land base managed by the BLM under the 2016 RMPs, with the remaining lands largely managed as reserves. We evaluated the effects of future harvest on the Harvest Land Base lands in our 2016 biological opinion on PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 the BLM’s revised RMPs (BLM 2016a, b) and found that recovery of the northern spotted owl would not be impeded and that the critical habitat units would continue to provide connectivity and sufficient habitat across the landscape (FWS 2016). Therefore, additional section 7 consultation on critical habitat within the Harvest Land Base as currently described in the 2016 RMPs would provide no incremental conservation benefit as the management direction under the RMPs already provides a conservation strategy consistent with recovery of the northern spotted owl and will not appreciably diminish the conservation value of the critical habitat designation. The January Exclusions Rule, in response to this comment, also stated that ‘‘some of the areas used by the northern spotted owl for migration are secondary growth forests’’ and that ‘‘excluding such areas from critical habitat will not change their characteristics as secondary growth forests’’ and they will continue to be used for ‘‘migratory purposes.’’ On further review we find it is accurate that northern spotted owls may use areas of secondary growth forest; however, their use of these areas is dependent on the age, diversity, and condition of those forests. See also our response to Comment (26) below. An increase in the areas available for timber harvest, which was identified as a benefit of excluding the 3.4 million acres (1.4 million hectares) in the January Exclusions Rule, could occur if these lands were excluded from the critical habitat designation and land management agencies were no longer required to consider the special management considerations of critical habitat and subsequently amended their management approach or land management plans to allow for more harvest. The resulting increase in timber harvest could significantly alter the ability of these stands to provide for dispersal. While these changes in management and any resulting projects would not be immediate if these areas were excluded from the designation, over time expanded timber harvest would reduce connectivity of these areas to older, more complex forests that provide nesting, roosting, and foraging habitat for populations of northern spotted owls. Conserving or enhancing connectivity between populations to facilitate dispersal and subsequent colonization of large blocks of habitat that can support clusters of reproducing northern spotted owls was a key feature in the design of the critical habitat network. E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations Additionally, the January Exclusions Rule assumed that the reduced regulatory burden in the process of Federal planning and implementation of timber management would result in increased harvest. Increased harvest at the scale of exclusions in the January Exclusions Rule would reduce the overall connectivity and suitability of the critical habitat network. That reduction in connectivity under the January Exclusions Rule was, in hindsight, quite significant because of the expansive elimination of critical habitat designated in areas of the northern spotted owl range, with some critical habitat subunits being reduced by up to 90 percent. The much smaller exclusions we finalize here eliminate only portions of critical habitat units that overlap with the Harvest Land Base allocation, which, as we already determined in our 2016 biological opinion, could be harvested without affecting the conservation value, including connectivity, of that designated critical habitat. See also our response to Comment (9) concerning the impact of the 2020 wildfires. Comment (4): Commenters noted that the lands proposed for exclusion in our August 11, 2020, proposed rule and July 20, 2021 proposed rule, in particular Federal lands, met the definition of critical habitat for the northern spotted owl and were determined to be essential in our 2012 critical habitat designation (77 FR 71876), and so questioned how those lands could now be appropriate for exclusion from designation. Additionally, commenters questioned how the exclusion of these lands will not result in extinction. Our response: Areas that are found essential to the conservation of the species may be considered for exclusion from a critical habitat designation under section 4(b)(2) of the Act. 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. We found the areas we designated in 2012 to be essential to the conservation of the northern spotted owl. However, the BLM revised their RMPs in 2016, amending their conservation strategy for the northern spotted owl and related land use allocations (BLM 2016a, 2016b). We found in our 2016 Biological Opinion on the BLM RMPs (FWS 2016, p. 700) that, even with the projected timber harvest in the Harvest Land Base VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 land use allocation, the management direction implemented under the RMPs is consistent with the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and would not appreciably diminish the conservation value of, or adversely modify, critical habitat (FWS 2016, p. 702). Because we had this updated information and analysis, we reconsidered whether exclusion of these areas was appropriate. We have determined that the benefits of exclusion of the Harvest Land Base land outweigh the benefits of including these areas, and that exclusion of these lands will not result in the extinction of the northern spotted owl. See our exclusion and extinction analyses for Harvest Land Base lands under Consideration of Impacts Under Section 4(b)(2) of the Act. The January Exclusions Rule, which excluded all areas managed by the BLM under the O&C Act, including reserves as well as the Harvest Land Base, states that excluding the 3.4 million acres (1.4 million hectares) identified in that rule will not cause the extinction of the northern spotted owl. As discussed in our proposed rule, on reconsideration we find that conclusion is not supported by the science of conservation biology, the current population trend of the northern spotted owl, nor the purpose of the Act. See our analysis in the Withdrawal of the January Exclusions Rule section of this rule for a more detailed discussion. Comment (5): A commenter stated that smaller blocks of northern spotted owl critical habitat, such as those areas in the Harvest Land Base proposed for exclusion, are also important for the following reasons: They are migration/ dispersal corridors linking larger habitat blocks; they link the Coast Range province with the Cascade Range province; and they provide migration corridors that allow a species to adapt to climate (and habitat) change by relocating to higher quality habitat. Our response: See our response to Comment (3). Additionally, the BLM manages the Harvest Land Base acres in accordance with the management direction of the BLM RMPs (BLM 2016a, 2016b). In our 2016 Biological Opinion on the BLM RMPs (FWS 2016), we found that, even with the projected timber harvest in the Harvest Land Base, the area would continue to function for the dispersal of northern spotted owls and would provide connectivity between large blocks of habitat designed to support clusters of reproducing northern spotted owls. Comment (6): Commenters stated we failed to explain why the Service no longer believes that Oregon and PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 62617 California Railroad Revested Lands (O&C lands) make a significant contribution toward meeting the conservation objectives for the northern spotted owl and that we cannot attain recovery without them. Other commenters expressed concern about excluding lands in southwest Oregon where the majority of O&C lands occur. Our response: The O&C lands were revested to the Federal Government under the Chamberlin-Ferris Act of 1916 (39 Stat. 218). The Oregon and California Revested Lands Sustained Yield Management Act of 1937, Public Law 75–405 (O&C Act) addresses the management of O&C lands. The O&C Act identifies the primary use of revested timberlands for permanent forest production. The Harvest Land Base lands that we exclude in this revision are mostly on O&C lands managed by the BLM under the 2016 RMPs. However, portions of O&C lands, outside of the Harvest Land Base, that are managed by either the BLM or the USFS that provide essential habitat and are located in a spatial configuration that provides connectivity across the designation are still important to northern spotted owl conservation and are retained as critical habitat in this revision. As we noted above, we found in our 2016 Biological Opinion on the BLM RMPs (FWS 2016, p. 700) that, even with the projected timber harvest in the Harvest Land Base land use allocation, the management direction implemented under the RMPs is consistent with the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and would not appreciably diminish the conservation value of, or adversely modify, critical habitat (FWS 2016, p. 702). Thus, for the reasons explained in Consideration of Impacts Under Section 4(b)(2) of the Act, we have excluded the Harvest Land Base from the critical habitat designation. This conclusion is based in part on the expectation that these lands and the remaining designated critical habitat in other land use allocations will be managed consistent with the BLM’s 2016 RMPs. The January Exclusions Rule, because it excluded all O&C lands, provided a different response to this comment: ‘‘The O&C Act provides, and the courts have confirmed, that the primary use of these revested timberlands is for permanent forest production on a sustained yield basis. The Supreme Court has additionally determined that the ESA does not take precedence over an agency’s mandatory (nondiscretionary) statutory mission. Based on these court rulings, we have determined that exclusion of the O&C E:\FR\FM\10NOR2.SGM 10NOR2 62618 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 lands as critical habitat is proper in this case.’’ 86 FR 4820, January 15, 2021, p. 4822. Though not stated explicitly, this response implied (and has been interpreted by some commenters to mean) that the O&C Act removes any discretion the BLM may have in how to manage the O&C lands on a sustainedyield basis such that the Endangered Species Act does not apply to the BLM’s management of those lands at all. We take this opportunity to correct that implication. Courts reviewing the BLM’s management of O&C lands have found that the BLM retains discretion as to how to achieve sustained yield timber production. See AFRC v. Hammond, 422 F.Supp. 3d 184 at 190–91 (D.D.C. 2019); see also Swanson Grp. Mfg. LLC v. Salazar, 951 F. Supp. 2d 75, 82 (D.D.C. 2013), vacated on other grounds sub nom. Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235 (D.C. Cir. 2015); Portland Audubon Soc. v. Babbitt, 998 F.2d 705, 709 (9th Cir. 1993). None of these courts—including AFRC v. Hammond, that found legal infirmities in the BLM’s adoption of its 2016 RMPs—has held that the O&C Act precludes the BLM from considering opportunities to conserve threatened and endangered species when authorizing actions on O&C lands. Indeed, that district court decision narrowly ruled only that BLM lacks the authority to designate reserves on O&C lands because it violates the mandate to manage those lands for sustained yield timber harvest. It expressly stated that BLM had discretion in the management of those lands, and certainly did not hold that BLM lacks such discretion altogether. To the extent the January Exclusions Rule relied on the assumption to the contrary, it was incorrect. In short, ‘‘reserves’’ are not the same as designated critical habitat. In any case, as we discuss further in Consideration of Impacts Under Section 4(b)(2) of the Act, we conclude that the exclusion of some O&C lands from the designation as critical habitat is appropriate, but the exclusion of all O&C lands is not. Public Comments Regarding the Northwest Forest Plan (NWFP) or the BLM Revised Resource Management Plans (RMPs) Comment (7): Commenters expressed concern that exclusions would allow BLM to harvest timber without projectspecific consultation under section 7 of the Endangered Species Act. Commenters also expressed concern that the Service no longer considers habitat fitness when assessing project effects and incidental take in section 7 VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 consultations. Commenters further assumed that section 7 consultations would be required only if surveys confirm northern spotted owl presence, which commenters considered problematic because they conclude we cannot reliably detect northern spotted owls when barred owls are present. Thus, critical habitat provides a benefit through section 7 review likely resulting in the retention of the physical and biological features needed by northern spotted owls, which cannot be addressed otherwise through section 7 consultations. Our response: We completed a programmatic section 7 consultation on the BLM RMPs in 2016, under the assumption that BLM will implement actions consistent with the RMPs’ specific management direction over an analytical timeframe of 50 years (FWS 2016, p. 2). This approach allowed us to evaluate at a broad scale BLM’s plans to ensure that the management direction and objectives are consistent with the conservation of listed species. We found that the BLM’s plans, at the programmatic scale, were not likely to jeopardize the continued existence of the northern spotted owl, or destroy or adversely modify the owl’s designated critical habitat (FWS 2016). In our July 20, 2021, proposed revision to the critical habitat designation, we explained that Federal actions in the Harvest Land Base that may affect designated critical habitat require section 7 consultation at the project-level scale. As discussed further below in Consideration of Impacts Under Section 4(b)(2) of the Act, based on our experience in project consultations since the BLM 2016 RMPs were implemented, addressing effects to designated critical habitat in the Harvest Land Base provides no incremental conservation benefit over the conservation already provided for in the BLM RMPs (2016a, 2016b) and projectlevel consultations that still occur regardless of the presence of critical habitat. Thus, continuing to require BLM to include an analysis of effects to designated critical habitat in the Harvest Land Base within otherwise triggered, project-level consultations is not contributing to the conservation and recovery of the subspecies, nor is it an efficient use of limited consultation and administrative resources. With the exclusions finalized here, actions within the Harvest Land Base that affect northern spotted owl habitat (even if that habitat is no longer designated as critical) will still be subject to section 7 consultation to ensure that actions are not likely to jeopardize the continued existence of PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 the subspecies, but we are removing the regulatory burden to consult under section 7 to address designated critical habitat by excluding the Harvest Land Base. We have consulted on the program of timber harvest planned under the RMPs, which will occur primarily in the Harvest Land Base. We already determined in that consultation (FWS 2016) that harvest in the Harvest Land Base will not appreciably diminish the value of the critical habitat for the conservation of the northern spotted owl and that BLM’s management approach provided under the RMPs will sustain critical habitat over time. Northern spotted owls are expected to continue to be able to disperse across the landscape due to the habitat conditions and protections in the LateSuccessional Reserves and Riparian Reserves, the stand retention incorporated into the management direction for timber harvest in the Harvest Land Base, and because any detrimental effects to northern spotted owl dispersal capability will be spread over 50 years during which time ingrowth in the reserves will also be occurring. The BLM’s revised 2016 RMPs included approximately 177,000 additional acres (71, 630 hectares) of reserved lands compared to lands originally reserved under the NWFP in 1994; these acres contribute additional dispersal capability across the management area. These factors represent a significant improvement in the capability of the landscape to provide for spotted owl movement and dispersal. Given these provisions and assurances, in conjunction with all of the other considerations discussed in Consideration of Impacts Under Section 4(b)(2) of the Act, we conclude that the benefits of including these Harvest Land Base areas as designated critical habitat are relatively minor when compared to the benefits of excluding them. The commenter is incorrect in stating that we do not consider habitat fitness in our evaluations of effects in section 7 consultations for the subspecies in the absence of affected designated critical habitat. We consult on Federal actions that have effects to northern spotted owl habitat even if it is not designated as critical habitat, regardless of whether the subspecies currently occupies that habitat, and consider this information in our analysis of whether the action is likely to jeopardize the continued existence of the subspecies. The commenter may be confusing the question of ‘‘occupancy’’ for consideration of whether ‘‘incidental take’’ of the species will occur. Even if we conclude that a Federal action that E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations adversely affects habitat does not result in a ‘‘jeopardy’’ finding for the species, we must still assess whether the Federal action will result in the incidental take of the species. Because ‘‘take’’ of the species is dependent in part on the Federal action proximately causing actual injury to the species, information about the presence or absence of the animal during the proposed activity (often referred to in the terminology of ‘‘occupied’’ versus ‘‘unoccupied’’) is particularly relevant. In order to evaluate whether a Federal action affecting northern spotted owl habitat will incidentally ‘‘take’’ that subspecies, we consider a number of factors, including habitat effects and survey results for the presence of the owl. As a result, in some cases we may find that adverse effects to northern spotted owl habitat (not designated as critical habitat) will occur, but we are unable to conclude with reasonable certainty that the habitat effects will result in incidental ‘‘take’’ of the owl. See Arizona Cattlegrower’s Assn. v. U.S. Fish and Wildlife Serv., 273 F.3d 1229 (9th Cir. 2001). The commenter is correct that detectability of northern spotted owls is reduced when barred owls are present, which led us to endorse an updated protocol for surveying for northern spotted owls to take this into account (FWS 2012), a protocol that has been upheld on review by the courts (Cascadia Wildlands v. Thrailkill, 49 F. Supp. 3d 774, 779–80 (D. Or. 2014), aff’d, 806 F.3d 1234 (9th Cir. 2015)). Our jeopardy analysis considers the effects to habitat regardless of occupancy. With the exclusions finalized today, Federal agencies will no longer have the obligation to consult on the effect of their actions to (formerly) designated critical habitat in the areas excluded. They will still be required to consult with us if their discretionary actions result in effects to northern spotted owl habitat that remains, and they will be precluded from jeopardizing the subspecies as a result of that habitat modification. We will also still continue to evaluate whether the Federal actions affecting habitat, even if they do not jeopardize the subspecies, result in the incidental take of northern spotted owls, and if so, will identify reasonable and prudent measures and terms and conditions to minimize that incidental take. Comment (8): Commenters expressed concern that wildlife provisions in the BLM RMPs do not apply in the Harvest Land Base and that the exclusion of critical habitat would remove overlapping protections. VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 Our response: According to the 2016 BLM RMPs for western Oregon, the management objectives and management direction described for resource programs (including wildlife) apply across all land-use allocations, unless otherwise noted (BLM 2016a, p. 47, BLM 2016b, p. 47). Regarding overlapping protections, see our response to Comment (7) for our rationale for excluding these lands from critical habitat for the northern spotted owl. Comment (9): Commenters stated that we should consider the impact of recent wildfires that have occurred in Washington, Oregon, and California on the northern spotted owl and its habitat since the 2016 BLM RMPs were finalized, and that recent events make the modeling and analyses in the RMPs ineffective and obsolete. Commenters noted that the number of acres burned has exceeded the number of acres affected by wildfire that were modeled for the first decade in the BLM RMPs. Commenters further stated that excluding lands from critical habitat will lead to more regeneration logging, which will lead to increased fuels and uncharacteristic wildfire and that additional critical habitat should be designated in order to protect forests from regeneration harvest and further the objectives of the final recovery plan to provide habitat redundancy and avoid fire hazard. Our response: In September 2020, several major wildfires burned across portions of the range of the northern spotted owl in Washington, Oregon, and California affecting habitat conditions. The fires impacted multiple ownerships, including Federal lands managed by the BLM and USFS, State lands, and private lands. Although the wildfires that occurred during the fall of 2020 had significant impacts to some critical habitat units at the local level, the longer term impacts to spotted owl conservation will vary depending on fire severity (see our discussion in Comment (27b) regarding the use of previously burned habitat). Although some subunits have experienced a partial and/or temporary reduction in connectivity in places, overall the critical habitat units and the rangewide network designated in 2012 will continue to provide demographic support and connectivity to the northern spotted owl as intended in the 2012 critical habitat designation. The 2012 critical habitat rule was an increase in designated area compared to previous designations, in part to provide for biological redundancy in northern spotted owl populations and habitat by maintaining sufficient habitat on a PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 62619 landscape level in areas prone to frequent natural disturbances, such as the drier, fire-prone regions of its range (Noss et al. 2006, p. 484; Thomas et al. 2006, p. 285; Kennedy and Wimberly 2009, p. 565). The historical range of the northern spotted owl within Oregon, Washington, and California is about 57 million acres (23 million hectares), including both Federal and non-Federal (33 million) acres (USDA–USFS and DOI–BLM 1993, p. 23). The Northwest Forest Plan area, which was explicitly identified in 1994 to encompass the range of the northern spotted owl on Federal lands, is approximately 25 million acres (10 million hectares) in size and included 19 National Forests, 7 BLM Districts, and other Federal lands. The 2012 designation of 9.6 million acres (3.9 million hectares) of critical habitat (reduced in this revision to approximately 9.4 million acres (3.8 million hectares)) is a parsimonious and scientifically appropriate identification of only those lands within these 25 million acres (10 million hectares) that are critical to the conservation and recovery of the spotted owl. The 2012 designation is based upon almost three decades of scientific research on the spotted owl. Estimating actual historical forested habitat within this range is difficult, but during our evaluation of whether to list the northern spotted owl, we concluded the best available information was that some 17.5 million acres (7 million hectares) of ‘‘suitable’’ habitat were available to the owl historically, before the advent of significant timber harvesting of old growth forests (55 FR 26114, June 26, 1990; p. 26151). When we initially designated critical habitat for the owl in 1992, we estimated that only 7.2 million acres (2.9 million hectares) of this ‘‘suitable’’ habitat (in this context meaning the types of older, more mature stands preferred by the northern spotted owl for nesting, roosting, and foraging when available in an area) remained on Federal lands, and most of it (60 percent) was in land allocations available for harvest (57 FR 1796, January 15, 1992; p. 1799). We found in the 1992 critical habitat designation that the best available information was that it could all be removed within 25–30 years (57 FR 1796, January 15, 1992; p. 1800). The critical habitat revision in 2012 was built upon this scientific work, while also incorporating the best available updated scientific information and taking into account more recent concerns such as the barred owl invasion, climate change, and the E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62620 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations increasing impacts associated with severe wildfire. In the development of habitat conservation networks generally, the intent of spatial redundancy is to increase the likelihood that the network and populations can sustain habitat losses by inclusion of multiple populations unlikely to be affected by a single disturbance event. This redundancy is essential to the conservation of the northern spotted owl because disturbance events such as fire can potentially remove large areas of habitat with negative consequences for northern spotted owls. The evaluation process used by the Service incorporates the recommendations of the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) by addressing spatial redundancy at two scales: By (1) making critical habitat subunits large enough to support multiple groups of owl sites, and (2) distributing multiple critical habitat subunits within a single geographic region. This was particularly the case in the fire-prone Klamath and Eastern Cascades portions of the range. In summary, we acknowledge that the recent wildfires had negative impacts on some local northern spotted owl populations and critical habitat subunits and that future fires are likely to have additional negative impacts. However, the additional exclusions we make here represent a relatively small area compared with the designated areas that remain, and they do not appreciably diminish the conservation value of the designation to the northern spotted owl. These areas that remain in the designation will be managed in the long term for northern spotted owl conservation under the Northwest Forest Plan (NWFP) (USFS and BLM 1994a, USFS and BLM 1994b) and BLM RMPs (BLM 2016a, BLM 2016b) and are expected to provide an adequate amount of habitat at the listed-entity scale to withstand periodic natural disturbances such as wildfire. Regarding the comment that exclusions will lead to regeneration harvest and subsequent increased fuel load and uncharacteristic wildfire, we assume the Harvest Land Base will continue to be managed consistent with the management direction defined in the 2016 RMPs. As previously stated, we found in our 2016 Biological Opinion on the BLM RMPs (FWS 2016, p. 700) that, even with the projected timber harvest in the Harvest Land Base land use allocation, the management direction implemented under the RMPs is consistent with the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and would not appreciably diminish the conservation value of, nor VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 adversely modify, critical habitat (FWS 2016, p. 702). The January Exclusions Rule considered that one benefit of exclusion could be a lessening of the regulatory burdens for discretionary Federal decisions when considering management practices to protect forested lands from catastrophic wildfire. See our responses to Comments (1) and (27a) regarding section 7 consultation and the recommendations in our 2012 critical habitat rule for fuels management and dry forest restoration projects. Comment (10): A commenter expressed concern that habitat for the northern spotted owl will not grow as projected in the Recovery Plan and the BLM RMPs due to climate change and the combined effects of increased fire, insects, disease, storms, and carbon enrichment. Commenters stated that the exclusions will lead to more logging and greenhouse gas emissions and that mitigating the risks of climate change requires greater conservation of northern spotted owl habitat, particularly older forests that store significant amounts of carbon; therefore, these additional exclusions should not be made. Our response: As mentioned earlier, the 2012 spotted owl critical habitat designation was enlarged from previous designations, in part to provide increased redundancy in the face of climate change. We analyzed climate change and its potential impact on spotted owl recovery in the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011). We noted the combined effects of climate change and past management practices are altering forest ecosystem processes and dynamics (including patterns of wildfires, insect outbreaks, and disease) to a degree greater than anticipated in the NWFP. The Recovery Plan encourages land managers to consider this uncertainty and how best to integrate knowledge of managementinduced landscape pattern and disturbance regime changes with climate change when making spotted owl management decisions. The Recovery Plan further recommended an adaptive management approach to reduce scientific uncertainties. Recovery Action 5 in the Recovery Plan for the Northern Spotted Owl states: ‘‘Consistent with [Secretarial] Order 3226, as amended, the Service will consider, analyze and incorporate as appropriate potential climate change impacts in long-range planning, setting priorities for scientific research and investigations, and/or when making major decisions affecting the spotted PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 owl’’ (FWS 2011, p. III–11). The Recovery Plan acknowledged the uncertainty associated with estimating rates of habitat recruitment (FWS 2011, p. B–8). The BLM RMPs state that if the need for adaptive management to address changes in the climate would so alter the implementation of actions consistent with the RMPs that the environmental consequences would be substantially different than those anticipated in the Proposed RMP/Final Environmental Impact Statement, then the BLM would engage in additional planning steps and procedures under the National Environmental Policy Act (NEPA) (BLM 2016a, p. 111). Additionally, the effects of climate change will be considered in the development of forest management actions and analyzed in future NEPA analyses and section 7 consultations at the project level. The BLM may also apply adaptive management by taking additional planning steps and NEPA procedures based on information found through the monitoring questions (Appendix B) (BLM 2016a, p. 111; BLM 2016b, p. 133). The late-successional and oldgrowth ecosystems effectiveness monitoring program characterizes the status and trend of older forests to answer the basic question: Is implementation of the BLM RMPs maintaining and restoring latesuccessional and old-growth forest ecosystems to desired conditions on Federal lands in the planning area? (BLM 2016a, p. 116; BLM 2016, p. 138). Effectiveness monitoring reports will also include analysis of whether the BLM is achieving desired conditions based on effectiveness monitoring questions and, where possible, inform adaptive management (BLM 2016a, p. 111; BLM 2016b, p. 139). As discussed further in our response to Comment (33), we established benchmarks in our biological opinion on the BLM’s RMPs for evaluating the effectiveness of their program. In sum, BLM’s RMPs are consistent with the Recovery Plan recommendations for addressing uncertainty, and provide the tools for adaptive management if needed to address effects from climate change. The Harvest Land Base exclusions finalized here will not impair that adaptability. Comment (11): Commenters asserted that our statement in the proposed rule that the proposed exclusion provides ‘‘no incremental conservation benefit over what is already provided for in the RMPs’’ conflicts with the Service’s prior finding that the owl ‘‘fared very poorly’’ E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations on reserves within the NWFP compared to designated critical habitat. Our response: The statement concerning ‘‘reserves faring very poorly’’ in the 2012 critical habitat rule was in reference to a modeling scenario where we tested population performance of a potential critical habitat designation based on only NWFP reserves. Our 2012 designation was not based on this modeling scenario. The critical habitat designation retains northern spotted owl habitat in reserve land-use allocations, and retains northern spotted owl habitat in the matrix and some non-Federal public lands that we found essential to the conservation of the subspecies. The designation of these lands was supported by our statement in the 2012 critical habitat rule: ‘‘In some areas, for example the O&C lands, our modeling results indicated that those Federal lands make a significant contribution toward meeting the conservation objectives for the northern spotted owl in that region, and that we cannot attain recovery without them. Likewise, in addition to our modeling results, peer review of both the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) as well as our proposed rule to revise critical habitat, suggested that retention of high-quality habitat in the matrix is essential for the conservation of the subspecies. Population performance based on reserves under the NWFP, for example, fared very poorly compared to this final designation of critical habitat. As described in the section Changes from the Proposed Rule, we tested possible habitat networks without many of these matrix lands, which resulted in a significant increase in the risk of extinction for the northern spotted owl.’’ (77 FR 71876, December 4, 2012; p. 72007). We are excluding the portion of O&C lands (approximately 172,712 acres (69,894 hectares)) allocated by the BLM to the Harvest Land Base. The remaining O&C lands under USFS and BLM management (1,209,229 acres (489,357 hectares)) are retained within the critical habitat designation in this final rule. We have determined that the benefits of exclusion of the Harvest Land Base land outweigh the benefits of including these areas, and that exclusion of these lands will not result in the extinction of the northern spotted owl. See our discussion of the benefits of exclusion versus inclusion of Harvest Land Base lands in Consideration of Impacts Under Section 4(b)(2) of the Act. Comment (12): Commenters expressed concern that the BLM RMPs that we rely VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 on for our basis for exclusions could be vacated due to current litigation and that the protection in place under the 2016 RMPs would no longer apply. Our response: A district judge in the U.S. District Court for the District of Columbia found that the BLM RMPs violate the O&C Act because BLM excluded portions of O&C timberland from sustained yield harvest (i.e., the BLM allocated some timberlands to reserves instead of the Harvest Land Base); see, American Forest Resource Council et al. v. Hammond, 422 F.Supp.3d 184 (D.D.C. 2019). Although a decision as to remedy has not yet been issued, depending on the final outcome of that litigation, the Harvest Land Base might change through court order or land use planning by BLM. We have excluded lands based on the BLM RMPs as they are, not as they may be modified in the future. See also our response to Comment 25(b), below, and our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act. Public Comments on Competition From Barred Owls Comment (13): Commenters expressed the importance of preserving mature and old-growth forest for spotted owls in light of competition with barred owls and stated that the Service has not fully explored how much more habitat needs to be conserved to mitigate for northern spotted owl habitat occupied by barred owls. Commenters stated that reducing critical habitat will increase the probability of competitive exclusion and that we should not reduce critical habitat without a barred owl management plan in place. Our response: In addition to the effects of historical and ongoing habitat loss, the northern spotted owl faces a significant and complex threat in the form of competition from the congeneric (referring to a member of the same genus) barred owl (FWS 2011, pp. I–7 to I–8). Franklin et al. (2021) found that spotted owl populations declined 6 to 9 percent annually on 6 demographic study areas and 2 to 5 percent annually on 5 study areas. Applying the annual rates of decline, populations dropped to or below 35 percent of the historical population on 7 of the study areas, and to or below 50 percent on the remaining 3 areas over a 22-year period (1995– 2017). The presence of barred owls on spotted owl territories was the primary factor negatively affecting apparent survival, recruitment, and thus the population change, and was a PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 62621 contributing factor in our recent determination that the subspecies warranted reclassification to endangered status. An analysis of occupancy based on northern spotted owl and barred owl detections supported the conclusion that barred owl presence has a negative effect on northern spotted owls, increasing territorial extinction and decreasing territorial colonization of spotted owls. While barred owl occupancy was the dominant negative effect on spotted owl territory occupancy and population trend, other factors such as habitat condition had a weaker, but positive, effect on occupancy and trend. These other factors such as habitat were insufficient to reverse the negative trend, but suggest the importance of maintaining spotted owl habitat on the landscape, even if it is unoccupied, in the face of competitive exclusion by barred owls, as noted by Dugger et al. 2011. The authors in Franklin et al. (2021) noted that maintenance of habitat across the landscape would (1) provide areas available for recolonization by northern spotted owls should management actions allow for reduction of barred owl populations and (2) facilitate connectivity by dispersing northern spotted owls among occupied areas, citing to Sovern et al. 2014. The authors stated, ‘‘Our analyses indicated that northern spotted owl populations potentially face extirpation if the negative effects of barred owls are not ameliorated while maintaining northern spotted owl habitat across their range.’’ (Franklin et al., 2021, p. 19) The Service conducted experimental removal of barred owls to test its efficacy in improving spotted owl demographic performance on four study areas spread across the northern spotted owl range in Washington, Oregon, and northern California. Peer-reviewed analysis of the experiment (Wiens et al. 2021) showed a strong, positive effect of barred owl removal on survival of spotted owls in the treated areas and a weaker but positive effect on spotted owl dispersal and recruitment. The estimated mean annual rate of population change for spotted owls stabilized in areas with removals (0.2 percent decline per year), but continued to decline sharply in areas without removals (12.1 percent decline per year). Barred owl removal had a strong positive effect on spotted owl survival, which was the primary factor in stabilizing the populations. Barred owl removal also demonstrated a weaker, though still positive, effect on recruitment of new spotted owls to the territorial populations. This weaker E:\FR\FM\10NOR2.SGM 10NOR2 62622 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 response is probably due to the depressed reproduction in recent years and the subsequent limited availability of new recruits. The experiment demonstrated that barred owl removal can achieve rapid results in improving the persistence of northern spotted owls, though effects on reproduction and long-term population trend will take a longer period of management effort. These two analyses (Wiens et al. 2021, and Franklin et al. 2021) indicate that, while barred owl presence was the primary and strongest driver of spotted owl population trend leading to the rapidly decreasing spotted owl populations, habitat availability and quality were important components of managing for the survival and recovery of spotted owls in the future. The Service is in the process of developing a barred owl management strategy, using the information from both of these studies. Similar to our response above to the comment suggesting the need for increased habitat redundancy in the face of catastrophic wildfire, we find that the critical habitat designation, which includes more area than what was previously designated in 1992 and 2008, is consistent with the Revised Recovery Plan for the Northern Spotted Owl (2011) and provides for the conservation of northern spotted owls as they face growing competition from barred owls. The exclusions we finalize here are not of a scale to appreciably affect that approach. See also our discussion of our analysis in the biological opinion on BLMs RMPs and their approach to barred owl management in our responses to Comments (15, 18, and 33). Other Public Comments Comment (14): Commenters asked why regulatory oversight of critical habitat is no longer necessary in light of the Service’s previous position that oldgrowth reserves of the Northwest Forest Plan ‘‘are plan-level designations with less assurance of long-term persistence than areas designated by Congress. Designation of Late-Successional Reserve) as critical habitat complements and supports the Northwest Forest Plan and helps to ensure persistence of this management directive over time’’ as well as the Service’s prior statements that critical habitat has significant additional value to listed species separate from any value provided by land management plans. Commenters further stated that our previous position is in contrast to our statement in the proposed rule that these exclusions are to ‘‘clarify the primary role of these lands in relation to northern spotted owl VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 conservation,’’ and ‘‘eliminat[e] any unnecessary regulatory oversight.’’ Our response: In this final rule, we are not excluding lands within reserve land use allocations from the critical habitat designation. Our exclusion of the Harvest Land Base lands managed by BLM is based on new information since the December 4, 2012, critical habitat designation (77 FR 71876), i.e., the 2016 BLM RMPs and our evaluation of those RMPs through the section 7 consultation process. As described earlier, the lands we exclude in this final rule were already reviewed for their value to longterm spotted owl conservation in the 2016 Biological Opinion on the BLM RMPs, and the RMPs provide a robust long-term conservation strategy that is consistent with the goals of the 2011 Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and the 2012 critical habitat designation. The January Exclusions Rule, in justifying the exclusion of 3.4 million acres (1.4 million hectares), stated that even on excluded lands, all discretionary Federal actions and decisions on areas that are occupied by the subspecies will be required to undergo section 7 consultation if such action or decision ‘‘may affect’’ the northern spotted owl and that such consultation will ensure that the continued existence of the northern spotted owl is not jeopardized. See our further review of these statements in our response to Comment (3) and our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act. Comment (15): Commenters stated that when the critical habitat designation was originally established, it was understood that much of the old forest reserves would require considerable time to recover old-growth characteristics and support northern spotted owl reproduction, having been subject to logging prior to 1990 and that critical habitat should not be reduced until the reserve system is fully restored. The commenters asserted that much of the occupied habitat in the Harvest Land Base would need to be left unlogged during the intervening time, to assure an ecologically sustainable continuity of old-growth forest, with no significant net loss. Our response: In our 2016 Biological Opinion on the BLM RMPs, we concluded that there will be a net increase in habitat for northern spotted owls during the life of the RMPs due to forest ingrowth outpacing harvest, and the RMPs containing more reserve acres PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 and habitat than the NWFP (FWS 2016, p. 5). During the first 5 to 8 years of the RMPs, the BLM will implement measures to avoid take of northern spotted owls until implementation of a barred owl management program has begun. In addition, subsequent effects to northern spotted owls would be meted out over time in the Harvest Land Base and minimized in other land use allocations. These measures in the RMPs will minimize near-term negative effects to occupied northern spotted owl habitat in the Harvest Land Base as habitat continues to further develop late-successional characteristics in the reserve land use allocations. Comment (16): Commenters stated that our proposal to exclude the Harvest Land Base lands ignores the northern spotted owl Recovery Plan recommendation to protect older, complex forests on Federal lands west of the crest of the Cascades range. Our response: We relied on the recovery criteria set forth in the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) to determine what is essential to the conservation of the subspecies and identified a critical habitat designation that ensures sufficient habitat to support stable, healthy populations across the range and within each of the 11 recovery units. The Revised Recovery Plan for the Northern Spotted Owl relies on the NWFP’s Late-Successional Reserve network as the foundation for northern spotted owl recovery on Federal lands (FWS 2011, p. III–41). The revised plan recommended ‘‘continued application of the reserve network of the NWFP until the 2008 designated spotted owl critical habitat is revised and/or the land management agencies amend their land management plans taking into account the guidance in this Revised Recovery Plan’’ (FWS 2011, p. II–3). BLM’s 2016 revision of its RMPs fully considered the 2011 Recovery Plan recommendation. The BLM RMPs provide protection to older, complex forests through the system of reserves. Reserve land use allocations (Late-Successional Reserve, Congressionally Reserved Lands and National Conservation Lands, DistrictDesignated Reserves, Riparian Reserve) comprise 74.6 percent (1,847,830 acres (747,790 hectares)) of the acres of BLM land within land use allocations (FWS 2016, p. 9). These lands are managed for various purposes, including preserving wilderness areas, natural areas, and structurally complex forest; recreation management; maintaining facilities and infrastructure; some timber harvest and fuels management; and conserving lands E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations along streams and waterways. Of these lands, 51 percent (948,466 acres (383,830 hectares)) are designated as Late-Successional Reserve, 64 percent of which (603,090 acres (244,061 hectares)) are located within the critical habitat designation for the northern spotted owl (FWS 2016, p. 9). The management objectives on Late-Successional Reserve are designed to promote older, structurally complex forest and to promote or maintain habitat for the northern spotted owl and marbled murrelet (Brachyramphus marmoratus). In this final rule, we are not excluding lands within reserve land use allocations from the critical habitat designation. The January Exclusions Rule stated that ‘‘the correct analysis for purposes of section 4(b)(2) is whether the Secretary concludes that the specific exclusion of these areas of critical habitat will result in the extinction of the species.’’ We agree with this statement; however, see our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act. Comment (17): Commenters expressed concern that excluding critical habitat will impede recovery of the northern spotted owl and that we should not exclude areas that contain sites with a history of northern spotted owl reproduction. Our response: In our 2016 Biological Opinion on the 2016 Revised BLM RMPs, we found that the conservation needs of the northern spotted owl will continue to be met because the BLM’s plan is consistent with the guidance of the northern spotted owl Recovery Plan, at the landscape scale over 50 years, as follows: • The BLM RMPs will conform to the northern spotted owl Recovery Plan, including the location and function of large blocks of habitat for reproducing spotted owls and the ability of the landscape to support spotted owl movement between those blocks. • The BLM RMPs will include approximately 177,000 more acres (71,629 hectares) of Late-Successional Reserve and Riparian Reserves than in the NWFP, which will be managed for the retention and development of large trees and complex forests across the RMP landscape. • The BLM RMPs will improve the amount, quality, and distribution of nesting habitat on BLM lands over the first 50 years modeled under the RMPs through management of these increased reserves. VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 • The BLM RMPs will facilitate and improve northern spotted owl dispersal capability across the landscape through the management of the increased reserves. Given the management, spatial configuration, and projected improvement of habitat in the reserves, we find that excluding the Harvest Land Base lands will not preclude recovery of the northern spotted owl if the 2016 RMPs are implemented as described. In addition, the Indian lands excluded herein represent only 0.21 percent of the overall designation; we have found that we can achieve the conservation of the northern spotted owl by limiting the designation to other lands. The January Exclusions Rule determined that the exclusion of 3.4 million acres (1.4 million hectares) from the critical habitat designation outweighed the benefits of inclusion, and that, based upon the best scientific and commercial data available, it did not conclude that exclusion of those areas will result in extinction of the subspecies. See our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act. Comment (18): Commenters expressed concern that the downward trend in northern spotted owl populations has continued since the 2016 BLM RMPs were finalized, and that we should evaluate the 2020 meta-analysis (demographic analyses that are performed every 5 years under the NWFP) prior to making changes in the critical habitat designation. Commenters further expressed concern that we should be conserving more habitat in light of the Service’s recent finding that the northern spotted owl warrants reclassification to endangered status. Our response: The most recent metaanalysis, Franklin et al. (2021), found that the northern spotted owl continues to suffer a significant population decline across its range, due primarily in recent years to increasing competition from the invasive and aggressive barred owl. Unless barred owls are proactively managed while also maintaining northern spotted owl habitat across the range, northern spotted owls are likely to become extirpated across portions of their range (Franklin et al. 2021, pp. 18– 19). We find the BLM RMPs provide an approach that minimizes negative impacts to spotted owls and offsets these impacts with proactive positive actions providing for the long-term survival and recovery of the northern spotted owl. When considered in its PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 62623 entirety, implementation of the BLM RMPs will have both negative and positive effects on the northern spotted owl. Negative impacts will primarily be due to resource utilization such as timber harvest on less than one-quarter of the BLM land base, and other resource programs. Positive effects of the plan will accrue due to the following: An increase in the total area of protected forest reserves on BLM lands (approximately 80 percent of BLM ownership); BLM’s management of forest habitat to increase the rate of development of late-successional conditions; and BLM’s support for, and cooperation in, the barred owl removal experiment and a potential barred owl management program (see our response to Comment (13) regarding the completion of the barred owl removal experiment and the development of a barred owl management program). When aggregating these negative and positive impacts with the environmental baseline, it is our conclusion that the impact of the BLM RMPs will be a net conservation gain for the northern spotted owl during the next 50 years under the plans. Over the 50-year life of the BLM RMPs (BLM 2016a, BLM 2016b), there will also be a significant net gain over current levels in spotted owl habitat largely within reserves that will be managed to maintain and produce highquality spotted owl habitat of the kind preferred by owls for nesting, roosting, and foraging when available in an area. This increase will provide large blocks of habitat of Federal land capable of supporting more than 25 spotted owl pairs. Spotted owl dispersal through these areas also will continue to be facilitated and is expected to improve over time under BLM’s management. Although impacts to spotted owl habitat in the Harvest Land Base were anticipated, wherever possible those impacts will be spread out over time to minimize site abandonment as a barred owl management strategy is implemented. Given this, and the landscape of reserves providing for blocks of habitat and northern spotted owl movement consistent with the recovery needs of the spotted owl, we concluded the BLM RMPs will not appreciably diminish the ability of the BLM lands to provide for a welldistributed population of owls. Because of the expected retention and improvement of northern spotted owl populations on BLM lands, the Service concluded that implementation of the BLM RMPs would not represent an appreciable reduction in the likelihood of survival and recovery of the northern spotted owl in the wild due to E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62624 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations reductions in reproduction, numbers, or distribution (FWS 2016, p. 624). BLM’s commitment to participate in and support a barred owl management strategy, combined with the RMPs’ allocation of reserves, is projected to result in a significant improvement in the northern spotted owl population’s trend, and in the reproduction, numbers, and distribution over projected baseline conditions with no barred owl management and no timber harvest. Comment (19): Commenters stated that the BLM and Service cannot avoid their duties under the ESA simply because the area in question involves O&C lands and that section 4(b)(2) exclusions should not be used as a tool to circumvent section 7 consultation recommendations. Our response: Our rationale for excluding the Harvest Land Base is not to circumvent section 7 consultation, nor because the area in question involves O&C lands. Rather, we have concluded based on our programmatic review in our Biological Opinion on the BLM 2016 RMPs, and our experience in project consultations since the BLM 2016 RMPs were implemented, that addressing effects to designated critical habitat in the Harvest Land Base provides no incremental conservation benefit over the conservation already provided for in the BLM RMPs (2016a, 2016b) and project-level consultations that still occur regardless of the presence of critical habitat. Thus, continuing to designate critical habitat in order to require BLM to include effects to critical habitat designated in the Harvest Land Base within otherwise triggered, project-level consultations is not contributing to the conservation and recovery of the subspecies, nor is it an efficient use of limited consultation and administrative resources. The January Exclusions Rule stated because there will continue to be section 7 consultations for discretionary actions in areas where the spotted owl occurs, we have concluded that the additional regulatory requirement related to review for adverse modification is outweighed by other relevant factors. See our response to Comment (3) concerning section 7 consultations and our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act. VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 Economic Analysis Comments Comments From Counties Comment (20): Several counties requested that the Service undertake a new economic analysis to reconsider the economic impacts of the 2012 designation on local communities and natural resource-based economies. Our response: We reviewed the FEA (IEc 2012) conducted for the December 4, 2012, critical habitat designation (77 FR 71876) as well as additional information submitted during the public comment period. We also conferred with the economists who prepared the FEA regarding the additional information submitted (IEc 2020). See our response to Comment (21) below for further detail. In general, we found that the commenters disagree with the Service’s incremental methodology used to analyze the economic effects of the critical habitat designation for northern spotted owl, although that approach was the Service’s policy at the time and has since been codified in its regulations; see 50 CFR 424.19(b)). In addition, because the January Exclusions Rule has not gone into effect and we are only excluding (i.e., removing) additional areas from critical habitat, the economic impact will be further reduced from that analyzed in 2012 and a new economic analysis is not necessary. Even if the January Exclusions Rule were to go into effect, an entirely new economic analysis would not be required for this final rule because (1) this rule does not designate any new areas that were not included in the 2012 critical habitat designation and analyzed in the 2012 FEA; (2) the 2012 FEA estimated potential incremental economic impacts of the 2012 designation over a 20-year timeframe, which has not yet ended as of the date of this final rule; and (3) the Service has considered the updated economic-impact information provided by commenters, as discussed more fully below. The Service has fully considered the economic impacts of this final rule, consistent with the requirements of ESA Section 4(b)(2). The January Exclusions Rule stated that our FEA completed in 2012 (IEc 2012) in combination with a new report prepared by the Brattle Group (2020) (Brattle Report) continue to be the best scientific and commercial data available; we no longer find this to be the case as discussed in our response to Comment (21) addressing IEc’s review of and our concerns with information contained in the Brattle Report (IEc 2020, IEc 2021). Comment (21): The AFRC (AFRC 2020; AFRC 2021) provided public comments requesting that the Service PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 exclude at least 2,515,491 additional acres (1,017,983 hectares) in addition to the 204,653 acres (82,820 hectares) proposed for exclusion. The AFRC provided the Brattle Report critiquing our FEA and a supplement to the Brattle Report (Brattle supplement) responding to our responses to comments in the January Exclusions Rule (The Brattle Group 2021). The Brattle Report included updated estimates of the economic impacts of the 2012 rule using more recent data and/or different assumptions. The Oregon Farm Bureau and Oregon Cattlemen’s Association; California Farm Bureau Federation; Lewis, Skamania, and Klickitat Counties in Washington; and Douglas County in Oregon also cited the Brattle Report and/or supplement in their comment letters as justification for additional exclusions. We summarize AFRC and other comments pertaining to economic analysis issues in the following: (a) A focus of the Brattle Report and supplement (referred to as reports here) is a review of our analysis of potential timber harvest losses attributable to northern spotted owl critical habitat designation in 2012. The Brattle reports follow the same analytic approach for measuring timber harvest impacts as employed in the economic analysis for the critical habitat designation (IEc 2012), but use alternative assumptions or updated inputs. These adjustments yield the following differences when compared to the results of the FEA (see IEc 2020 for more details): • The number of acres where incremental harvest impacts may occur is higher; • The baseline annual harvest potential is higher; • The potential reductions in harvest volumes due to the impact of critical habitat are larger; and • The estimated stumpage values are lower. As described by IEc in their review of this information (IEc 2020, 2021), the effect of these changes in inputs by the Brattle reports is a higher measure of the negative annualized timber harvest impacts across the affected acres, i.e., a projection of greater economic effects. The Brattle reports assert that, across 1.7 million acres (687,966 hectares), the critical habitat designation greatly diminishes harvest and causes losses to the market of between $66.4 million and $77.2 million (or between $66.4 million and $85.4 million per the supplement) on an annualized basis, and between $753 million and $1.18 billion (or between $869 million and $1.31 billion per the supplement) over 20 years on a net present value (NPV) basis. AFRC and others suggest the results of the E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations Brattle reports support their request for exclusion of additional acres based on economic impacts. Our response: We find several issues with the analysis provided in the Brattle reports, specifically the assumptions or data used to produce the estimate of negative annualized timber harvest impacts due to the critical habitat designation, and we do not agree with their ultimate conclusions. First, the Brattle reports state that the higher number of acres where incremental impacts may occur is based upon a review of GIS files and other related information. Their estimated acreage of lands affected changed considerably between the Brattle Report and supplement. However, the supplement provides no clear basis for this increase. We asked IEc to review the Brattle reports, and they concluded that they could not replicate the result, but determined that the magnitude of differences in the acreages identified in the reports versus those identified in our FEA are unlikely to substantially alter the ranking of potential impacts by subunit. The Brattle reports provide retrospective impacts by subunit, but do not provide a composite ranking. In contrast, our FEA included an analysis of acreages by subunit where impacts may occur, scored these areas by the potential extent of impact, and then ranked each subunit according to a composite score against all other subunits (see Section 4.3 of IEc 2012). Second, the Brattle reports assume a much higher baseline annual harvest potential on USFS and BLM lands (a more than five-fold increase) than the best available information indicates is likely. We understand that the reports relied on average yields from a short time period of harvest data (2018–2020) on lands managed by BLM for moist and dry forests and then translated these harvest levels into estimates of longterm annual yields across the acres where the reports assume incremental impacts may occur. Based on comments from AFRC, the reports also assume similar yields on BLM and USFS lands, a standard rotation age of 100 years where one percent of the land would be regeneration-harvested, and one percent would be thinned. The assumptions are at best hypothetical and not widely applicable. The BLM and USFS are unlikely to have similar yields generally for a variety of reasons, including that there is no standard of a 100-year rotation age or one percent regeneration harvest used by either agency for all of their managed lands. The USFS and BLM apply ‘‘uneven-aged’’ stand management, rather than ‘‘even-aged’’ stand rotations, on many of these areas VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 to meet multiple use goals such as wildfire risk reduction, recreation, forest restoration, and biodiversity conservation, especially in drier portions of the range. In contrast, we based our yield rates on actual harvest data provided by the BLM and USFS over an extended period (IEc 2012). For lands managed by BLM, the FEA used data BLM provided on 30 years of planned timber harvest by land allocation type (reserve/matrix), forest conditions (nesting/roosting habitat, predominantly younger forests), and harvest type (thinning, regeneration) at the critical habitat subunit level. For lands managed by USFS, our FEA used projected yield rates provided by the USFS for each critical habitat unit. Third, the Brattle reports assume an 80 percent reduction in harvest volumes due to the critical habitat designation versus the 20 percent used in the FEA high-impact scenario. The reports indicate that the assumption of an 80 percent reduction in harvest volumes is based on discussions with AFRC and unspecified comments provided by the USFS and BLM on the 2012 economic analysis. As a result, it is unclear on what basis the Brattle reports assume an 80 percent reduction in harvest volumes. The most likely cause is by improperly conflating the impact that the listing of the northern spotted owl in 1990 and other economic and logistical factors had on timber harvest with the incremental effect of the subsequent designation of critical habitat, particularly in areas that are currently unoccupied by the subspecies. The Brattle Report also noted that it ‘‘cannot model the timber markets that influence the demand for timber in the Pacific Northwest’’ to test the reasonableness of its assumption concerning timber harvest effects (The Brattle Group 2020, p. 17). The potential incremental effect of critical habitat on harvest levels was a point of significant debate for the 2012 critical habitat designation (see section 4.4.2 of the FEA). As IEc notes in its assessment of the Brattle Report, ‘‘Various land managers, Service experts, and other commenters concluded that the direction and magnitude of effect due to critical habitat was uncertain, noting that harvest levels could be higher or lower depending on a variety of land management considerations and harvest factors. In addition, the implementation of timber harvest in critical habitat occurs within a complex set of factors, including volatility in global demand for wood products, general timber industry transformation, and existing regulatory and statutory requirements, among other factors.’’ The FEA used PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 62625 three separate scenarios, along with additional sensitivity analysis to capture this uncertainty and the concerns of multiple stakeholders, including BLM and USFS. ‘‘The Brattle report does not endeavor to model markets or other factors that influence the demand for timber in the Pacific Northwest’’ (IEc 2020). The Brattle Report did not include a sensitivity analysis to address the uncertainty of effects associated with critical habitat. Fourth, concerning estimated stumpage values, as IEc noted in their review, our FEA ‘‘recognized that prices vary across forest, land manager, and year, and that future prices were uncertain. The analysis captured annual average prices from Federal timber sales on BLM and USFS managed lands between 2000 and 2011. The low-end price ($100 per thousand board feet (mbf)) was similar to more recent prices (as of 2012) from Federal timber sales, which had been below historical averages. The higher end was selected to purposely capture the highest price received since the year 2000. This high price, therefore, served as a conservative approach, meaning it would yield the highest negative impacts from any constraints on timber harvest volumes due to critical habitat designation. Beyond this range, the 2012 economic analysis conducted a further sensitivity analysis based upon a comment received from AFRC. In this scenario, an even higher price of $350 per mbf was analyzed for its effect and included in the economic analysis. Thus, the original range and further sensitivity analysis captured a reasonable upper and lower bound of the role of timber prices on potential impacts. In contrast, the Brattle report uses similar average stumpage prices from similar sources, but only from 2018 to 2020, a much shorter time frame. In addition, its price range of $83 to $191 per mbf is consistent with the price range used in the 2012 report, especially when considering the passage of eight years and the general market volatility of lumber prices.’’ (IEc 2020). In sum, the Brattle reports and associated commenters concluded that the total effect of these alternative inputs is a higher measure of negative annualized timber harvest impacts across the total of potentially affected acres compared to what was estimated in the FEA (IEc 2012) ($66 to $77 million estimated in the Brattle Report, $66 to $85 million in the supplement, versus $6.5 million in the FEA). As noted above, the Brattle supplement added the distribution of its overall measure of impacts across the designation’s subunits. Understanding E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62626 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations relative impacts by discrete areas of critical habitat is a necessary aspect of an accurate benefits-weighing process. We note that the Brattle reports include additional conclusions, such as effects on Gross Domestic Product and employment. However, these conclusions are based on the assumptions we discuss above, which are misapplied or cannot be confirmed with the methods provided. Therefore, for the reasons discussed above, we do not consider the Brattle reports to be the best scientific and commercial data available, and we do not agree with the conclusions of the Brattle reports and the comments that rely on them. More specific analysis of the Brattle reports can be found in our record on this rulemaking (IEc 2020, 2021). The January Exclusions Rule considered the negative economic impacts on rural communities of the critical habitat designation and the listing of the northern spotted owl in its weighing of the benefits of excluding 3.4 million acres against the benefits of inclusion and concluded that the benefits of exclusion outweighed the benefits of inclusion. We do not now find these conclusions to be appropriate; see our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts under Section 4(b)(2) of the Act. (b) The Brattle Report included information on annual timber harvest levels on Federal lands in 18 counties within California, Oregon, and Washington, from 2002 through 2018. The report concluded that these data demonstrate that timber harvest in these counties declined as a direct consequence of the 2012 critical habitat designation. Our response: We acknowledge that the listing of the northern spotted owl in 1990, in addition to other social and economic factors, affected timber industry employment and establishments (Ferris and Frank 2021, p. 12). However, we have reviewed the information in the Brattle Report and found significant errors and unsubstantiated assumptions. First, 4 of the 18 counties cited in the analysis (Calaveras, Riverside, and Mono in California, and Morrow in Oregon) are located outside of the range of the northern spotted owl and do not contain designated northern spotted owl critical habitat, so the designation would not have impacted timber harvest in these counties. The Brattle supplement states that this information was provided for context, although it does not explain how referencing this VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 context aids in assessment of impacts from the northern spotted owl. In fact, the data from these counties document that timber harvest and related economic patterns were concurrently volatile in rural counties outside the range of the spotted owl, suggesting larger market forces were impacting timber markets both within and outside the range of the owl. Second, of the remaining 14 counties cited in the report that contain some spotted owl critical habitat, the Brattle reports describe timber harvest declines occurring in 7 counties somewhere around (i.e., proximally before and after) the year 2012, stable or flat trends in 3 counties, and increased harvest levels in 4 counties. Of the declines highlighted by the commenter, several began prior to the designation in December 2012, casting doubt on the potential direct impact of the 2012 designation. Almost all of these counties also show large fluctuations in harvest levels between years going back to 2002, indicating that there are likely other confounding economic and logistical factors influencing these dynamic timber harvest levels aside from the 2012 critical habitat designation, as described in our response to Comment (22). Third, the analysis provided charts of harvest decline in specific counties within the critical habitat designation. A rapid assessment of the same data source cited by the commenter, but evaluating a random number of additional counties in Oregon, Washington, and California in the range of the northern spotted owl, revealed no discernible pattern in timber harvest declines that could reasonably be attributed to the 2012 critical habitat designation. Some counties experienced general increases in timber harvest after 2012, some declined, and some were relatively flat when compared to longterm trends. A similar pattern of fluctuation exists for individual counties located outside of the range of the spotted owl but within Oregon, Washington, and California, as well as in other western States. Most of these counties showed wide fluctuations in timber harvested on Federal lands, both before and after 2012, again indicating the influence of factors other than the designation of critical habitat. Using the same data source cited by this commenter (with 2019 data from BLM and USFS on timber volume offered for sale), we reviewed Federal land harvest data in Oregon counties that are within the northern spotted owl critical habitat designation. The annual average harvest from 2002 through 2012 on all BLM lands in the range of the spotted owl was approximately 159 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 million board feet per year prior to the 2012 critical habitat designation. The annual average harvest on BLM lands located in the range of the spotted owl from 2013 through 2019, after the 2012 critical rule was published, was 235 million board feet; the total in 2020 was 249 million board feet offered for sale (BLM 2021a). Thus, rather than suffering a decline, annual harvest appears to have increased substantially subsequent to the 2012 designation of critical habitat. Likewise, the annual average harvest from 2002 through 2012 on USFS lands located within the range of the spotted owl was approximately 196 million board feet per year prior to the 2012 critical habitat designation. The annual average harvest on USFS land from 2013 through 2019, after the 2012 critical rule was published, was 288 million board feet. We also reviewed Federal harvest data in Oregon counties outside the range of the spotted owl (and therefore in counties with no spotted owl critical habitat or obligation for Federal agencies to consult under ESA section 7) and saw harvest volume fluctuations similar to those in counties located within critical habitat. Based on these data it does not appear that designation of critical habitat in 2012 had a significant incremental depressive effect on subsequent Federal timber harvest. Comment (22): Douglas County requested that the Service exclude all land within Douglas County from the critical habitat designation due to severe and disproportionate economic impacts. The County provided a 2007 report that discusses the negative economic impacts of reduced harvest on Federal lands. Additionally, Douglas County asserted that our FEA is flawed with respect to Douglas County and should be revised. Among other exclusions that are addressed in Comments (25–28), Douglas County requested that all private and State lands, and county lands specifically in Oregon, be excluded. Our response: The report provided by Douglas County focuses on the impact that termination of ‘‘safety net’’ payments under the Secure Rural Schools and Community SelfDetermination Act would have on counties in western Oregon. The report discusses reductions in harvest on Federal lands in the O&C counties attributable to a range of factors, resulting in a loss of revenue sharing that limited county budgets and rapid contractions of the wood products sector as logging declined and mills closed or reduced shifts. The report, prepared in 2007, does not discuss impacts of the critical habitat E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations designation but describes general pressures on the timber industry. In addition, during this same time period, timber-related tax revenue flowing to Oregon counties has declined due to large reductions in State and local property and severance taxes on private timber lands. According to one in-depth analysis, half of Oregon’s 18 western counties lost more revenue due to tax cuts on private lands than they did due to reductions in Federal timber harvest levels (Younes and Schick 2020). It is unclear if the Brattle analysis incorporated this data into its analysis of net declines in timber revenue to local economies. Our FEA (IEc 2012) addressed the incremental effects of critical habitat within the area proposed for designation for the northern spotted owl. Consistent with our practice at the time (now codified in regulations) the FEA quantifies the economic impacts that may be directly attributable to the designation of critical habitat, comparing scenarios both ‘‘with critical habitat’’ and ‘‘without critical habitat.’’ Our incremental analysis did not consider the economic impact of changes other than from the proposed revised critical habitat designation, and did not evaluate the economic condition or status of the timber industry at large. Rather, it addressed the effects related to the impacts to Federal agencies and their activities, because Federal agencies are the only entities directly subject to the requirement to evaluate and consider effects of their actions on designated critical habitat. Nonetheless, we acknowledged that, ‘‘[m]ultiple forces have contributed to the recent changes in the Pacific Northwest timber industry. In general, the timber industry is characterized as being highly competitive; there is a relatively low degree of concentration of production among the largest producers and there is essentially a single national price for commodity grades of lumber. In recent decades, competition has intensified with increased harvesting in the U.S. South and interior Canadian Provinces. New technologies and increased mechanization have led to mill closures; generally, less efficient mills located near Federal forests have been closed in favor of larger, more advanced facilities closer to major transportation corridors or private timberlands. In addition, other forces such as endangered species protections, fluctuations in domestic consumption, shifts in international trade, and changes in timberland ownership, have all contributed to changes in the Pacific Northwest timber industry’’ (IEc 2012, p. 3–17). VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 We acknowledge that Douglas County has experienced significant economic strain, but we conclude that the economic impacts analysis we conducted with the 2012 critical habitat designation remains an accurate assessment of the incremental economic effects of the designation of critical habitat, and does not provide a basis from which to exclude all of the areas of critical habitat currently designated in the county. Regarding Douglas County’s request that we exclude private, State, and county lands, there are no private lands designated as critical habitat for the northern spotted owl; we primarily relied on Federal lands, with a small amount of State and local government lands, to meet the conservation needs of the northern spotted owl. We did not designate any county lands in Oregon as critical habitat. We did designate areas on some State lands in Washington, Oregon, and California where Federal lands are not sufficient to meet the conservation needs of the northern spotted owl. In our final 2012 designation, we excluded State parks and natural areas and lands in Washington covered by a habitat conservation plan. See our Process for Exercising Discretion to Conduct an Exclusion Analysis in Consideration of Impacts Under Section 4(b)(2) of the Act. Comment (23): One commenter noted that a 2012 economic analysis from the Sierra Institute, ‘‘Response to the Economic Analysis of Critical Habitat Designation for the Northern Spotted Owl by Industrial Economics’’ (Kusel and Saah 2012), was not fully considered in the 2012 designation and that a new economic analysis should be conducted. Our response: The Service fully considered the content of the Kusel and Saah report and found a great deal of overlap between that economic analysis and the FEA contracted by the Service and written by Industrial Economics (IEc 2012), even incorporating a summary of the Kusel and Saah report (2012) (see our response to Comment (201) in the December 4, 2012, critical habitat rule (77 FR 71876, p. 72040)). The Service maintains that the FEA conducted for the 2012 critical habitat designation (IEc 2012) is the most accurate reflection of the potential economic impacts of that designation (77 FR 71876). We have reviewed the FEA (IEc 2012) and determined that because we are proposing only to exclude (i.e., remove) additional areas from critical habitat and are not adding any new areas not included in the 2012 designation, the economic impact will PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 62627 be further reduced and a new analysis is not necessary. Environmental Analysis Comments Comment (24): Commenters expressed that the Service must conduct a NEPA analysis and evaluate the exclusions in a biological opinion before finalizing exclusions. Our response: It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit (see Catron County Board of Commissioners, New Mexico v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996)), we do not need to prepare environmental analyses pursuant to 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 in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995). Other than a small amount of Indian lands (which were previously managed by the BLM), the Service is only excluding lands identified for timber harvest under the 2016 BLM RMPs. These RMPs underwent rigorous NEPA review, including public comment on the identification of the Harvest Land Base lands. The Service then completed a Biological Opinion on these RMPs, which included an analysis of the effects of proposed timber harvest in designated critical habitat, and concluded that timber harvest under the plan would not adversely modify the critical habitat. Therefore, consistent with the ruling in Douglas County, conducting a NEPA analysis and a biological opinion on the proposed exclusions would be redundant, and an inefficient use of limited government resources. As we are withdrawing the exclusions finalized in the January Exclusion Rule, we make no assessment of whether or not a NEPA analysis and biological opinion on those exclusions would have been required. 4(b)(2) Exclusions Comments The Secretary has discretion whether to conduct an exclusion analysis under section 4(b)(2) in accordance with our regulations at 50 CFR 17.90(c). The Secretary will conduct an exclusion analysis when the proponent of excluding a particular area (including but not limited to permittees, lessees or others with a permit, lease, or contract on federally managed lands) has presented credible information regarding the existence of a meaningful economic or other relevant impact E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62628 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations supporting a benefit of exclusion for that particular area. We provide our evaluation of whether commenters requesting the exclusions below have provided this credible information in Consideration of Impacts Under Section 4(b)(2) of the Act under the section entitled Process for Exercising Discretion to Conduct an Exclusion Analysis. Comment (25): Commenters variously requested that we exclude all O&C lands; all USFS matrix lands; all USFS and BLM lands; BLM lands outside the Harvest Land Base; and specifically, all Douglas County lands. We respond separately to each reason provided for these suggested exclusion requests first (except for assertions of economic impacts, which are addressed above in response to Comments (20– 23)), and then provide a collective summary: (a) Commenters asserted that critical habitat conflicts with BLM and USFS management direction and constrains timber harvest, including salvage harvest, on O&C lands and matrix lands. Our response: We determined in our section 7 consultation on the BLM RMPs that BLM’s management direction was consistent with the Endangered Species Act and that the actions proposed within the plans, including timber harvest in the Harvest Land Base on O&C lands over a 50-year timeframe, did not result in adverse modification of the designated critical habitat. Similarly, our consultations under section 7 with the USFS for its harvest actions carried out under the NWFP on matrix and O&C lands since the 2012 designation of critical habitat have resulted in determinations that the actions did not adversely modify critical habitat or jeopardize the continued existence of the northern spotted owl. Thus, these agencies have not been precluded from implementing timber harvests within designated critical habitat; they can and do implement harvest actions within critical habitat consistent with their management plans. As described in previous responses to comments, average annual timber harvest on these lands has actually increased after the 2012 designation. Additionally, as an example, in response to the 2020 wildfire season, we recently consulted on salvage harvest projects in critical habitat in the areas of the Archie Creek and South Obenchain wildfires to allow the BLM and the USFS to recover the economic value of trees proposed for removal. Critical habitat did not impede these projects from going forward nor did it require additional project changes to the actions the agencies proposed. VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 (b) There are conflicting principles between the O&C Act and the Endangered Species Act, and the Service should consider the pending court remedy on O&C lands. One commenter suggested that we wait for the outcome of that proceeding before revising critical habitat; another commenter indicated the court ruling, even without the remedy order, supported the exclusion of all O&C lands from designated critical habitat. Our response: We note that there is ongoing litigation challenging BLM’s management of O&C lands under the 2016 RMPs (BLM 2016a, 2016b). As we described in the proposed rule, one district court has upheld the RMPs in challenges asserting non-compliance with the Endangered Species Act, a conclusion affirmed by an appellate court (see Pac. Rivers v. U.S. Bureau of Land Mgmt., No. 6:16-cv-01598- JR, 2019 WL 1232835 (D. Or. Mar. 15, 2019), aff’d sub nom. Pac. Rivers v. Bureau of Land Mgmt., 815 F. App’x 107 (9th Cir. 2020). In a separate proceeding a district judge on the U.S. District Court for the District of Columbia found that the BLM RMPs violate the O&C Act because BLM excluded portions of O&C timberland from sustained yield harvest (i.e., the BLM allocated some timberlands to reserves instead of the Harvest Land Base); see, American Forest Resource Council et al. v. Hammond, 422 F.Supp.3d 184 (D.D.C. 2019). The parties briefed the court on the appropriate remedy, but the court has not yet issued an order. We considered this information in developing the proposed rule, and sought comment specifically on how we should address this information in the rule. This final rule is based on the 2016 RMPs as they are, and not as they may be modified in the future. The ultimate litigation outcome challenging the BLM’s management of O&C lands is not certain. We acknowledge the potential for future reductions in the BLM reserve land-use allocations and changes in the Harvest Land Base. We will continue to monitor the litigation and once it has concluded (including any land-use planning if undertaken) will assess whether revisions to this designation are appropriate to propose. See also our response to Comment (6). (c) Commenters asserted that O&C lands managed by the BLM and lands managed by the USFS should be excluded because the NWFP and RMPs should guide management on Federal lands since they are consistent with the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011). PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 Our response: The Service agrees the NWFP and RMPs guide management on Federal lands, as informed by other plans, laws, designations and input. Federal land managers are skilled at incorporating a wide variety of required inputs and feedback when planning and carrying out land management actions, including public comment under the National Environmental Policy Act, recommendations from listed species’ recovery plans, input from the Service and National Marine Fisheries Service through the section 7 consultation process, growth and yield models, and critical habitat designations, to name just a few. The BLM RMPs have undergone section 7 consultation recently, in 2016, with the 2012 spotted owl critical habitat rule in place and were found to be consistent with the Endangered Species Act, including our determination that the management direction of the plans is consistent with the critical habitat designation. In contrast, we have not conducted an updated programmatic review of USFS land management plans as was done with BLM plans in 2016. All USFS actions carried out under the NWFP since the 2012 designation of critical habitat that may affect that habitat have undergone section 7 consultation on a project-by-project basis and have been found to be consistent with the Endangered Species Act. Our January Exclusions Rule comment response stated that these consultations were sufficient to support exclusion of the USFS land areas because it supported the then-Secretary’s determination that extinction would not result. However, without a programmatic-scale look at USFS land management plans we lack the updated broad-scale information and assessment of the effects of harvest within designated critical habitat that would be necessary to sustain additional exclusions of all USFS O&C lands, whether they are located in reserves or in areas targeted for timber harvest. See our response to Comment (11) concerning the remaining O&C lands in the final critical habitat designation. See also our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act. (d) Commenters stated that non-O&C BLM lands should be excluded for ease of administration. Our response: We are excluding lands within the BLM Harvest Land Base and certain Indian lands in this rulemaking, including some non-O&C lands managed by BLM. Over 90 percent of E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations the Harvest Land Base occurs on O&C lands, but we also included the portion of the Harvest Land Base that does not occur on O&C lands in this exclusion. See responses to Comments (11) and (16) for an explanation of why additional lands managed by BLM are essential to the conservation of the northern spotted owl and are thus not being excluded. (e): Commenters stated that our reliance on the management under the BLM RMPs (BLM 2016a, 2016b) as a rationale for excluding the Harvest Land Base in those plans should also be applied to considering all O&C lands addressed in those plans, and that we should also rely on a similar rationale for excluding O&C lands and matrix lands managed by the USFS under the protections of the NWFP for exclusions. Our response: See our response to Comment (25c) above. Additionally, we acknowledge the continuing concern over the inclusion of O&C lands in the designation of critical habitat for the northern spotted owl. Since the mid1970s, scientists and land managers have recognized the importance of forests located on portions of O&C lands for the conservation of the northern spotted owl and have attempted to reconcile this conservation need with other land uses (Thomas et al. 1990, entire). Starting in 1977, BLM worked closely with scientists and other State and Federal agencies to implement northern spotted owl conservation measures on O&C lands. Over the ensuing decades, the northern spotted owl was listed as a threatened species under the Act, critical habitat was designated (57 FR 1796, January 15, 1992) and revised two times (73 FR 47326, August 13, 2008; 77 FR 71876, December 4, 2012) on portions of the O&C lands, and a Recovery Plan for the owl was completed (73 FR 29471, May 21, 2008, p. 29472) and revised (76 FR 38575, July 1, 2011). These and other scientific reviews consistently recognized the need for large portions of the O&C forest to be managed for northern spotted owl conservation while also providing for other uses of these lands. In 2016, the BLM revised their RMPs providing direction for the management of approximately 2.5 million acres (1 million hectares) of BLM-administered lands, which includes most of the O&C lands, for the purposes of producing a sustained yield of timber, contributing to the recovery of endangered and threatened species, providing clean water, restoring fire-adapted ecosystems, and providing for recreation opportunities (BLM 2016a, p. 20; BLM 2016b, p. 20). The BLM RMPs revised VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 the land-use allocations of BLMmanaged lands in western Oregon. We noted in the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011, p. II–3) that the functionality of the critical habitat designation on BLMmanaged lands and rangewide was anticipated to improve, in part as the land management agencies updated their land management plans to incorporate the Recovery Plan’s recommendations. The total Harvest Land Base land use allocation on BLM lands, a portion of which is critical habitat and is now being excluded from critical habitat, comprises 19 percent (469,215 acres (189,884 hectares)) of the overall land use allocations described in the RMPs and is where the majority of programmed timber harvest will occur (FWS 2016, p. 9; BLM 2016a, pp. 59– 63). Approximately 172,712 acres (69,779 hectares) of the Harvest Land Base being excluded herein is O&C lands. Our analysis of the impacts to the habitat within the Harvest Land Base recognized that this land use allocation was not intended to be relied upon for demographic support of northern spotted owls (FWS 2016, p. 553). Thus, through our analysis conducted for the section 7 consultation for the 2016 RMPs, we have evaluated the role that these lands have in the recovery of the northern spotted owl. Based on that, we reconsidered the relative value of including them in a critical habitat designation. The O&C lands that remain within the critical habitat designation with this final rule are composed primarily of Late-Successional Reserve on BLM and USFS lands, and some forest ‘‘matrix’’ lands in National Forests where timber harvest was programmed to occur under the 1994 NWFP. Our modeling results for the 2012 critical habitat designation indicated that the O&C lands make a significant contribution toward meeting the conservation objectives for the northern spotted owl. As described in the section, Changes From the Proposed Rule, in the December 4, 2012, critical habitat rule (77 FR 71876; p. 71888), we tested possible habitat networks without many of the BLM (now Harvest Land Base) and USFS matrix lands, which resulted in a significant increase in the risk of extinction for the northern spotted owl (Dunk et al. 2012, pp. 57– 59; Dunk et al. 2019, Figure 8). Likewise, in addition to our modeling results, peer review of both the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) as well as our proposed rule to revise critical habitat in 2012 indicated that retention of highquality habitat in portions of the matrix PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 62629 is essential for the conservation of the subspecies. Thus, while the exclusion of the Harvest Land Base acreage as described will not jeopardize the subspecies (as assessed in our Biological Opinion on the 2016 RMPs), the O&C lands and USFS matrix lands that remain within the designation remain essential to the conservation of the northern spotted owl. Comment (26): Commenters requested that we exclude: Areas of younger forests; all critical habitat subunits that have 50 percent or more younger forests; areas that are not currently occupied by northern spotted owls; all unoccupied areas; unoccupied USFS matrix and adaptive management area lands; ‘‘habitat capable’’ lands; stands under 80 years old; and low-quality habitat; and areas described as dispersal habitat. We respond separately to these exclusion requests below: (a) Commenters asserted that younger forests, including stands under 80 years old, areas that are not currently occupied by northern spotted owls, and ‘‘habitat capable’’ lands do not currently provide habitat to the northern spotted owl. Commenters assert that an area is not habitat if modification or natural growth is required before it could actually support the subspecies. Comments stated that areas of younger forests and subunits dominated (greater than 50 percent) by younger forests should be excluded and that the benefits of including these areas is negligible. Some commenters provided a report and data showing areas within the critical habitat designation that had been harvested, experienced severe wildfire (see our response to Comment 27), or are smaller fragmented parcels (see our response to Comment 28) (Mason, Bruce and Girard 2021 in AFRC 2021, appendices A–D). Commenters stated that even with these exclusions there would still be protections for the subspecies due to section 7 obligations. Our response: Younger forests are typically the result of past timber harvest, wildfire, or some other form of disturbance. Areas of younger forest in the critical habitat designation are part of the forest mosaic essential for the northern spotted owl. The fact that some younger forests may contain few habitat characteristics preferred by owls does not mean that such areas are not habitat for the owl—some areas may be, others may not be, depending on the sitespecific characteristics. Nor does the Act preclude designation of areas that currently function as habitat for the northern spotted owl but are dynamic, such as a forested environment in which younger trees naturally grow over time and the area thereby transitions from E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62630 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations functioning primarily as dispersal or foraging habitat to the subspecies’ preferred roosting and nesting habitat consisting of older stands. The Service’s rule does not describe or anticipate modifications or natural changes to the designated areas for them to qualify as critical habitat or represent current habitat for the subspecies; indeed, the regulation explicitly indicates that ‘‘[n]othing in this rule requires land managers to implement, or precludes land managers from implementing, special management or protection measures.’’ 50 CFR 17.95 (entry for northern spotted owl at paragraph 4). As to ‘‘occupied’’ versus ‘‘unoccupied’’ habitat, the commenter may be confusing the use of the term ‘‘occupied’’ as used when designating critical habitat, with the concepts of presence or absence of a species in section 7 consultations, which can also refer to the ‘‘occupancy’’ of the species at the time of the consultation. The two are not the same. The Service is required to designate critical habitat based on the occupied habitat ‘‘at the time of listing’’ which in the case of the northern spotted owl was 1990. After 1990, whether or not the species ‘‘occupies’’ that specific habitat does not dictate whether the area is critical habitat. Rather, in our evaluation in a section 7 consultation for effects of a Federal action on specific designated critical habitat, we evaluate the effects to the physical and biological features of critical habitat and the post-project functionality of the network to provide for connectivity at the subunit, unit, and designation scales to ensure the landscape continues to support the habitat network locally, regionally, and across the designation. This evaluation is not conditional on critical habitat being currently occupied. Rather, ‘‘occupancy’’ at the time of a specific action resulting in a section 7 consultation is generally most relevant for assessing whether the proposed Federal action will ‘‘jeopardize’’ the species, or incidentally ‘‘take’’ the species. See also our response to Comment (3). As was explained in the 2012 critical habitat designation, although some areas of younger forests may not have been used as nesting habitat by northern spotted owls at the time of listing, younger forests are often used by owls for dispersal or foraging behavior, both of which are essential life functions, and thus are considered as ‘‘occupied’’ for the purposes of critical habitat designation. Including these areas within the designation is beneficial because they provide the physical and biological features that currently VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 support owl life functions (e.g., dispersal) and contain the habitat elements conducive to developing the physical or biological features of the higher-quality nesting and roosting habitat (they are of suitable elevation, climate, and forest community type over time). While some areas may not be used for nesting by spotted owls and may be lacking some element of the physical or biological features, such as large trees or dense canopies that are associated with the higher quality nesting habitat, these areas contain the dispersal and foraging habitat to support movement between adjacent subunits and are therefore essential to provide population connectivity for the northern spotted owl. In addition, northern spotted owls are regularly reproductively successful in home ranges that comprise a mosaic of habitat, including older and younger forest. Northern spotted owls have in fact been found occupying lower quality habitat consisting of younger forested stands, particularly when higher quality habitat is not available in the area (Glenn et al. 2004). The critical habitat designation included younger forests that are in proximity to older forests to contribute to northern spotted owl occupancy and reproduction. In response to ‘‘habitat capable’’ lands, see our response to Comment (29c) below. In response to continuing section 7 obligations, see our response to Comment (3). (b) Commenters stated that the description of dispersal habitat is unclear and that the Recovery Plan for the Northern Spotted Owl (FWS 2011) states that dispersal needs have not been thoroughly evaluated and therefore dispersal habitat is not determinable. Commenters further stated that habitat that does not meet a minimum threshold of 11 inches (in) (28 centimeters) (cm) diameter at breast height (dbh) does not meet the definition of dispersal habitat. Our response: There are sufficient data and scientific information to include dispersal habitat as a habitat type for northern spotted owl critical habitat. Ideally, dispersal habitat consists of higher-quality nesting, roosting, and foraging habitat, but in cases where the landscape does not support those habitat types, spotted owls will disperse through younger habitat as described in the 2012 critical habitat rule (FWS 2012, p. 71907). The Service focused on defining the lower limit for forest stands that support the transient phase of northern spotted owl dispersal as stands ‘‘with adequate tree size and canopy closure to provide protection from avian predators and PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 minimal foraging opportunities’’ (FWS 2011, p. A–8). Corridors that contain these minimum characteristics for dispersal habitat, such as forested corridors through fragmented landscapes, serve primarily to support relatively rapid movement through such areas, rather than colonization (FWS 2012, p. 71901). In general, these areas contain trees with at least, but not limited to, 11 in (28 cm) dbh and a minimum 40 percent canopy cover. For instance, northern spotted owls will also disperse though non-forested areas, such as clearcuts, although they use them less than expected based on availability (Miller et al. 1997, p. 145). The risk of dispersing through a landscape of minimum or lower quality dispersal habitat is not well understood. Buchanan (2004, p. 1341) evaluated this risk, concluding that ‘‘strategies for management of spotted owl dispersal habitat may not produce conditions preferred by spotted owls and may result in dispersal-related mortality (due to starvation or predation) or other consequences that negatively influence juvenile recruitment.’’ The relative effect to spotted owls dispersing though a lower-quality stand and landscape is the issue that has not been ‘‘thoroughly evaluated or described’’ (FWS 2011, p. vi), as opposed to the value of dispersal habitat generally for northern spotted owls. Mortality rates of juvenile dispersal exceed 70 percent in some studies, with known or suspected causes of mortality during dispersal including starvation, predation, and accidents (FWS 2011, p. A–7). In addition to assisting with dispersal in support of northern spotted owl life functions, young stands also assist in addressing the long-term viability and recovery of the owl. Habitat loss and degradation were identified as major threats to the northern spotted owl at the time of listing, and conservation and recovery of the subspecies are dependent in part on the development of currently low-quality habitat into high-quality habitat to allow for population growth and recovery (77 FR 71876; p. 71917). Younger forests that meet the dispersal characteristics described in the 2012 designation provide for this environment as the stands age and develop the complex structural components of that higher quality habitat. To summarize, there is a clear biological need for young forests to contribute to spotted owl recovery both as dispersal habitat and as future breeding habitat to support population growth and recovery. Ideally, dispersal habitat consists of a large percentage of older habitat on the landscape, but younger stands also support movement E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations and are necessary where older habitat is lacking. Additionally, dispersal habitat is a biological need of the subspecies due to the need for successional development to supply additional older, higher-quality habitat to address past and future habitat loss within critical habitat. Comment (27): Commenters requested that we exclude all California lands, areas of high or moderately high fire hazard risk or fire-prone forests, entire subunits in fire-prone areas, dry forest in California, dry forest in the Eastern Washington Cascades, areas that have experienced high-severity wildfire, and previously burned Late-Successional Reserve, citing the following rationale: (a) Commenters stated that a conflict exists between critical habitat and management objectives for fuels reduction and active management, and that wildfire suppression costs are immense. They asserted that exclusion of certain lands would facilitate density management, dry forest restoration, and fuels reduction on the most vulnerable acres and prevent loss of northern spotted owl habitat. Our response: In the 2012 critical habitat rule, the Service accounted for the drier provinces and parts of the range and recognized that forest management needs to be tailored to the forest type and climatic conditions, including the dry forests in California and the Eastern Washington Cascades. As part of the critical habitat rule, the Service expressly encouraged land managers to consider implementation of active forest management, using ‘‘ecological forestry’’ practices, to restore natural ecological processes where they have been disrupted or suppressed (e.g., natural fire regimes). This flexibility is provided to reduce the potential for adverse impacts associated with commercial timber harvest when such harvest is planned within or adjacent to critical habitat and consistent with land-use plans (77 FR 71876; p. 71877). On page 71908 of the December 4, 2012, critical habitat rule (77 FR 71876), we stated that, in drier, more fire-prone regions of the owl’s range, habitat conditions will likely be more dynamic, and more active management may be required to reduce the risk to the essential physical or biological features from fire, insects, disease, and climate change, as well as to promote regeneration following disturbance. The Service recognizes that land managers have a variety of forest management goals, including maintaining or improving ecological conditions where the intent is to provide long-term benefits to forest VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 resiliency and restore natural forest dynamic processes (FWS 2011, III–45). The Service has consulted under section 7 with Federal agencies on their fuels reduction, stand resiliency, and pine restoration projects in dry forest systems within the range of the northern spotted owl. For example, we have consulted with the BLM and the USFS on such actions in the Klamath Province of southern Oregon. The proposed actions may include treatment areas that reduce forest canopy to obtain desired silvicultural outcomes and meet the purpose and need of the project, including timber production. They can also promote ecological restoration and are expected to reduce future losses of spotted owl habitat and improve overall forest ecosystem resilience to climate change. We have to date concluded in these consultations that the actions do not adversely modify critical habitat. Thus, active management to reduce wildfire risk can and has been undertaken in designated critical habitat. In the 2012 critical habitat rule, we repeatedly reference the need for and appropriateness of conducting forest health treatments in spotted owl habitat, including designated critical habitat. Likewise, the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) encourages application of active forest management within spotted owl habitat to address forest health, wildfire risk, and impacts of climate change. Lastly, the 2016 Biological Opinion on the BLM’s 2016 RMPs generally supports this need as well. In sum, there are almost always conflict and tradeoffs when conducting silvicultural projects that disturb existing forest stands. Spotted owl habitat conservation is just one of these tradeoffs; others include water quality, recreation, carbon sequestration, aesthetic values, economic opportunity, safety, and fire risk, to name a few. The 2012 critical habitat rule and other documents prepared by the Service both before and after 2012 provide support for evaluating these tradeoffs and, where appropriate, proceeding with fuels management projects within critical habitat (Henson et al. 2013). The commenters’ assertion that critical habitat conflicts with management objectives for fuels reduction and active management is overstated; therefore, we find this rationale does not support consideration of exclusion of additional lands. (b) Commenters requested the exclusion of burned areas to allow reforestation and fuels treatments to occur, stated that fire-dependent landscapes should be excluded because PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 62631 critical habitat does not benefit conservation or forest management in these areas. Commenters also stated that areas that have experienced highseverity burns no longer provide habitat for the northern spotted owl. Our response: Northern spotted owls use previously burned areas for foraging and nesting/roosting depending on the habitat conditions post-fire (Gaines et al. 1997, King et al. 1998, Bond et al. 2002, Jenness et al. 2004; Clark 2007; Bond et al. 2009, Clark et al. 2011; Roberts et al. 2011; Lee et al. 2012; Clark et al. 2013; Bond et al. 2016; Jones et al. 2016; Bond et al. 2016; and Eyes et al. 2017). For example, in southwestern Oregon, spotted owls used areas that burned at all levels of burn severity, although they preferred areas that were unburned or burned at low to moderate severity (Clark 2007, pp. 111–112). Spotted owls use all burn severities and fire-created edges at different spatial scales, although the use may change over time and be dependent on proximity to existing high-quality nesting, roosting, and foraging habitat where protective cover and structural complexity were not as affected by fire. In addition, the critical habitat rule provides the flexibility to conduct fuel treatments and reforestation activities, whose contribution to northern spotted owls will be amplified when conducted consistent with Recovery Action 12 (FWS 2011, p. III–49): ‘‘In lands where management is focused on development of spotted owl habitat, post-fire silvicultural activities should concentrate on conserving and restoring habitat elements that take a long time to develop (e.g., large trees, medium and large snags, downed wood).’’ Additionally, natural disturbance processes, especially in drier regions, likely contribute to a pattern in which patches of habitat in various stages of suitability shift positions on the landscape through time. Sufficient area to provide for these habitat dynamics and to allow for the maintenance of adequate quantities of suitable habitat on the landscape at any one point in time is, therefore, essential to the conservation of the northern spotted owl. The recent loss of older habitat due to the 2020 and 2021 wildfires underscores the need for biological redundancy in the critical habitat designation to accommodate these habitat changes over time. We do not remove these areas from the designation when these changes occur, we anticipated this shift in suitability in the overall design of the critical habitat network. Because northern spotted owls use burned areas, and because management E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62632 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations activities such as reforestation may still occur within designated critical habitat, we do not agree with the commenter and find there is not sufficient credible information and rationale to support consideration of exclusion of burned areas from the designation. Additionally, the conservation of the northern spotted owl relies on a forested landscape that is provided for in the critical habitat designation and the designation of these areas benefits the subspecies by ensuring that the special management considerations identified in the 2012 critical habitat rule are considered in the design and implementation of forest management actions. We recognize that some areas may decrease or increase in habitat quality over time based on disturbance events and natural growth. These habitat changes are inherent to a forest mosaic and were considered in our overall critical habitat designation. (c) Commenters asserted that ‘‘habitat capable’’ lands do not meet the definition of critical habitat. Our response: We did not include lands described as ‘‘habitat capable’’ in the final critical habitat designation (77 FR 71876). We did include areas that contain dispersal and foraging habitat to support movement between adjacent subunits that we determined are essential to provide population connectivity. Many of these areas are also anticipated to develop into older and more complex habitat preferred by nesting pairs in the future. We note that various agencies may refer to ‘‘capable habitat,’’ but we did not describe or designate ‘‘capable habitat’’ in the designation. We used the term ‘‘capable’’ in several portions of the 2012 designation to describe habitat areas that are already providing some function to support spotted owl life history (e.g., dispersal), but that are also capable and likely to develop into higher quality habitat that northern spotted owls prefer for additional life functions, such as nesting, roosting, or foraging, over time. Comment (28): Commenters requested that we exclude areas of less than 3,000 contiguous acres (1,214 hectares) and smaller, fragmented parcels because areas these small cannot support northern spotted owls. Our response: Northern spotted owl home ranges (also referred to as home territories) vary in size across the range of the subspecies from about 3,000 acres (1,214 hectares) in the southern part of the range to more than 9,000 acres (3,642 hectares) in Washington. Northern spotted owl home ranges comprise forested landscapes that are generally a mix of high-quality habitat VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 with other forest types, disturbed areas, and openings. Data from southern Oregon indicate that northern spotted owl productivity and survival is at its zenith when the home range comprises less than 100 percent mid- and late-seral forests and is mixed with some earlyseral and non-forest (Olson et al. 2004, p. 1050), and northern spotted owls can reproduce successfully in home ranges that contain well less than 100 percent nesting and roosting habitat. This finding indicates northern spotted owl occupancy relies on a mix of forests and age classes within their home ranges. Recovery Action 10 in the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) recommends prioritizing known and historical northern spotted owl sites for reproducing owls when the site condition includes greater than 40 percent high-quality nesting/roosting habitat in the provincial home range (e.g., 1.3-mile radius) and greater than 50 percent high-quality nesting/roosting habitat within the core home range (e.g., 0.5-mile radius) (FWS 2011, p. III–44). In addition, critical habitat is designed to provide for the maintenance of habitat conditions to support northern spotted owl occupancy over time, so areas that today contain less than an entire home range of contiguous highquality habitat increasingly provide value as they develop more complex and high-quality characteristics over time. The areas of less than 3,000 contiguous acres (1,214 hectares) and smaller, fragmented parcels that are designated critical habitat are generally located in close, if not adjacent, proximity to other habitat within and outside the designation and in a spatial configuration that provides for dispersal across the landscape. Given the topographic, geologic, and microclimatic variation in these landscapes, it is normal for there to be some diversity of fragmented and heterogenous habitat conditions with these critical habitat areas. These areas also provide the redundancy built into the critical habitat designation that is necessary given the threats of wildfire and insect losses, particularly in the dry forest provinces. In sum, these areas provide a sufficient amount of habitat to support northern spotted owl home ranges, and dispersal. Because we find that areas of less than 3,000 contiguous acres and the smaller, fragmented areas designated are able to support northern spotted owls, we are not considering excluding these areas. See also Consideration of Impacts Under Section 4(b)(2) of the Act. Comment (29): Commenters requested that we exclude the White Pass Ski Area PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 in Washington to avoid any ambiguity because this acreage does not function as northern spotted owl habitat. Our response: We addressed ski areas in the December 4, 2012, rule under Comment (186) (77 FR 71876; p. 72035): Although ski areas are found on a very small proportion of the Federal forested lands in the Pacific Northwest, our analysis found the lands associated with some ski areas can provide essential northern spotted owl habitat to the critical habitat network. Because of the value of the habitat found around ski areas on Federal lands, impacts to northern spotted owl habitat in these areas are currently subject to the section 7 consultation process for effects to northern spotted owls. Our experience shows that ski area development actions generally tend not to conflict with northern spotted owl and critical habitat conservation needs, so we do not anticipate any significant regulatory burden associated with the continued designation of these lands as critical habitat. Removing lands managed under ski area special use permits would increase fragmentation of the critical habitat network and potentially continuous tracts of northern spotted owl habitat. Therefore, there is a greater benefit to the subspecies associated with retaining habitat located around and adjacent to ski areas in the critical habitat designation. Additionally, as noted in the 2012 critical habitat rule (77 FR 71876; p. 72052), critical habitat does not include: (i) Humanmade structures (such as buildings, aqueducts, runways, roads, other paved areas, or surface mine sites) and the land on which they are located. We interpret this to mean that the developed portion of ski areas would fall within this exception. The January Exclusions Rule found that the benefit of excluding the White Pass Ski Area due to economic impacts outweighed the benefit of inclusion. However, we noted in the FEA (IEc 2012, p. 1–7) completed for the 2012 critical habitat rule that ski area development actions generally tend not to conflict with spotted owl and critical habitat conservation needs, and thus, upon reconsideration, we do not anticipate any significant regulatory burden associated with the designation of these lands as critical habitat (IEc 2012). No information or evidence was presented by the commenters to indicate that the critical habitat designation does or will impair the ski area’s current operations, nor that it will unreasonably restrict any future expansion of the ski area given the small footprint and potential impacts within critical habitat. In sum, developed ski areas meet the E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations definition of areas narratively excepted from critical habitat designation as described above; if in the future the ski area proposes to expand into critical habitat areas, we will continue to work with the USFS and the ski area to efficiently address special management considerations in the operation of the ski area. Comment (30): Certain Tribes requested that Federal lands within 5 miles (8 kilometers) of Indian land be excluded from critical habitat due to economic impacts, the need to maintain road infrastructure to access Indian land in checkerboard ownership, and to provide greater management flexibility to maintain forest health and prevent wildfires. Our response: The Service recognized in the 2012 critical habitat rule the need to actively manage forests, particularly in the drier provinces, to increase their resiliency to wildfires, including ladder fuels reduction, uneven age management, and prescribed burning. This recognition includes the forests that are within 5 miles (8 kilometers) of Indian lands. Existing roads are not considered critical habitat; thus, the designation should not hinder road maintenance anywhere, including access across Federal lands. Likewise, the Service concludes potential incremental economic impacts remain very low, as discussed in previous responses to comments, above. In sum, the critical habitat designation does not preclude active management or road maintenance of the lands adjacent to Indian lands, and we find that the commenter did not provide credible information to support consideration of exclusion of additional Federal lands adjacent to Indian land. Comment (31): Commenters requested that we exclude Adaptive Management Areas and Experimental Forests because placing additional constraints on actions in these areas will limit the ability to conduct scientifically credible work and address wildfire risks. Our response: The opportunities for scientific research and management experimentation associated with experimental forests and Adaptive Management Areas lend themselves to putting into practice the types of timber management the critical habitat rule recommends, thereby serving as a type of field laboratory to try new and alternative approaches that could prove useful in applying those approaches across a greater landscape. Additionally, there is enough flexibility built into the recommendations in the critical habitat rule that experimental forests and Adaptive Management Areas can continue to conduct their valuable work VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 on their landscapes. We have completed section 7 consultations on actions carried out on Adaptive Management Areas since the 2012 designation of critical habitat that may affect that habitat and found those actions to be consistent with the Act. Additionally, our evaluation in the 2012 critical habitat rule found that the seven experimental forests included in the designation contain high-value occupied habitat for northern spotted owls within their borders. In many cases, the habitat in these experimental forests represents essentially an island of high-value habitat in a larger landscape of relatively low-value habitat; this is especially true in the Coast Range, a region where peer reviewers particularly noted a need for greater connectivity and preservation of any remaining high-quality habitat. See our response to Comment (27a) regarding perceived conflicts between the critical habitat designation and active forest management that addresses the risk of wildfire. Comment (32): Commenters asserted that because the barred owl is now widespread and competes with the northern spotted owl, the designated critical habitat lacks the biological features necessary to restore northern spotted owl breeding populations and recover the subspecies and thus should be excluded. Commenters stated that it is unlikely the Service will have the financial and logistical capacity to effectively manage barred owls on all designated critical habitat. Our response: Although Franklin et al. (2021, p. 15) found that barred owl competition is the dominant negative effect on northern spotted owl populations, the authors recognized that habitat loss due to harvest, wildfire, and climatic changes may also continue to negatively affect populations. They emphasized the importance of addressing barred owl management and maintaining habitat across the range of the northern spotted owl regardless of current occupancy to provide areas for recolonization and dispersal (Franklin et al. 2021, p. 18). Although the January Exclusions Rule emphasized barred owls as the primary threat to the northern spotted owl, addressing both the threat of competition with barred owls and habitat loss is important to the survival and recovery of the northern spotted owl. The Service is currently developing a barred owl management strategy to help reduce the effect of barred owls on northern spotted owls. But, a successful barred owl management strategy will be possible only if sufficient habitat for the northern PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 62633 spotted owl remains available for recovery. Forest conditions that support northern spotted owls remain important even when those areas are also occupied by barred owls. Some northern spotted owls continue to occupy their traditional sites even in areas of dense barred owl populations, although they may modify their use of the area and expand their territories. Therefore, habitat remains vital to support these individuals. The essential physical or biological features in terms of forest condition remain present even if not being used currently by territorial spotted owls because of the presence of barred owls. See the primary constituent elements listed in the December 4, 2012, revised critical habitat rule for a description of the physical or biological features that are essential to the conservation of the northern spotted owl (77 FR 71876; p. 72051). Concerning the capacity to effectively manage barred owls, management actions will likely be shared by several Federal agencies as all Federal agencies have a responsibility in the recovery of listed species. Thus, any barred owl management will not be dependent solely on the financial and logistical capacity of the Service alone. Comments on July 20, 2021, Proposed Rule We have incorporated comments received on the July 20, 2021, proposed rule in the preceding comments sections where comments were similar to comments received on the August 20, 2020, proposed rule. In this section, we summarize and respond to the remaining comments received on the July 20, 2021, proposed rule. Comment (33): Conservation groups commented that we should not exclude the Harvest Land Base lands given that recent annual demography reports indicate that management under the 2016 RMPs is not reversing the downward trend in northern spotted owl populations and that the RMPs have yet to demonstrate results. Our response: The Harvest Land Base lands represent a very small fraction of the total designated critical habitat (approximately two percent), and the harvest that is anticipated to occur on these lands is expected to have a relatively small incremental impact on long-term northern spotted owl recovery for several reasons. In the near term, direct take of spotted owls will be minimized or avoided. In the long term, harvest on these lands will be meted out over several decades. During this timeframe we expect habitat conditions E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62634 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations on BLM’s reserve lands to continue improving through natural recruitment and recovery. Thus, at a landscape level and over the decades, the remaining critical habitat on BLM and neighboring USFS lands will provide for spotted owl recovery. In our July 20, 2021, proposed rule, we stated that ‘‘[m]onitoring will assess status and trends in northern spotted owl populations and habitat to evaluate whether the implementation of the RMPs is reversing the downward trend of populations and maintaining and restoring habitat necessary to support viable owl populations (BLM 2016a).’’ Effectiveness monitoring under the RMPs occurs every 5 years in conjunction with the effectiveness monitoring program established under the NWFP. The most recent demographic meta-analysis (Franklin et al. 2021) provided trend data for northern spotted owl populations from 1993 through 2018 (see the results summarized in Comment (13)), and the effectiveness monitoring report for northern spotted owl habitat is due to be released later this year. Thus, Franklin et al. (2021) captures only 2 years of RMP implementation, and this is not a meaningful timeframe over which to evaluate the effectiveness of the BLM’s implementation of the RMPs. We established benchmarks in our biological opinion on the RMPs for evaluating effectiveness of their program; these benchmarks are based on three triggers for reinitiation of the consultation on the RMPs: If a barred owl management strategy and monitoring program does not begin on BLM lands by year 8 of the RMP implementation; if decadal limits for northern spotted owl territorial abandonment are exceeded; and if certain benchmarks for the rate of northern spotted owl population change on BLM lands are not met. The first benchmark for evaluating whether the plan has met the population change trigger will occur in 2029 when the first demographic analysis will be completed following implementation of a barred owl management strategy. Comment (34): Conservation groups commented that we should not exclude the Harvest Land Base because critical habitat benefits the northern spotted owl as an essential tool for recovery that mandates a higher habitat conservation standard in section 7 consultation and provides guidance on the location of areas that are essential to the conservation of the northern spotted owl. They provided scientific literature (Taylor et al. 2005) that supports the effectiveness of critical habitat and found that species with a critical habitat VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 designation are less likely to decline and more likely to recover than species without a critical habitat designation. Our response: We agree with the commenters that critical habitat provides these benefits to the northern spotted owl, and we have considered these benefits in our weighing of the benefits of inclusion versus the benefits of exclusion of the Harvest Land Base lands. See our reconsideration of the weighing of these benefits and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act. Comment (35): Conservation groups, in expressing opposition to our exclusion of the Harvest Land Base lands, commented that our 2016 Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act directs the Service to prioritize the designation of critical habitat on Federal lands because of the affirmative conservation mandate Federal agencies have to utilize their authorities in furtherance of the purposes of the Act and to insure that any actions they authorize, fund, or carry out do not destroy or adversely modify critical habitat; and that exclusions from critical habitat are to focus on non-Federal lands. Commenters further stated that the Service failed to explain how these exclusions will not result in a significant increase in the risk of extinction. Our response: Although the 2012 critical habitat designation preceded the 2016 Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act, we prioritized Federal lands in our designation: 97 percent of the 9.5 million acres (3.8 million hectares) designated are on Federal lands. The policy states that we would focus our exclusions on non-Federal land, but the policy did not preclude us from excluding Federal lands. As we stated in response to a comment on this issue in the 2016 policy, in most cases the benefits of inclusion will outweigh those of exclusion on Federal lands but there may be cases where that is not the case and exclusions of Federal land would be the outcome of the exclusion analysis. In any case, in adopting new regulations regarding section 4(b)(2) in December of 2020, we eliminated the presumption that we will not generally exclude Federal lands from critical habitat, and added provisions in support of considering such exclusions under 50 CFR 17.90(d)(1)(iv). See 85 FR 55398 at 55402 and 85 FR 82376 at 82382. Although the Department of Interior proposed to rescind those regulations on October 27, 2021 (86 FR 59346), they remain in effect until the PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 Service takes final action on the proposal. We provide our exclusion analysis and analysis of the risk of extinction regarding exclusion of the Harvest Land Base lands in our Consideration of Impacts Under Section 4(b)(2) of the Act. It is important to note that, in proposing this exclusion, the Service considered the very specific circumstances of the 2016 RMPs developed by BLM pursuant to its authorities and responsibilities, including under the O&C Act, as well as our commitment to consider exclusions in the settlement of litigation regarding the 2012 critical habitat rule. Therefore, the Service does not consider the exclusion of Federal lands in this final rule to set precedent for other Federal lands. Comment (36): Conservation groups commented that the Service did not support the conclusion that the Harvest Land Base lands provide a relatively low level of short-term conservation value that is not similar or equal to that of the Late-Successional Reserve and that section 7 consultation would provide no incremental conservation benefit over what the RMPs themselves provide. Additionally, commenters suggested that our statement that maintaining critical habitat in the Harvest Land Base sends a confusing message to the public is arbitrary and capricious because Congress did not intend for the Service to ignore the purpose of the Act to avoid confusion. Our response: The Harvest Land Base land use allocation is where the majority of BLM’s programmed timber harvest will occur. Harvest in this area is meted out over time and minimized in other land-use allocations in order to minimize near-term negative effects to northern spotted owl habitat in the Harvest Land Base as habitat continues to further develop late-successional characteristics in the reserve land use allocations. Our analysis conducted for the section 7 consultation for the 2016 RMPs recognized that this land-use allocation, contrary to the reserves, was not intended to be relied upon for demographic support of northern spotted owls (FWS 2016, p. 553). Based on that, we reconsidered the relative value of including them in a critical habitat designation. See also our response to Comment (19). As a result, we do not agree with the commenter’s assertion that our discussion about clarifying public understanding about the difference in conservation value provided by the Harvest Land Base versus the reserves is arbitrary and capricious. E:\FR\FM\10NOR2.SGM 10NOR2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations Comment (37): Commenters stated that the Service failed to give weight to economic impacts in our section 4(b)(2) analysis because we stated that we are not excluding areas due to economic impacts. Our response: Our July 20, 2021, proposed rule stated, ‘‘we are not now proposing to exclude any areas solely on the basis of economic impacts.’’ This statement was referring to the proposed exclusions of the BLM’s Harvest Land Base and lands transferred to be held in trust for the Tribes. However, we requested comments on any significant new information or analysis concerning economic impacts that we should consider in the balancing of the benefits of inclusion versus the benefits of exclusion in the final determination. We have considered those impacts in Consideration of Impacts Under Section 4(b)(2) of the Act. Comment (38): Commenters asserted that exclusions to critical habitat would eliminate the need for land management agencies to improve habitat. Our response: The BLM will continue to manage the Harvest Land Base according to the management direction in their RMPs. See our response to Comments 16–17 above for a discussion of how the RMPs are consistent with the recovery of the northern spotted owl and provide needed habitat management. Comment (39): A commenter requested that we not exclude specific areas of Harvest Land Base lands in critical habitat Unit 2 that are adjacent to or near a particular grove of oldgrowth trees in Late-Successional Reserve stating that any harvest in that area would damage the grove. Our response: We appreciate the commenter’s commitment to the conservation of this particular forest grove. However, as stated earlier, the Harvest Land Base will continue to be managed according to the management direction of the BLM’s RMPs even if excluded from critical habitat. We encourage the commenter to provide public comment through the BLM’s NEPA process if forest management projects are planned for this area. khammond on DSKJM1Z7X2PROD with RULES2 Summary of Changes From Proposed Rule This final rule incorporates changes to our proposed rule based on the comments and information we received, as discussed above in the Summary of Comments and Recommendations. All changes made were included accordingly in the document, tables, and maps. As a result, the final designation of critical habitat reflects VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 the following changes from the July 20, 2021, proposed rule (86 FR 38246): 1. We corrected acreage calculation errors and considered updated boundaries for Harvest Land Base lands from the BLM in the acreages of lands proposed for exclusion in Subunits NCO 4, NCO 5, ORC 1, ORC 2, ORC 3, ORC 5, ORC 6, WCS 1, WCS 2, WCS 3, WCS 4, WCS 5, WCS 6, ECS 1, ECS 2, KLW 1, KLW 2, KLW 3, KLW 4, KLW 5, KLE 1, KLE 2, KLE 3, KLE 4, KLE 5, KLE 6. As a result, the exclusions in this final rule are 359 acres (145 hectares) more than what was included in the proposed rule. 2. We corrected the coordinates or plot points from which the maps were generated. The information is available at https://www.regulations.gov under Docket No. FWS–R1–ES–2020–0050, and from the Oregon Fish and Wildlife Office website at https://www.fws.gov/ oregon. Withdrawal of the January Exclusions Rule In our March 1, 2021, final rule (86 FR 11892) extending the effective date of the January Exclusions Rule, we acknowledged that the additional areas excluded in that final rule (more than 3.2 million acres (1.3 million hectares)) and the rationale for the additional exclusions were not presented to the public for notice and comment. We noted that several members of Congress expressed concerns regarding the additional exclusions, among other concerns, which they identified in a February 2, 2021, letter to the Inspector General of the Department of the Interior seeking review of the January 15, 2021, final rule. We also noted we received at least two notices of intent to sue from interested parties regarding allegations of procedural defects, among other potential defects, with respect to our rulemaking for the final critical habitat exclusions. We received a number of comments in response to our March 1, 2021, final rule wherein we invited public comment on: (1) Any issues or concerns about whether the rulemaking process was procedurally adequate; (2) whether the Secretary’s conclusions and analyses in the January Exclusions Rule were consistent with the law, and whether the Secretary properly exercised his discretion under section 4(b)(2) of the Act in excluding the areas at issue from critical habitat; and (3) whether, and with what supporting rationales, the Service should reconsider, amend, rescind, or allow to go into effect the January Exclusions Rule. Commenters identified potential defects in the January Exclusions Rule—both PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 62635 procedural and substantive. We summarized these comments in our April 30, 2021, final rule delaying the effective date of the January Exclusions Rule until December 15, 2021 (86 FR 22876). Based on these comments and concerns, and comments we received on our July 20, 2021, proposed rule (86 FR 38246) (see Summary of Comments and Recommendations section above), we reconsidered the rationale and justification for the large exclusion of critical habitat identified in the January Exclusions Rule. As a result, the Service concludes that there was insufficient rationale and justification to support the exclusion of approximately 3,472,064 acres (1,405,094 hectares) from critical habitat for the northern spotted owl, an exclusion that removed an additional approximately 3.2 million acres (1.3 million hectares) from designation as compared with the August 2020 proposed rule. Our reexamination of the January Exclusions Rule identified defects and shortcomings, which we summarize in the following paragraphs. We received additional comments addressing these asserted defects and shortcomings in response to our July 20, 2021, proposed rule, and addressed those above, see responses to Comments A–G. We provided an insufficient opportunity for the public to review and comment on the changes made from the proposed to final exclusions in the January Exclusions Rule, which would have necessitated additional notice and an opportunity to comment. The January Exclusions Rule, had it gone into effect, would have excluded substantially more acres (36 percent of designated critical habitat versus the 2 percent proposed in the August 11, 2020, proposed revised rule). The January Exclusions Rule also excluded critical habitat in a much broader geographic area than proposed, including adding exclusions in Washington and California when only exclusions in Oregon had been included in the proposed rule. The January Exclusions Rule also included new rationales for the exclusions that were not identified in the August 11, 2020, proposed revised critical habitat rule (85 FR 48487). These included generalized assumptions about the economic impact of both the listing of the northern spotted owl and the subsequent designation of areas as critical habitat; the stability of local economies and protection of the local custom and culture of counties; the presumption that exclusions would increase timber harvest and result in longer cycles between harvest, that timber harvest E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62636 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations designs would benefit the northern spotted owl, and that the increased harvest would reduce the risk of wildfire; and that northern spotted owls may use areas that have been harvested if some forest structure was retained. The public did not have an opportunity to review or comment on these new rationales. Further, the public did not have an opportunity to comment on the expanded critical habitat exclusions made in the January Exclusions Rule in light of the information included in the December 15, 2020, finding, with supporting species report (85 FR 81144, FWS 2020), that the northern spotted owl warrants reclassification to endangered status that was published just 3 weeks before the January Exclusions Rule. Additionally, the January Exclusions Rule excluded all of the O&C lands managed by BLM and USFS including those allocated to reserves. In our January Exclusions Rule, we failed to reconcile our prior finding that areas designated on O&C lands were essential to the conservation of the subspecies. The Service previously concluded in our 2012 critical habitat rule (77 FR 71876) that the O&C lands and portions of other lands managed as ‘‘matrix’’ lands for timber production significantly contribute to the conservation of the northern spotted owl, that recovery of the owl cannot be attained without the O&C lands, and that our analysis showed that not including some of these O&C lands in the critical habitat network resulted in a significant increase in the risk of extinction. In response to our March 1, 2021, rule (86 FR 11892) extending the effective date of the January Exclusions Rule, some commenters stated that we provided sufficient notice and an opportunity for the public to be aware of the potential for the expansion of the exclusions from the proposed to final rules. Industry groups asserted that the August 11, 2020, proposed revised critical habitat rule (85 FR 48487) made clear that additional exclusions were being considered, in part, based on our request for information on additional exclusions we should consider (AFRC 2021, pp. 5–;6). In contrast, many other commenters objected to a lack of notice and opportunity to comment on the significant changes. These included comments from the newly impacted State fish and wildlife agencies (Washington Department of Fish and Wildlife 2021, California Department of Fish and Wildlife 2021). In addition, the exclusion of all ‘‘matrix’’ lands managed by the USFS amounted to over 2 million acres in areas of the National Forests in VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 three States, with limited analysis of the effects of such exclusions on the conservation of the northern spotted owl and in hindsight, minimal supporting rationale. If we had decided to implement the January Exclusions Rule, in order to ensure a robust opportunity for public input on the changes, we would have erred on the side of transparency and would have opened a public comment period on that rule and considered that feedback before deciding to implement the rule. Based on our review, we proposed instead to withdraw the January Exclusions Rule, prior to its implementation, due to a number of concerns that the exclusions would be inconsistent with the conservation purposes of the Act, which we summarize below and affirm in this final rule. First, the large additional exclusions made in the January Exclusions Rule were premised on inaccurate assumptions about the status of the owl and its habitat needs. The large additional exclusions were based in part on an assumption that barred owl control is the primary requirement for northern spotted owl recovery, when in fact the best scientific data indicate that protecting late-successional habitat also remains critical for the conservation of the spotted owl as well (FWS 2020, p. 83; Franklin et al. 2021, p. 18). Although they require different management approaches, both actions are fundamental to the spotted owl’s recovery. In addition, in concluding that the exclusions of the January Exclusions Rule will not result in the extinction of the northern spotted owl (a finding necessary for any section 4(b)(2) exclusions), the January Exclusions Rule relied, in part, upon a large-scale barred owl removal program that is not yet in place. The Service is in the process of developing a barred owl management strategy, but the specific features of any such program and where they may be applied are yet to be determined, and the Service will engage public review and comment before deciding. As discussed above, our experimental removal of barred owls showed a strong, positive effect of that removal on the survival of spotted owls, but considerable economic, logistical, social, and regulatory issues remain before large-scale non-experimental removal of barred owls could occur. Since completion of the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011), the Service has worked closely with Federal and State land managers to minimize or avoid impacts to extant spotted owls due to PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 timber harvest, while at the same time carrying out the barred owl removal experiment (Wiens et al. 2021) and initiating development of a barred owl management program. This approach has allowed for timber harvest to proceed under State and Federal land management plans (e.g., BLM’s 2016 Resource Management Plans in western Oregon (BLM RMPs)) while minimizing impacts to long-term spotted owl recovery prospects. Potential timber harvest in the areas that would be excluded from critical habitat in the January Exclusions Rule would far exceed the level of impact to spotted owls that the Service anticipated in those land management plans. Thus, it is premature to rely solely on an anticipated barred owl management program to offset the potential loss of millions of acres of spotted owl critical habitat over time or to conclude that the loss would not result in the extinction of the subspecies. Second, the January Exclusions Rule undermined the biological redundancy of the critical habitat network by excluding large areas of critical habitat across the range of the northern spotted owl. The 2012 critical habitat designation (77 FR 71876) increased in size compared to previous designations, in part to account for the likelihood of habitat loss due to more frequent wildfires. This increase provided for biological redundancy in northern spotted owl populations and habitat by maintaining sufficient habitat on a landscape level in areas prone to frequent natural disturbances, such as the drier, fire-prone regions of its range (Noss et al. 2006, p. 484; Thomas et al. 2006, p. 285; Kennedy and Wimberly 2009, p. 565). We will continue to monitor habitat impacts due to wildfire and other disturbances and evaluate the integrity of the spotted owl’s critical habitat network. As stated earlier, in the development of habitat conservation networks generally, the intent of spatial redundancy is to increase the likelihood that the network and populations can sustain habitat losses by inclusion of multiple populations unlikely to be affected by a single disturbance event. This redundancy is essential to the conservation of the northern spotted owl because disturbance events such as fire can potentially affect large areas of habitat with near-term negative consequences for northern spotted owls. This redundancy can also allow for a relatively small amount of humancaused disturbance such as timber harvest without jeopardizing the subspecies or adversely modifying its critical habitat, provided that E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations disturbance is carefully planned and evaluated within the appropriate temporal and spatial context such as projects consistent with BLM’s 2016 RMPs. The evaluation process used by the Service in our 2012 final critical habitat rule (77 FR 71876) addresses spatial redundancy at two scales: By (1) making critical habitat subunits large enough to support multiple groups of owl sites; and (2) distributing multiple critical habitat subunits within a single geographic region. This approach was particularly the case in the fire-prone Klamath and Eastern Cascades portions of the range. This increased habitat redundancy also provides for the conservation of northern spotted owls as they face growing competition from barred owls. The January Exclusions Rule also failed to consider the needs for connectivity between critical habitat units, particularly in southern Oregon where dispersal habitat is already limited in areas that were excluded in the January Exclusions Rule. Successful dispersal of northern spotted owls is essential to maintaining genetic and demographic connections among populations across the range of the subspecies (FWS 2020, p. 24). As stated previously, some critical habitat subunits that were designated to provide this support were reduced in the January Exclusions Rule by up to 90 percent. If these exclusions were implemented and management actions or plans were amended to allow for increased harvest at the scale of these exclusions, these subunits would no longer provide the demographic support for which they were designated. Again, as described above, the Service anticipates and plans for some amount of human-caused and natural disturbance in these critical habitat units, meted out over space and time in a manner that supports recovery over the long term. The January Exclusions Rule could facilitate timber harvest that could greatly accelerate those impacts well beyond what was anticipated in the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and various land management plans. The January Exclusions Rule also overstates the conservation value of areas not designated as critical habitat for the owl on other Federal lands, such as national parks and designated wilderness areas. These Federal lands do contain habitat for the northern spotted owl and are generally protected from proposed Federal activities that would result in significant removal of that habitat, and so they do provide areas that can serve as refugia for northern spotted owls. These protected VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 areas, however, are relatively small and widely dispersed across the range of the owl. As we noted above, these areas are also typically high-elevation lands, and it is unlikely that the owl populations would be viable if their habitat were restricted to these areas (55 FR 26114, June 26, 1990; p. 26177). They are disjunct from one another and cannot be relied on to sustain the subspecies unless they are part of and connected to a wider reserve network as provided by the 2012 critical habitat designation (77 FR 71876, December 4, 2012). As discussed above, that network would have been greatly diminished and fragmented by the January Exclusions Rule if implemented. See also our response to Comment (Cii). Third, under section 4(b)(2) of the Act, the Secretary cannot exclude areas from critical habitat if he or she finds, ‘‘based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.’’ The January Exclusions Rule relied upon a determination that the exclusions will not result in the extinction of the northern spotted owl based in part on a faulty interpretation of the science relevant to spotted owl conservation. Specifically, the then-Director in her memo to the Secretary of January 7, 2021 (FWS 2021a) overestimated the probability that the northern spotted owl population would persist into the foreseeable future if a large portion of critical habitat was removed and subsequent timber harvest were to occur on those lands. The then-Director excluded 3,472,064 acres (1,405,094 hectares) from the total of 9,577,342 acres (3,875,812 hectares) designated as critical habitat in 2012, or 36 percent of the total. Most of this exclusion is concentrated in Oregon and, due to its geographic location and habitat quality, it represents a significant portion of the subspecies’ most important remaining habitat. The O&C lands, for example, encompass 37 percent of the lands that were covered under the NWFP in Oregon and provide important habitat for reproduction, connectivity, and survival in the Coast Range and portions of the Klamath Basin and provide connectivity through the Coast Range and between the Coast Range and western Cascades (Thomas et al. 1990, p. 382, BLM 2016c, p. 17). The best scientific information indicates that the northern spotted owl population is in a precipitous decline, and the Service recently concluded that the subspecies warranted reclassification to endangered status under the Act (85 FR 81144, December PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 62637 15, 2020). The subspecies is essentially extirpated from British Columbia, rapidly declining to near extirpation in Washington and parts of Oregon, and is in the earlier stages of similar declines in the rest of its range. Northern spotted owls are declining at a rate of 5.3 percent across their range, and populations in Oregon and Washington have declined by over 50 percent, with some declining by more than 75 percent, since 1995 (Franklin et al. 2021). As the statutory definition of ‘‘endangered’’ states, the subspecies is in ‘‘danger of extinction throughout all or a significant portion of its range.’’ 16 U.S.C. 1532(5)(A)(6). Significant changes to habitat conservation of the type that were assumed by the January Exclusions Rule would greatly exacerbate this decline by working synergistically with the impacts from barred owl. The Director’s memo failed to recognize that (1) spotted owl populations are declining precipitously due to a combination of historical habitat loss and more recent competition with the barred owl; and (2) the only way to arrest this decline and have a high probability of preventing extinction (in any timeframe) is to both manage the barred owl threat and conserve adequate amounts of highquality habitat distributed across the range in a pattern that provides acceptable levels of connectivity as well as protection from stochastic events. This conclusion is supported by the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011), as well as more recent peer-reviewed and published scientific research (Weins et al. 2021, Franklin et al. 2021). Franklin et al. (2021, p. 18) emphasizes the importance of maintaining northern spotted owl habitat, regardless of occupancy, in light of competition from barred owls to provide areas for recolonization and connectivity for dispersing northern spotted owls. The 2012 critical habitat designation—including the relatively minor exclusions (approximately two percent) proposed here on BLM land in the Harvest Land Base—preserves the habitat conservation portion of this goal. The much larger exclusion of 36 percent proposed in the January Exclusions Rule thwarts this goal, given its large size and its disproportionate concentration in high-quality habitat in Oregon. The Service finds that the January Exclusions Rule would have resulted in the northern spotted owl’s extinction even though spotted owls are long-lived and are widely dispersed over a large geographic range. Individual spotted owls can live up to 20 years, and they E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62638 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations are widely distributed at low densities across three States. Extinction due to removal of large areas of critical habitat would not be immediate, but it is still a reasonable scientific certainty. For example, if the bulk of the northern spotted owl’s habitat were to be removed on Federal lands except for the portion that exists in national parks, one could reasonably conclude the subspecies would not go extinct immediately, say within 1 to 5 years. Individual northern spotted owls remaining in those parks scattered across the range might persist for one or a few generations (that is, greater than 20 years). However, the subspecies is still likely to go extinct over a longer time period in this scenario. Basic conservation biology principles and metapopulation dynamics predict that those remnant and now isolated northern spotted owl subpopulations would likely die off without regular genetic and demographic interaction with northern spotted owls from neighboring subpopulations. Forces working against the persistence of these isolated subpopulations include genetic inbreeding and catastrophic stochastic events such as wildfire. Therefore, it is a reasonable scientific conclusion that the subspecies would go extinct under such conditions, but this extinction process will occur over decades as these forces manifest themselves and as longlived individuals die off. The extinction would not occur immediately, as it might with rarer and more short-lived species, but eventual extinction remains a scientifically predictable outcome with a high likelihood of certainty. Yet by the time it becomes apparent that extinction were imminent, it would likely be too late to provide sufficient protected habitat. This was one of the issues that led to the listing of the northern spotted owl in the first place— the loss of old-growth habitat at such a rapid pace that it was predicted to disappear from federally managed forested habitats within several decades (55 FR 26114, June 26, 1990; p. 26175). The Act requires us to use the best available science when applying the discretion afforded in section 4(b)(2), and this includes making a reasonable and defensible scientific interpretation of extinction risk that is relevant to the species under consideration. In this final rule, we correct the previous misapplication of section 4(b)(2) extinction risk analysis, which would not meet the Act’s purpose of conserving listed species and the ecosystems on which they depend. In sum, substantial issues were raised that the January Exclusions Rule would VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 preclude the conservation of the northern spotted owl, a subspecies we recently found warrants reclassifying as an endangered species in danger of extinction throughout its range (85 FR 81144, December 15, 2020). Upon review and reconsideration as described above, the Service withdraws the January Exclusions Rule and instead excludes 204,294 acres (82,675 hectares) within 15 counties in Oregon as explained further below. This relatively small exclusion represents only 2 percent of the total designated critical habitat, in contrast to the 36 percent proposed in the January Exclusions Rule, and it is consistent with the longterm recovery and conservation goals of the northern spotted owl. Critical Habitat Background 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 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). Our regulation at 50 CFR 424.02 also now defines the term ‘‘habitat’’ for the purposes of designating critical habitat only, as the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species. This new definition of ‘‘habitat’’ applies by its terms to new critical habitat designations only (see 85 FR 81411, December 16, 2020), and since this final rule excludes areas from critical habitat (rather than designating them) the new regulation does not apply to this rule. Nonetheless, given the PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 number of comments received asserting that some areas we designated as critical habitat in 2012 are not ‘‘habitat’’ and seeking exclusions from the designation pursuant to section 4(b)(2) on that basis, we take this opportunity to review the existing critical habitat designation for conformance with the new regulatory definition. In summary, as explained further below, all the areas within the designation of critical habitat for the northern spotted owl are within the geographical area occupied by the species at the time of listing and encompass forested areas with specific characteristics which are the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of the species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot 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. Under our implementing regulations, this means the Federal action cannot directly or indirectly appreciably diminish the value of critical habitat as a whole for the conservation of the listed species, see 50 CFR 402.02, definition of ‘‘destruction or adverse modification.’’ 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. E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations 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 is not required to abandon the proposed activity, nor to restore or recover the species; instead, the Federal action agency must implement ‘‘reasonable and prudent alternatives’’ to avoid destruction or adverse modification of critical habitat, or obtain an exemption from the Act’s prohibitions under the relevant implementing regulations (see 50 CFR part 451). 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 and 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 areas occupied by the species at the time of listing, we focus on the features that are essential to support the lifehistory 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 may 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 VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 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. In our December 4, 2012, final rule (77 FR 71876), we determined that all units and subunits met the Act’s definition of being within the geographical area occupied by the species at the time of listing. Our determination was based on the northern spotted owl’s wide-ranging use of the forested landscape, and the distribution of known owl sites at the time of listing. In addition, we noted that parts of most units and subunits contain a forested mosaic that includes younger forests that may not have been occupied at the time of listing. Even though we had reasonable certainty based on modeling that such areas were occupied at the time of listing, because we did not have complete survey data, we also evaluated these areas under the ‘‘unoccupied’’ standard, and found they were essential to the conservation of the species (77 FR 71876; p. 71971). Because the forest habitat is dynamic, we also noted the value of the younger forests in being the source of continued growth to develop more fully into the high-quality habitat preferred by owls for nesting, roosting, and foraging (77 FR 71876; p. 71971). These ‘‘younger forest’’ stands that are part of the forest mosaic within the critical habitat units may not contain all of the high-quality characteristics of the habitat preferred by owls for nesting and roosting, but they contain the resources and conditions necessary to support one or more life processes and are, thus, ‘‘habitat’’ for the northern spotted owl. Our December 4, 2012, final rule (77 FR 71876) includes four PBFs (formerly referred to as primary constituent elements, or PCEs) specific to the northern spotted owl. In summary, PBF (1) is forest types that may be in early, mid-, or late-seral stages and that support the northern spotted owl across its geographical range; PBF (2) is nesting and roosting habitat; PBF (3) is foraging habitat; and PBF (4) is dispersal habitat (see 77 FR 71876, December 4, 2012, pp. 72051–72052, for a full description of the PBFs). Not all of the designated critical habitat contains all of the PBFs, because not all life-history functions require all of the PBFs. Some subunits contain all PBFs and support multiple life processes, while some subunits may contain only PBFs necessary to support the species’ particular use of those subunits as habitat. However, all of the PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 62639 areas designated as critical habitat support at least PBF (1), in conjunction with at least one other PBF. Thus, PBF (1) must always occur in concert with at least one additional PBF (PBFs 2, 3, or 4) (77 FR 71876, December 4, 2012, p. 71908). The younger forest areas are habitat for the owl and were included in the designation to provide, at a minimum, connectivity (physical and biological feature (PBF) (4)-dispersal habitat) between occupied areas, room for population growth, and the ability to provide sufficient habitat on the landscape for the owl in the face of natural disturbance regimes (e.g., fire). In some portions of the owl’s range, younger forests can provide for additional life processes, including nesting if they contain some structural features of older forests, as well as foraging depending on prey availability (77 FR 71876; p. 71905). Some continue to assert that a few sentences in the 2012 critical habitat rule, or in memoranda developed in support of the economic analysis are proof that the Service inappropriately designated ‘‘non-habitat’’ in the 2012 rule. We acknowledge that we may have been imprecise in our language in places in the 2012 critical habitat preamble, and/or in other places in the large rulemaking record, but as we explain and reaffirm here, the designated critical habitat for the northern spotted owl as described in the regulation itself at 50 CFR 17.95(b) (the entry for ‘‘Northern Spotted Owl (Strix occidentalis caurina)’’) is all habitat for the northern spotted owl. In particular, the memoranda developed for the FEA was never intended to address the scientific question of whether particular areas function as current habitat for the northern spotted owl. Rather, as explained more fully below, for purposes of estimating the incremental economic impact of the designation over those caused by the listing of the species as threatened, the FEA identified areas of younger forest in the proposed designation that might not be currently occupied by the northern spotted owl. In such areas, Federal land managers might determine that proposed projects may result in ‘‘no effect’’ on northern spotted owls and are thereby the projects would not be subject to an ESA Section 7 consultation premised on federal agencies’ obligation to avoid jeopardy to the species. The economicimpact assumption was that projects in those areas therefore might only be subject to the additional regulatory cost of an ESA Section 7 consultation if designated as critical habitat. This was a simplifying and conservative E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62640 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations assumption from the standpoint of the economic analysis, but is interpreted by some as meaning that the Service determined that these areas of younger forest are not spotted owl habitat. That interpretation is incorrect, for all of the reasons explained above and below. While all of the critical habitat units designated consist of habitat for the owl, some areas within these units and subunits will at times not be used by individual northern spotted owls due to a variety of reasons, whether they may be human activity (e.g., timber harvest), catastrophic wildfire, displacement by competition with the nonnative barred owl, or due to natural and localized population fluctuations. This does not mean, however, that the areas are no longer designated critical habitat. Individual owls live for over twenty years, and during these two decades an individual owl may experience multiple disturbance events (e.g., a fire or a windstorm) within its large home range that renders portions of this range temporarily reduced in habitat quality. A catastrophically burned area of critical habitat, for example, may affect multiple owl home ranges and create diminished habitat conditions (e.g., reduced cover or nesting structure) that might not be used by the owl for all life functions in the near term (Jones et al. 2020, entire). But even with reduced usage or temporary avoidance many burned areas still provide some habitat value such as foraging or dispersal, and this value tends to rebound as the forest conditions naturally begin recovering soon after the fire. We take this ecological process into account in reviewing federal actions during the section 7 consultation process because even severely burned forest habitat often retains patchy habitat clumps within the burned area, and the burned areas regrow over time. Although there are multiple ecological factors that influence how quickly forests recover after a fire, such as whether the landscape is in the drier or moister portions of the range, this recovery usually begins immediately after the fire. The quality of the habitat—and its relative value to spotted owl conservation—increases over time as forest succession occurs. In summary, ecosystems are not static, and a critical habitat designation must incorporate this dynamism of the owl’s habitat into its design if the designation is to provide for the conservation of the species. When determining critical habitat boundaries for the December 4, 2012, final rule, we made every effort to avoid including areas that lack physical or biological features for the northern VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 spotted owl. Due to the limitations of mapping at fine scales, we were often not able to segregate these areas from areas shown as critical habitat on maps suitable in scale for publication within the Code of Federal Regulations. The following types of areas are not critical habitat because they are not and cannot support northern spotted owl habitat, and are not included in the 2012 designation: Meadows and grasslands, oak and aspen (Populus spp.) woodlands, and manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas), and the land on which they are located. Thus, we included regulatory text in the December 4, 2012, final rule clarifying that these areas were not included in the designation even if within the mapped boundaries of critical habitat (77 FR 71876; p. 72052). In our experience, Federal agencies undertaking section 7 consultation with us and evaluating impacts to designated critical habitat do not have difficulty discerning the nonhabitat that we narratively excluded, nor do they have difficulty discerning the physical and biological characteristics that qualify stands as critical habitat. In any case, if anyone seeking to apply the critical habitat rule to any particular areas has questions about how to apply the rule, the Service is available to provide technical assistance. 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 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 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 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 subspecies. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. The exclusion of 204,294 acres (82,675 hectares) within 15 counties in Oregon as described in this document does not change the December 4, 2012, final rule currently in effect with two exceptions: The only sections of the rule that published at 77 FR 71876 (December 4, 2012) that would change with this revision are table 8 in the Exclusions discussion (pp. 71948– 71949), the subunit maps related to the exclusions (pp. 72057–72058, 72062, 72065–72067), and the index map of Oregon (p. 72054). The regulations concerning critical habitat have been revised and updated since 2012 (81 FR 7414, February 11, 2016; 84 FR 45020, August 27, 2019; 85 FR 81411, December 16, 2020; 85 FR 82376, December 18, 2020). Our December 4, E:\FR\FM\10NOR2.SGM 10NOR2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations 2012, designation of critical habitat for the northern spotted owl and the revisions in this rule are in accordance with the requirements of the revised critical habitat regulations, with the exception of the use of the term ‘‘primary constituent element’’ (PCE) in the December 4, 2012, final rule; here, we use the term ‘‘physical or biological feature’’ (PBF), as noted above, in accordance with the updated critical habitat regulations. The primary constituent elements (PCEs) are, however, the physical and biological features (PBFs) as described in the revised regulations: They are essential to the conservation of the subspecies, and they may require special management considerations or protection. Final Revised Critical Habitat Designation Consistent with the standards of the Act and our regulations, 9,373,676 acres (3,793,389 hectares) are now identified in 11 units and 60 subunits as meeting the definition of critical habitat for the northern spotted owl. The 11 units are: (1) North Coast Olympics, (2) Oregon Coast Ranges, (3) Redwood Coast, (4) West Cascades North, (5) West Cascades Central, (6) West Cascades South, (7) East Cascades North, (8) East Cascades South, (9) Klamath West, (10) Klamath East, and (11) Interior California Coast Ranges. Land ownership of the designated critical habitat includes 62641 Federal, State, and local government lands. No Indian or private lands were included in the critical habitat designation in 2012; lands formerly managed by the BLM that were designated as critical habitat subsequently were transferred into trust for two Tribes, which meant that subsequently these Indian lands were within the critical habitat designation; we have excluded those lands with this final rule. The approximate area of each subunit and excluded area within critical habitat subunits is shown in table 1. Only the units and subunits that we have revised in this rule are described below; see the 2012 critical habitat rule for descriptions of the units and subunits that remain unchanged. TABLE 1—AREAS EXCLUDED, BY CRITICAL HABITAT UNIT Specific area Unit 1 ..................................... 1 ..................................... 2 ..................................... 2 ..................................... 2 ..................................... 2 ..................................... 2 ..................................... 6 ..................................... 6 ..................................... 6 ..................................... 6 ..................................... 6 ..................................... 6 ..................................... 8 ..................................... 8 ..................................... 9 ..................................... 9 ..................................... 9 ..................................... 9 ..................................... 9 ..................................... 10 ................................... 10 ................................... 10 ................................... 10 ................................... 10 ................................... 10 ................................... khammond on DSKJM1Z7X2PROD with RULES2 1 Acreages Areas meeting the definition of critical habitat, in acres (hectares) 1 NCO 4 NCO 5 ORC 1 ORC 2 ORC 3 ORC 5 ORC 6 WCS 1 WCS 2 WCS 3 WCS 4 WCS 5 WCS 6 ECS 1 ECS 2 KLW 1 KLW 2 KLW 3 KLW 4 KLW 5 KLE 1 KLE 2 KLE 3 KLE 4 KLE 5 KLE 6 124,124 (50,231) 198,320 (80,258) 110,580 (44,750) 261,220 (105,712) 204,036 (82,571) 176,276 (71,337) 81,856 (33,126) 92,528 (37,445) 151,319 (61,237) 318,161 (128,756) 378,744 (153,273) 356,447 (144,249) 99,436 (40,241) 125,473 (50,777) 66,039 (26,725) 147,154 (59,551) 149,857 (60,645) 146,005 (59,086) 158,710 (64,228) 31,062 (12,571) 242,713 (98,223) 100,374 (40,620) 112,709 (45,612) 255,888 (103,555) 38,222 (15,468) 167,715 (67,872) 1,838 (744) 8,482 (3,433) 1,279 (518) 7,900 (3,197) 4,907 (1,986) 15,070 (6,099) 4,188 (1,695) 880 (356) 1,087 (440) 1,922 (778) 6 (2) 2 (1) 18,120 (7,333) 16,458 (6,660) 2,379 (963) 15,316 (6,198) 19 (8) 1,685 (682) 785 (318) <1 (<1) 30 (12) 29,998 (12,140) 48,398 (19,586) 1 (1) 12,166 (4,923) 11,376 (4,604) Rationale for exclusion BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM BLM Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Harvest Land Land Land Land Land Land Land Land Land Land Land Land Land Land Land Land Land Land Land Land Land Land Land Land Land Land Base. Base. Base. Base/Indian Base/Indian Base. Base/Indian Base. Base. Base. Base. Base. Base. Base. Base. Base/Indian Base. Base. Base. Base. Base/Indian Base/Indian Base. Base. Base. Base. Lands. Lands. Lands. Lands. Lands. Lands. differ slightly from those in 77 FR 71876 due to updated GIS analysis. This revision excludes from critical habitat areas identified by BLM as allocated to the Harvest Land Base land use in the 2016 RMPs. Under the BLM RMPs, some land-use allocations, such as Riparian Reserve, require identification of features on the ground. The BLM typically determines the location of such features as part of implementing actions and subsequently corrects land-use allocation boundaries consistent with the direction in the RMP. Therefore, some areas within the 2012 critical habitat designation that are VerDate Sep<11>2014 Areas excluded, in acres (hectares) 16:42 Nov 09, 2021 Jkt 256001 currently mapped as Riparian Reserve in the RMPs are corrected on sitespecific review to be mapped as Harvest Land Base. These corrections are expected to be minor in scope and reflect the most accurate information. As such, we assume such corrected acreage in the Harvest Land Base would be excluded by this final rule. The LateSuccessional Reserve, where the majority of critical habitat overlaps BLM-managed lands, is not subject to these boundary adjustments. PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 We used GIS data provided by BLM that identified land use allocations under their 2016 revised RMPs and lands transferred to be held in trust for Tribes under the Western Oregon Tribal Fairness Act to identify areas for exclusion in this final rule (BLM 2021b). Consideration of Impacts 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 E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62642 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations 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 he or she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless the Secretary 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 finalized a new regulation regarding the application of section 4(b)(2) exclusion analyses on December 18, 2020 (85 FR 82376). Although the new regulation superseded our 2016 Policy and prior regulation regarding exclusion analyses, the new regulation ‘‘primarily adopts and deepens the provisions contained in the previous policy and rule’’ (85 FR 82376). By its terms, that new regulation applies to ‘‘critical habitat designations or revisions that FWS proposes after the effective date of this rulemaking action.’’ Id. at 82376. As the revision to the 2012 critical habitat designation we finalize here was initially proposed in our proposed rule of August 11, 2020 (85 FR 48487), we could reasonably conclude that the new regulation does not apply to the reproposal we made of the same in July of this year. To avoid any uncertainty, however, we will consider the exclusions pursuant to the new regulation. Thus, we considered the best information available regarding economic, national security, and other relevant impacts. ‘‘Economic impacts’’ may include, but are not limited to, the economy of a particular area, productivity, jobs, and any opportunity costs arising from the critical habitat designation (such as those anticipated from reasonable and prudent alternatives that may be identified through a section 7 consultation) as well as possible benefits and transfers (such as outdoor recreation and ecosystem services). ‘‘Other relevant impacts’’ may include, but are not limited to, impacts to Tribes, States, local governments, public health and safety, community interests, the environment (such as increased risk of wildfire or pest and invasive species management), Federal lands, and conservation plans, agreements, or partnerships. We describe below the process that we VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 undertook for taking into consideration each category of impacts and our analyses of the relevant impacts. Process for Exercising Discretion To Conduct an Exclusion Analysis The Secretary has discretion whether to conduct an exclusion analysis under section 4(b)(2) in accordance with our regulations at 50 CFR 17.90(c). The Secretary will conduct an exclusion analysis when the proponent of excluding a particular area (including but not limited to permittees, lessees, or others with a permit, lease, or contract on federally managed lands) has presented credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area. The Secretary may also otherwise decide to exercise discretion to evaluate any particular area for possible exclusion. We received requests to exclude many areas within the critical habitat designation for the northern spotted owl. In determining whether we would conduct an exclusion analysis, we first evaluated whether the proponent of those exclusions presented credible information of a meaningful impact supporting benefits of excluding these areas. We found several requests did not meet this standard as described below (similar requests have been grouped into categories). We received requests from several commenters to exclude younger forests; subunits with greater than 50 percent younger forests; low-quality habitat; stands under 80 years old; habitatcapable lands; areas for dispersal or connectivity; areas occupied by barred owls; parcels of less than 3,000 acres (1,214 hectares); smaller, fragmented parcels; previously burned LateSuccessional Reserve; areas that have burned at high severity; and all ‘‘uninhabited’’ lands. All of these requests for exclusion rely on assertions that the areas either do not meet the definition of habitat for the northern spotted owl and must, therefore, not be designated as critical habitat, or that these areas should not be designated because they are currently ‘‘unoccupied’’ by owls. We did not conduct an exclusion analysis for these areas because the requests were based on the assertion that these areas are not habitat or that they cannot be essential to the recovery of the northern spotted owl because they are not currently occupied. These requests are not subject to an exclusion analysis because they are premised on incorrect conclusions regarding whether areas are ‘‘habitat’’ for the northern spotted owl in the first PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 instance, misapprehend the concept of ‘‘occupied at the time of listing’’ which is the basis for critical habitat designation, or simply seek to re-argue elements of the critical habitat designation in 2012 that were determined in that rulemaking. See also our responses to Comments (26–28). Additionally, the Secretary did not otherwise decide to exercise discretion to evaluate these particular areas for possible exclusion. We note, however, there is some overlap with some of these requests for exclusions and the areas within the O&C lands and USFS matrix lands for which we did conduct an exclusion analysis, below. Our decision to conduct an exclusion analysis on the O&C lands and USFS matrix lands was not based on whether or not they met the definition of habitat, but rather on credible information that a meaningful impact may support benefits of exclusion of those lands. We received comments seeking exclusions of areas of moderate to high fire risk; fire-prone forests or specific subunits in fire-prone areas; and areas of dry forest in California and the eastern Washington Cascades; and stating that all California lands because the critical habitat designation is asserted to conflict with active forest management designed to reduce the risk of wildfire and lead to subsequent fire suppression costs and reduced revenue. We did not conduct an exclusion analysis for these areas because the requests are based on the assertion that the critical habitat designation impedes active forest management and the asserted costs and lost revenue are based on this misunderstanding. We find this assertion to be unfounded as described in our responses to Comments (Civ) and (27a) and explain how the critical habitat rule encourages and does not conflict with active forest management to reduce the risk of high-severity wildfire. Thus, we find that the commenters have not provided credible information that a meaningful impact may support benefits of excluding these areas. Additionally, the Secretary did not otherwise decide to exercise discretion to evaluate these particular areas for possible exclusion. We received requests to exclude adaptive management areas and experimental forests based on the assertion that critical habitat places additional constraints on actions in these areas that will limit the ability to conduct scientifically credible work; that they are not suitable habitat due to the age-class of certain stands or as evidenced by a lack of current occupancy; that their designation has economic impacts; and an assertion that E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations the critical habitat designation conflicts with active forest management designed to reduce the risk of wildfire. We find that the commenter’s assertion about constraints due to critical habitat are not credible and find there is enough flexibility built into the recommendations in the critical habitat rule that experimental forests and Adaptive Management Areas can continue to conduct their valuable work on their landscapes. We did not conduct an exclusion analysis for these particular areas because the requests were based on the assertion that these areas are not habitat and that the critical habitat designation impedes active forest management. We do not agree with these assertions as described in our responses to Comment (31). Additionally, commenters did not provide information on economic impacts to these specific areas, and they requested exclusion of these areas in combination with USFS matrix lands but only provided economic impacts related to USFS matrix lands. Therefore, we find the commenters did not provide credible information that a meaningful impact may support benefits of excluding these areas. We have conducted an exclusion analysis of the USFS matrix lands below. We received requests from Douglas County to exclude several areas, including all USFS and BLM lands; private and State lands; county lands in Oregon; all lands in Douglas County; and BLM lands that are not O&C lands. They asserted various reasons for these requests, including: Reducing government processes (‘‘red tape’’), a need to provide management flexibility and ease of administration, economic impacts, and other reasons included in the requests described above. We did not conduct an exclusion analysis for these areas based on government process requirements or ease of administration because the commenters did not provide information pertaining to these areas that there are meaningful impacts related to these issues that may support benefits of excluding these areas. We do not agree with the assertion that the critical habitat designation conflicts with a need to provide management flexibility as described in our responses to Comments (B–C), (6), (12), (25a), and (27a); thus, we did not consider this to be credible information that these are meaningful impacts. We also did not conduct an exclusion analysis for these areas based on economic impacts because we found that Douglas County did not provide economic information for the exclusion requests listed here. Douglas County VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 also requested exclusion of all O&C lands and USFS matrix lands, and provided information on economic impacts related to unoccupied matrix lands, which we have evaluated in our exclusion analysis for those lands below. We received requests from Lewis and Skamania Counties, Washington, to exclude the White Pass Ski Area. While the counties provided information pertaining to the economic benefits the ski area provides to the local community, they did not provide information regarding the impact of the critical habitat designation beyond the need to conduct section 7 analyses for critical habitat. No information or evidence was presented to indicate that the critical habitat designation does or will impair the ski area’s current operations, nor that it has or will unreasonably restrict any future expansion of the ski area given the small footprint and potential impacts within critical habitat. And, as noted in our response to Comment (29), developed portions of ski areas are functionally excluded from critical habitat although the mapping may overlap some of the ski area footprint. Thus, we did not conduct an exclusion analysis for the ski area because the commenters did not provide credible information that there are meaningful impacts related to critical habitat, beyond the minor administrative or transactional costs to complete section 7 consultation that may support benefits of excluding these areas. The Secretary conducted exclusion analyses when the proponent of excluding a particular area (including but not limited to permittees, lessees, or others with a permit, lease, or contract on federally managed lands) presented credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area. These include requests for the exclusion of Indian lands, BLM Harvest Land Base lands, O&C lands and USFS matrix lands, and Douglas County lands. These exclusion analyses are below in Exclusions Based on Other Relevant Impacts. Process for Consideration of Impacts When identifying the benefits of inclusion of an area as designated critical habitat, we primarily consider the additional regulatory benefits that that area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus (that is, an activity or program authorized, funded, or carried out in whole or in part by a Federal PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 62643 agency). We may also consider the educational benefits of mapping essential habitat for recovery of the listed species, benefits that may result from a designation due to State or Federal laws that may apply to critical habitat, and other benefits such as outdoor recreation or ecosystem services. In situations where economic benefits are relevant, we generally describe two broad categories of benefits of inclusion of particular areas of critical habitat: (1) Those associated with the primary goal of species conservation and recovery, and (2) those that derive from the habitat conservation measures to achieve this primary goal. When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in economic benefits through creating or preventing the elimination of jobs, avoiding project delays or impediments that affect community interests, increased public health and safety, reduction of environmental risks (such as increased risk of wildfire or pest and invasive species management), and maintenance or fostering of partnerships that provide existing conservation benefits or may result in future conservation actions. The Secretary can consider the existence of conservation agreements and other land management plans with Federal, State, private, and Tribal entities when making decisions under section 4(b)(2) of the Act. The Secretary may also consider relationships with landowners, voluntary partnerships, and conservation plans, and weigh the implementation and effectiveness of these against that of designation to determine which provides the greatest conservation value to the listed species. In the case of the northern spotted owl, the benefits of including an area as designated critical habitat include public awareness of the presence of northern spotted owls and the need for conservation, including habitat protection, and, where a Federal nexus exists, increased habitat protection for northern spotted owls through the Act’s section 7(a)(2) mandate that Federal agencies insure that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. Additionally, continued implementation of an ongoing management plan for the area that provides conservation equal to or greater than a critical habitat designation would reduce the benefits of including that specific area in the critical habitat designation. E:\FR\FM\10NOR2.SGM 10NOR2 62644 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations 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. We weigh the benefits of including or excluding particular areas according to the following principles pursuant to 50 CFR 17.90(d): (1) We analyze and give weight to impacts and benefits consistent with expert or firsthand information in areas outside the scope of the Service’s expertise unless we have knowledge or material evidence that rebuts that information. Impacts outside the scope of the Service’s expertise include, but are not limited to, nonbiological impacts identified by federally recognized Indian Tribes; State or local governments; and permittees, lessees, or contractor applicants for a permit, lease, or contract on Federal lands. (2) We analyze and give weight to economic or other relevant impacts relative to the conservation value of the area being considered. We give weight to those benefits in light of the Service’s expertise. (3) When weighing areas covered by conservation plans, agreements, or partnerships that have been authorized by a permit under section 10 of the Act, we consider: Whether the permittee is properly implementing the conservation plan or agreement; whether the species for which critical habitat is being designated is a covered species in the conservation plan or agreement; and whether the conservation plan or agreement specifically addresses the habitat of the species for which critical habitat is being designated and meets the conservation needs of the species in the planning area. (4) When weighing areas that are covered by conservation plans, agreements, or partnerships that have not been authorized by a permit under section 10 of the Act, we consider: The degree to which the record supports a conclusion that designation would impair the realization of the benefits expected from the plan, agreement, or partnership; the extent of public participation in the development of the conservation plan; the degree to which agency review and required determinations have been completed; whether NEPA reviews or similar reviews occurred, and the nature of any such reviews; the demonstrated implementation and success of the chosen mechanism; the degree to which the plan or agreement provides for the conservation of the physical or biological features that are essential to the conservation of the species; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented; and 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. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, then the Secretary will exclude the area under section 4(b)(2) unless, based on the best scientific and commercial data available, the failure to designate the area as critical habitat will result in the extinction of the species. Under section 4(b)(2) of the Act, we must consider all relevant impacts of the designation of critical habitat, including economic impacts. In addition to economic impacts (discussed in the Economic Analysis section, below), we considered a number of factors in a section 4(b)(2) analysis. We considered whether Federal or private landowners or other public agencies have developed management plans, habitat conservation plans (HCPs), or Safe Harbor Agreements (SHAs) for the area or whether there are conservation partnerships or other conservation benefits that would be encouraged or discouraged by exclusion from critical habitat in an area. We also considered other relevant impacts that might occur because of the designation. To ensure that our final determination is based on the best available information, we also considered comments received on economic, national security, or other potential impacts resulting from the 2012 designation of critical habitat from governmental, business, or private interests and, in particular, any potential impacts on small businesses. Based on the information provided by entities seeking exclusion, as well as any additional public comments received, we evaluated whether certain lands in the proposed revised critical habitat were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act. Exclusions Based on the information provided by entities supporting exclusions from critical habitat designation, as well as any additional public comments we received, we evaluated whether the areas proposed for exclusion were appropriate to exclude from the final designation under section 4(b)(2) of the Act. Our analysis indicated that the benefits of excluding these lands from the final designation outweigh the benefits of including the lands as critical habitat; therefore, the Secretary exercises her discretion to exclude these lands from the final designation. Accordingly, we exclude the areas identified in Table 8 Addendum under section 4(b)(2) of the Act from the critical habitat designation for the northern spotted owl. Table 8 identifies the specific critical habitat units from the December 4, 2012, final rule (77 FR 71876), which is codified in title 50 of the Code of Federal Regulations (CFR) at § 17.95(b), that we are excluding, at least in part; the approximate areas (ac, ha) of lands involved; and the ownership of the excluded areas. The Table 8 Addendum that follows displays this same information but in the format used in Table 8 in the December 4, 2012, final rule (77 FR 71876; pp.71948–71949). TABLE 8 ADDENDUM 1—LANDS EXCLUDED FROM THE FINAL REVISED DESIGNATION OF CRITICAL HABITAT FOR THE NORTHERN SPOTTED OWL UNDER SECTION 4(B)(2) OF THE ACT Critical habitat unit khammond on DSKJM1Z7X2PROD with RULES2 Type of agreement Resource Management Plan .................................................... VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 PO 00000 Frm 00040 State NCO OR ORC OR Fmt 4701 Sfmt 4700 Landowner/ agency BLM Harvest Land Base BLM Harvest Land Base Acres Hectares 10,320 ..................................... 4,177 27,774 ..................................... 11,240 E:\FR\FM\10NOR2.SGM 10NOR2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations 62645 TABLE 8 ADDENDUM 1—LANDS EXCLUDED FROM THE FINAL REVISED DESIGNATION OF CRITICAL HABITAT FOR THE NORTHERN SPOTTED OWL UNDER SECTION 4(B)(2) OF THE ACT—Continued Critical habitat unit Type of agreement Indian lands ............................................................................... State WCS OR ECS OR KLW OR KLE OR ORC KLE KLW OR OR OR Landowner/ agency BLM Harvest Land Base BLM Harvest Land Base BLM Harvest Land Base BLM Harvest Land Base CTCLUSI 2 CCBUTI 3 CCBUTI Total additional lands proposed for exclusion under section 4(b)(2) of the Act. Acres Hectares 22,017 ..................................... 8,910 18,837 ..................................... 7,623 13,987 ..................................... 5,660 91,198 ..................................... 36,906 5,571 ....................................... 10,772 ..................................... 3,818 ....................................... 2,254 4,359 1,449 204,294 ................................... 82,675 1 This table is an addendum to table 8 of the December 4, 2012, final rule (77 FR 71876); table 8 appears at 77 FR 71948–71949. is the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians. 3 CCBUTI is the Cow Creek Band of Umpqua Tribe of Indians. 2 CTCLUSI These exclusions are based on new information that has become available since the December 4, 2012, critical habitat designation for the northern spotted owl (77 FR 71876), including BLM’s 2016 revision to its RMPs for western Oregon (BLM 2016a, 2016b) and the Western Oregon Tribal Fairness Act (Pub. L. 115–103). In the paragraphs below, we provide a detailed analysis of our consideration of these lands excluded under section 4(b)(2) of the Act. khammond on DSKJM1Z7X2PROD with RULES2 Consideration of Economic Impacts We did not exclude areas from our December 4, 2012, final critical habitat designation (77 FR 71876) based on economic impacts, and we are not now excluding any areas solely on the basis of economic impacts. The FEA of the 2012 critical habitat designation for the northern spotted owl found the incremental effects of the designation to be relatively small due to the extensive conservation measures already in place for the subspecies because of its listed status under the Act and because of the measures provided under the NWFP (USFS and BLM 1994) and other conservation programs (IEc 2012, pp. 4– 32, 4–37). Thus, we concluded that the future probable incremental economic impacts were not likely to exceed $100 million in any single year, and impacts that are concentrated in any geographic area or sector were not likely as a result VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 of designating critical habitat for the northern spotted owl. The incremental effects included: (1) An increased workload for action agencies and the Service to conduct reinitiated section 7 consultations for ongoing actions in newly designated critical habitat (areas proposed for designation that were not already included within the extant designation); (2) the cost to action agencies of including an analysis of the effects to critical habitat for new projects occurring in occupied areas of designated critical habitat; and (3) potential project alterations in areas where owls are not currently present within designated critical habitat. Although we considered the incremental impact of administrative costs to Federal agencies associated with consulting on critical habitat under section 7 of the Act, economic impacts are not the primary reason for the exclusions we are adopting in this rule. See the December 4, 2012, final rule for a summary of the FEA and our consideration of economic impacts (77 FR 71876; pp. 71878, 71945–71947, 72046–72048). Our critical habitat regulations require that at the time of publication of a proposed rule to designate critical habitat, the Secretary make available for public comment a draft economic analysis of the designation (85 FR 82376, December 18, 2020). We reviewed the FEA (IEc 2012) as well as comments and additional PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 information received on the proposed rule, and determined that because we were proposing only to exclude (i.e., remove) areas from critical habitat and are not adding any areas not included in the 2012 designation and already analyzed in the 2012 economic analysis, the economic impact of the original designation would be further reduced and an entirely new economic analysis was not necessary. Instead, we have considered the 2012 economic analysis in conjunction with additional new information as described above and below. Further, we have determined that the exclusion of the Harvest Land Base lands from critical habitat for the northern spotted owl would not itself result in changes in management or conservation outcomes for those lands. The BLM considered the critical habitat designation in revising its RMPs in 2016, and the design and implementation of future projects will follow the RMP management direction for each land-use allocation. We analyzed the RMPs and concluded that the land-use allocations and the management direction—including carefully designed timber harvest within the Harvest Land Base—would not jeopardize the owl’s continued existence, nor destroy or adversely modify its designated critical habitat. With the exclusions of the Harvest Land Base areas from critical habitat finalized E:\FR\FM\10NOR2.SGM 10NOR2 62646 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations here, the RMP land-use allocations and management directions will continue to apply. The change in section 7 consultation as a result of these exclusions will be that BLM will no longer have to address whether its actions in the excluded Harvest Land Base areas result in the destruction or adverse modification of critical habitat. We note that during the public comment period on our prior proposed revised critical habitat rule (85 FR 48487, August 11, 2020), the American Forest Resource Council (AFRC 2020) and other commenters provided a new report prepared by The Brattle Group (2020) (Brattle Report) critiquing the 2012 critical habitat FEA (IEc 2012) and also provided a supplemental report prepared by The Brattle Group (2021) (Brattle supplement) in response to the July 20, 2021, proposed rule (86 FR 38246). The Brattle Report and supplement included updated estimates of the economic impacts of the 2012 rule using more recent data and/or different assumptions. We contracted with IEc to review the Brattle Report and provided a response to the report in the January 15, 2021, final rule (86 FR 4820; pp. 4825–4827). We also contracted with IEc to review the Brattle supplement and have provided a response to the supplement in this rule. We incorporated our review and consideration of this information in our response to comments above (See Comments (20–23). The Brattle Report and supplement do not alter our assessment that because we are removing areas from designation (rather than adding them), no new economic analysis is needed. Because the entire 2012 designation did not reach the threshold for economic significance under Executive Order 12866, these exclusions, which represent a reduction in the overall cost, logically also do not meet this threshold. khammond on DSKJM1Z7X2PROD with RULES2 Consideration of Impacts on National Security We did not exclude areas from our December 4, 2012, revised critical habitat designation based on impacts on national security, but we did exempt Joint Base Lewis-McChord lands based on the integrated natural resources management plan under section 4(a)(3) of the Act (77 FR 71876; pp. 71944– 71945). We did not receive any comments or additional information on the impacts of the proposed revised designation on national security or homeland security. Therefore, we are not excluding any additional areas on the basis of impacts on national security. VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 Exclusions Based on 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. 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, or candidate conservation agreements with assurances, or whether there are other conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we consider any Tribal forest management plans and partnerships and consider the government-to-government relationship of the United States with Tribes. Consistent with our regulations (see 50 CFR 17.90(d)(1)), we consider impacts identified by experts in, or by sources with firsthand knowledge of, areas that are outside the scope of the Service’s expertise, giving weight to those benefits consistent with the expert or firsthand information, unless we had knowledge or material evidence that rebuts that information. Indian Lands Several Executive Orders, Secretarial Orders, and policies concern our working with Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control Indian 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, 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 Tribal relationships 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 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 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 always consider exclusions of Indian 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. In this final designation, the Secretary has exercised her discretion under section 4(b)(2) of the Act to exclude from this critical habitat designation certain Indian lands (lands held in trust) for two federally recognized Tribes: 14,590 acres (5,808 hectares) for the Cow Creek Band of Umpqua Tribe of Indians (CCBUTI) and 5,571 acres (2,254 hectares) for the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians (CTCLUSI). See table 1 for the unit and subunit locations of these Indian lands. In our December 4, 2012, final rule (77 FR 71876), we prioritized areas for critical habitat designation by looking first to Federal lands, followed by State, private, and Indian lands. No Indian lands were designated in our 2012 final rule because we found that we could achieve the conservation of the northern spotted owl by limiting the designation to other lands. However, on January 8, 2018, the Western Oregon Tribal Fairness Act (Pub. L. 115–103) was passed by Congress and signed by the President. This act mandated that certain lands managed by BLM be taken into trust by the United States for the benefit of two Tribes and transferred management authority of approximately 17,800 acres (7,203 hectares) to CCBUTI and 14,700 acres (5,949 hectares) to CTCLUSI. Of the transferred lands, 20,161 acres (8,062 hectares) are located within designated critical habitat for the northern spotted owl. We considered this new information, as well as comments received on this proposed exclusion of these lands, and we are now excluding these Indian lands under section 4(b)(2) of the Act, as explained below. Benefits of Inclusion—Indian Lands Federal agencies, in consultation with the Service, must ensure that their actions are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of any designated critical habitat of such species. The difference in the outcomes of the jeopardy analysis and the adverse modification analysis represents the regulatory benefit and costs of critical habitat. A critical habitat designation requires Federal agencies to consult on E:\FR\FM\10NOR2.SGM 10NOR2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 whether their activity would destroy or adversely modify critical habitat to the point where recovery could not be achieved. Another possible benefit is that the designation of critical habitat can serve to educate landowners and land managers and the general public regarding the potential conservation value of an area, and this may contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. The designation of critical habitat, by providing information about the northern spotted owl and its habitat that reaches a wide audience, including other parties engaged in conservation activities, is considered of broad conservation value. Designation of critical habitat may also increase awareness of the conservation importance of the area when activities are addressed under other Federal laws that require consideration of the potential environmental effects of proposed projects. Designated critical habitat signals the presence of important habitat that can trigger additional environmental review under these laws, and can help to reinforce careful consideration of the effects of actions on the environment. For example, significant effects to designated critical habitat (even if not resulting in destruction or adverse modification under the Act) could lead to additional environmental review under the National Environmental Policy Act, or other Federal laws. Finally, there is the possible benefit that additional funding could be generated for habitat improvement by an area being designated as critical habitat. Some funding sources may rank a project higher if the area is designated as critical habitat. Thus, as Tribes compete for grants and other funding sources, wildlife-related conservation proposals that address areas of designated critical habitat may be more likely to be funded than projects not addressing critical habitat. Benefits of Exclusion—Indian Lands The benefits of exclusion of Indian lands from designated critical habitat are significant, and are tied to our commitment to support Tribal selfdetermination. We generally defer to Tribes to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the northern spotted owl and its habitat that might not otherwise occur. The CCBUTI and CTCLUSI are the governmental entities best situated to VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 manage and promote the conservation of the northern spotted owl on their trust land consistent with the principles and policies indicated in Secretarial Order 3206; Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2). Our deference to these Tribes for their management of their trust lands enhances our existing effective working relationships, and allows us to support the Tribes in the manner they consider most useful as they lead efforts for the conservation of the northern spotted owl and its habitat on these lands. We find that other conservation benefits are provided to the affected critical habitat subunits and the northern spotted owl and its habitat by excluding these lands from the designation. For example, the Continuous Forestry Management Approach adopted by the CCBUTI in their forest management plan takes proactive prevention, control, and recovery actions to mitigate damage and loss of forest values from wildfire, insects, and disease and other events. Additionally, the CTCLUSI has committed to coordination with the Service in developing its approach to conservation of listed species for these newly acquired lands. Both Tribes supported these exclusions in their comment letters in response to the proposed rule. For these reasons, we have determined that excluding these recently transferred lands from the designation of critical habitat for the northern spotted owl is of substantial benefit in aid of the unique relationship between the Federal Government and Tribes and in support of Tribal selfgovernance. Benefits of Exclusion Outweigh the Benefits of Inclusion—Indian Lands The benefits of including Indian lands in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, potential additional grant funding, and the reinforcing review of environmental effects under other laws. While these regulatory benefits are important, in the context here, the Tribes’ commitment to continue to coordinate with us in conserving habitat for the northern spotted owl in these newly acquired areas as they manage the landscape is also important. Consistent with principles of self-determination and the unique Federal–Tribal relationship, we conclude that these Tribally led efforts PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 62647 will be more effective if these lands are excluded from the designation. We view this as a substantial benefit because we have developed a cooperative working relationship for the mutual benefit of endangered and threatened species, including the northern spotted owl. Because the Tribes will implement habitat conservation efforts on these newly acquired lands, and are aware of the value of their lands for northern spotted owl conservation, the educational benefits of a northern spotted owl critical habitat designation are less important than they would otherwise be. For these reasons, we have determined that designation of critical habitat would have few, if any, additional benefits beyond those that will result from the presence of the subspecies. In summary, the benefits of these Indian lands in critical habitat are limited to some enhanced regulatory processes. The benefits of excluding these areas from designation as critical habitat for the northern spotted owl are significant, and include encouraging the continued development and implementation of special management measures that the Tribes plan for the future or are currently implementing. These activities and projects will allow the Tribes to manage their natural resources to benefit the northern spotted owl. This approach is consistent with the government-to-government nature of our working relationship with the Tribes, and also consistent with our published policies on Native American natural resource management. The exclusion of these areas will likely also provide additional benefits to the species that would not otherwise be available to encourage and maintain cooperative working relationships with the Tribes. We find that the benefits of excluding this area from critical habitat designation outweigh the benefits of including this area. Exclusion Will Not Result in Extinction of the Subspecies—Indian Lands We have determined that exclusion of these Indian lands will not result in extinction of the subspecies. Firstly, as discussed under Effects of Critical Habitat Designation Section 7 Consultation in the 2012 critical habitat rule (77 FR 71876, December 4, 2012, p. 71937), if a Federal action or permitting occurs, the known presence of northern spotted owls or their habitat would require evaluation under the jeopardy standard of section 7 of the Act, even absent the designation of critical habitat, and thus will protect the subspecies against extinction. Secondly, the Tribes are committed to protecting and E:\FR\FM\10NOR2.SGM 10NOR2 62648 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 managing these lands and species found on those lands according to their Tribal and cultural management plans and natural resource management objectives, which provide conservation benefits for the northern spotted owl and its habitat. Thirdly, the Indian lands we are excluding represent a very small percentage (0.0021 percent) of the critical habitat designation, and excluding these lands will not affect the overall function of critical habitat at the critical habitat-unit level or rangewide. Accordingly, we have determined that the 20,161 acres (8,062 hectares) of Indian lands are excluded under subsection 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of inclusion and will not cause the extinction of the subspecies. Federal Lands The Secretary has broad discretion under the second sentence of section 4(b)(2) on how to weigh the impacts of designation. In particular, ‘‘[t]he consideration and weight given to any particular impact is completely within the Secretary’s discretion.’’ (H.R. Rep. No. 95–1625, at 17 (1978)). In considering how to exercise this broad discretion, we are mindful that Federal land managers have unique obligations under the Act. First, Congress declared that ‘‘all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act’’; see section 2(c)(1). Second, all Federal agencies have responsibilities under section 7 of the Act to carry out programs for the conservation of listed species and to ensure their actions are not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. Specific to critical habitat, the only direct consequence of its designation is the Act’s requirement that Federal agencies ensure, through section 7 consultation, that any action they fund, authorize, or carry out does not destroy or adversely modify designated critical habitat. While the benefits of excluding non-Federal lands include development of new conservation partnerships, those benefits do not generally arise with respect to Federal lands, because of the independent obligations of Federal agencies under sections 2 and 7 of the Act. Accordingly, the benefits of including Federal lands in a designation are greater than non-Federal lands because there is a Federal nexus for projects on Federal lands. Thus, if a project for VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 which there is discretionary Federal involvement or control is likely to adversely affect the critical habitat, a formal section 7 consultation would occur and the Services would consider whether the project would result in the destruction or adverse modification of the critical habitat. The costs that this requirement may impose on Federal agencies can be divided into two types: (1) The additional administrative or transactional costs associated with the consultation process, and (2) the costs to Federal agencies and other affected parties, including applicants for Federal authorizations (e.g., permits, licenses, leases), of any project modifications necessary to avoid destruction or adverse modification of critical habitat. Thus, in any exclusion analysis for Federal lands, we will consider not only the transactional costs associated with section 7 consultation with a Federal agency, but also any potential costs to affected parties, including applicants for Federal authorizations (e.g., permits, licenses, leases, contracts), that would stem from any project modifications that may be required to avoid destruction or adverse modification of critical habitat. While we agree that the transactional costs of section 7 consultation with Federal agencies tend to be a relatively minor cost, we do not wish to foreclose the potential to exclude areas under Federal ownership in cases where the benefits of exclusion outweigh the benefits of inclusion. Consideration of other Federal agency transactional costs and other costs, including those to a permittee or lessee, are considered on a case-by-case basis. BLM Harvest Land Base Lands In this final designation, the Secretary has exercised her discretion under section 4(b)(2) of the Act to exclude from this critical habitat designation 184,133 acres (74,613 hectares) of Harvest Land Base lands that are described and managed pursuant to the BLM RMPs revised in 2016 (BLM 2016a, 2016b). See table 1 for the unit and subunit locations of these exclusions. 2016 BLM RMP Revisions—In 2011, the Service revised the northern spotted owl Recovery Plan (see 76 FR 38575, July 1, 2011), and the revised plan recommended ‘‘continued application of the reserve network of the NWFP until the 2008 designated spotted owl critical habitat is revised and/or the land management agencies amend their land management plans taking into account the guidance in this Revised Recovery Plan’’ (FWS 2011, p. II–3). In 2016, BLM revised its RMPs for western Oregon, resulting in two separate plans (BLM 2016a, 2016b). BLM’s 2016 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 revision of its RMPs considered the 2011 Recovery Plan recommendations as well as the revised critical habitat designation made in 2012. These two BLM plans, the Northwestern Oregon and Coastal Oregon Record of Decision and Resource Management Plan (BLM 2016a) and the Southwestern Oregon Record of Decision and Resource Management Plan (BLM 2016b), address all or part of six BLM districts across western Oregon. The BLM RMPs provide direction for the management of approximately 2.5 million acres (1 million hectares) of BLM-administered lands for the purposes of producing a sustained yield of timber, contributing to the recovery of endangered and threatened species, providing clean water, restoring fireadapted ecosystems, and providing for recreation opportunities (BLM 2016a, p. 20). The management direction provided in the RMPs is used to develop and implement specific projects and actions during the life of the plans. The BLM RMP revisions assigned land-use allocations across BLMmanaged lands in western Oregon; the land-use allocations define areas where specific activities are allowed, restricted, or excluded. The BLM landuse allocations include LateSuccessional Reserve, Congressionally Reserved Lands and National Conservation Lands, District-Designated Reserves, and Riparian Reserve (collectively considered ‘‘reserve’’ land use allocations) and Eastside Management Area and Harvest Land Base (BLM 2016a, pp. 55–74). Reserve land-use allocations comprise 74.6 percent (1,847,830 acres (747,790 hectares)) of the acres of BLM land under the RMPs (FWS 2016, p. 9). These lands are managed for various purposes, including preserving wilderness areas, natural areas, and structurally complex forest; recreation management; maintaining facilities and infrastructure; some timber harvest and fuels management; and conserving lands along streams and waterways. Of these lands, 51 percent (948,466 acres (383,830 hectares)) are designated as Late-Successional Reserve, 64 percent of which (603,090 acres (244,061 hectares)) are located within the critical habitat designation for the northern spotted owl (FWS 2016, p. 9). The management objectives for Late-Successional Reserve are designed to promote older, structurally complex forest and to promote or maintain habitat for the northern spotted owl and the marbled murrelet (listed as threatened under the Act), although some timber harvest of varying intensity is allowed. The Revised Recovery Plan for the Northern E:\FR\FM\10NOR2.SGM 10NOR2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 Spotted Owl relies on the LateSuccessional Reserve network as the foundation for northern spotted owl recovery on Federal lands (FWS 2011, p. III–41). The Harvest Land Base allocation comprises 19 percent (469,215 acres (189,884 hectares)) of the overall land use allocations and is where the majority of programmed timber harvest occurs (FWS 2016, p. 9; BLM 2016a, pp. 59–63). Of these acres, 39 percent (184,133 acres (74,613 hectares)) are located within the 2012 critical habitat designation for the northern spotted owl. Over 90 percent of these acres that are allocated to the Harvest Land Base and within designated critical habitat (172,712 acres (69,779 hectares)) are located on O&C lands. Under the management direction for the Harvest Land Base, timber harvest intensity varies based on the suballocation (moderate-intensity timber area, lightintensity timber area, or uneven-aged timber area) within the Harvest Land Base (BLM 2016a, pp. 59–63). The management direction specific to the northern spotted owl (BLM 2016a, p. 100) applies to all land-use allocations designated in the BLM RMPs. This direction provides for the management of habitat to facilitate movement and survival between and through large blocks of northern spotted owl nesting and roosting habitat. Based on new information provided in the revised BLM RMPs (BLM 2016a, 2016b), we are excluding from critical habitat 184,133 acres (74,613 hectares) of BLM lands where programmed timber harvest is planned to occur, i.e., the Harvest Land Base as described in the 2016 RMPs. Approximately 172,712 acres (69,779 hectares) of this Harvest Land Base are O&C lands. Benefits of Inclusion—BLM Harvest Land Base As discussed above, the primary effect of designating any particular area as critical habitat is the Act’s prohibition against the destruction or adverse modification of such habitat, which is evaluated in consultation with the Service under section 7 of the Act. Absent critical habitat designation, Federal agencies remain obligated under section 7 of the Act to consult with us on actions that may affect a federally listed species to ensure such actions do not jeopardize the species’ continued existence. In general, this obligation to consult regarding effects to critical habitat remains a conceptual benefit of inclusion of the Harvest Land Base lands in the designated critical habitat. However, we completed a programmatic VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 section 7 consultation on the BLM RMPs in 2016 that specifically addressed the impact of the BLM’s plans to undertake timber harvest in the Harvest Land Base, including the effects on designated critical habitat. In consultation, the Service found that the management actions, including the level of timber harvest anticipated under these RMPs over the 50-year proposed timeline, was not likely to jeopardize the subspecies or destroy or adversely modify critical habitat (FWS 2016, pp. 700–703). The programmatic approach of our section 7 consultation on the BLM RMPs allowed for the broad-scale evaluation of BLM’s program to ensure that the management direction and objectives of the program are consistent with the conservation of listed species, while also providing a framework for site-specific consultation at the steppeddown, project-level scale. As individual projects are proposed under these RMPs, BLM consults at the projectspecific level with the Service as necessary under section 7 to ensure that the site-specific actions will not jeopardize the subspecies, or destroy designated critical habitat. The stepdown consultations also provide an opportunity for BLM to further minimize impacts to northern spotted owls as on-the-ground actions are designed and implemented. As described in our Biological Opinion issued to the BLM (FWS 2016, pp. 4–5) and compared to a status quo without the BLM RMPs in place, the Service expects an overall net improvement in northern spotted owl populations on BLM lands under the RMPs, including when taking into account any take or adverse impacts to northern spotted owls due to timber harvest, fuels management, recreation, and other activities occurring under the RMPs. Our analysis of the impacts on the lands within the Harvest Land Base recognized that, while this land-use allocation was not intended to be relied upon for demographic support of northern spotted owls, the management direction under the BLM RMPs includes provisions that would contribute to the further development of late-successional habitat, including additional critical habitat features over time (FWS 2016, p. 553; 77 FR 71876, December 4, 2012, pp. 71906–71907). Although latesuccessional habitat currently existing within the Harvest Land Base may not remain on the landscape for the long term, the presence of northern spotted owl habitat within the Harvest Land Base in the short term would assist in northern spotted owl movement (PBF 4) across the landscape and could PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 62649 potentially provide refugia from barred owls while habitat continues to mature into more complex habitat and develop additional high-quality physical and biological features over time in reserved land-use allocations (FWS 2016, p. 553; 77 FR 71876, December 4, 2012, pp. 71906–71907). Several aspects of the RMPs are expected to provide for northern spotted owl dispersal between physiographic provinces and between and among large blocks of habitat designed to support clusters of reproducing northern spotted owls even with the expected focus of harvest in the Harvest Land Base (FWS 2016, p. 698): The spatial configuration of reserves; the management of those reserves to retain, promote, and develop northern spotted owl habitat; and the management and scheduling of timber sales within the Harvest Land Base. In particular, BLM refined their preferred alternative management approach to minimize the creation of strong barriers to northern spotted owl east-west movement and survival between the Oregon Coast Range and Oregon Western Cascades physiographic provinces, and north-south movement and survival between habitat blocks within the Oregon Coast Range province, by augmenting its allocation to Late-Successional Reserve in those areas (BLM 2016c, p. 17). Therefore, BLM-planned timber harvest during the interim period while a barred owl management strategy is considered is not expected to substantially influence the distribution of northern spotted owls at the local, action area, or rangewide scales. Of the designated critical habitat on BLM-managed lands in western Oregon addressed by the 2016 RMPs, 15 percent of critical habitat is designated on the Harvest Land Base and 85 percent is designated on other land-use allocations. We determined that the Harvest Land Base portion of the BLM landscape will provide less contribution to northern spotted owl critical habitat over time, while the reserve portions of the BLM lands will provide the necessary contributions for northern spotted owl conservation (FWS 2016, p. 554). BLM will continue to rely on the effectiveness monitoring established under the NWFP for the northern spotted owl and late-successional and old-growth ecosystems. Effectiveness monitoring will assess status and trends in northern spotted owl populations and habitat to evaluate whether the implementation of the BLM RMPs is reversing the downward trend of populations and maintaining and E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62650 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations restoring habitat necessary to support viable owl populations (BLM 2016a). In sum, the revised BLM RMPs provide for the conservation of the essential PBFs throughout the reserve land-use allocations and distribute the impacts to northern spotted owl habitat in the Harvest Land Base over time while the habitat conditions in the reserve land-use allocations improve. Based on our analysis in the Biological Opinion on the BLM RMPs (FWS 2016, pp. 700–703) and the BLM’s conclusions in its records of decision adopting the RMPs, the conservation strategies in the RMPs are likely to be effective. These conservation measures will continue to be in effect regardless of whether the Harvest Land Base areas are designated as critical habitat for the northern spotted owl. The Harvest Land Base areas provide a relatively low level of short-term conservation value for northern spotted owls. Retaining them as designated critical habitat, which suggests that they have a conservation value similar or equal to that of the reserve lands, sends a confusing message to the public and local land managers. Also, Federal actions in the Harvest Land Base that may affect designated critical habitat require section 7 consultation to address the effect on the designated habitat. Our experience in section 7 consultations to date indicates that these consultations provide little incremental conservation benefit over what is already provided for in these updated BLM RMPs and the section 7 consultations for activities that may affect the northern spotted owl for review of whether the activities jeopardize the subspecies. Section 7 consultations require considerable efforts by the involved BLM and Service biologists to identify and assess the effects to the designated critical habitat acres and increases the transactional time and effort spent on consultations, even though the conclusion by the Service has to date been consistently that no adverse modification has resulted. Thus, continuing to consult on adverse modification of critical habitat for actions in the Harvest Land Base is not an efficient use of limited consultation and administrative resources, given the thorough section 7 consultation already conducted on the 2016 RMPs and in the project-specific consultations conducted since the 2016 RMPs. The benefits of continuing to include Harvest Land Base areas within critical habitat for the northern spotted owl are, therefore, limited. Another benefit of including lands in a critical habitat designation is that it generally serves to educate landowners, land managers, State and local VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 governments, and the public regarding the potential conservation value of an area. Identifying areas of high conservation value for the northern spotted owl can help focus and promote conservation efforts by other parties. Any additional information about the needs of the northern spotted owl or its habitat that reaches a wider audience can be of benefit to future conservation efforts. This function is being achieved with the retention of critical habitat in the reserve land-use allocations. As discussed in the benefits of exclusion, however, this is is not the case for the BLM Harvest Land Base lands. for the BLM’s consideration of the conservation needs of the northern spotted owl in its resource management planning efforts. By incorporating and addressing those needs at the planning level, including engaging with the Service to help ensure a productive and robust network of reserves for the northern spotted owl, the BLM was able to develop RMPs and land-use allocations that also provide for timber production consistent with the conservation of the subspecies. This allows the Service to exclude areas to lessen regulatory burdens while conserving the northern spotted owl. Benefits of Excluding—BLM Harvest Land Base There are appreciable benefits that will be realized by excluding Harvest Land Base areas from critical habitat. Executive Order 12866 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. Excluding Harvest Land Base lands from the northern spotted owl critical habitat designation reduces the burden of additional section 7 consultation beyond any requirements to consult on effects to the subspecies for these lands that serve primarily to meet BLM’s timber sale volume objectives (see our response to Comment (3) for an explanation of the distinction between analyses completed for critical habitat versus the subspecies under section 7). As stated above, critical habitat in the Harvest Land Base has been determined to have relatively lower conservation value when compared to reserve areas, and there is a benefit to communicating this distinction to the public and land managers. Retaining them as designated critical habitat, which suggests that they have a conservation value similar or equal to that of the reserve land-use allocation lands, may send a confusing message to the public and local land managers, especially given that we confirmed in our biological opinion that the 2016 RMPs would not destroy or adversely modify this critical habitat. Therefore, excluding these Harvest Land Base lands from the critical habitat designation would provide some incremental benefit by clarifying that these lands (as compared with those in the reserve allocations) do not play a primary role in relation to northern spotted owl conservation, and by eliminating any unnecessary regulatory oversight. In addition, a benefit of exclusion of these lands is that it signals our support Benefits of Exclusion Outweigh the Benefits of Inclusion—BLM Harvest Land Base The biological and regulatory benefits of including the BLM Harvest Land Base in critical habitat are minimal given the management objective for this land-use allocation, which is to provide a sustained yield of timber. As we determined in our section 7 consultation with BLM regarding the RMPs, such management when considered with the other elements of habitat management in the RMPs provide for the conservation of the owl. Although these lands provide some short-term conservation value, we already determined that timber harvest of these areas will not result in the destruction or adverse modification of critical habitat as that term is defined in our implementing regulations under the Act. We have also conducted numerous site-specific consultations with the BLM regarding the effects of projects on designated critical habitat since the 2016 RMPs went into effect, and we have not found any actions that would destroy or adversely modify critical habitat. Section 7 consultations to address adverse modification of critical habitat for activities within the Harvest Land Base going forward would provide no incremental conservation benefit over the conservation already provided for in the BLM RMPs. Consultations to address effects to designated critical habitat in the Harvest Land Base would not be an efficient use of limited consultation and administrative resources that could be better utilized to address other forest-related issues, such as consultations on critical habitat for forest treatments in Late-Successional Reserve that improve the quality of northern spotted owl nesting, roosting, and foraging habitat or reduce susceptibility to disturbances, such as wildfire. Informational benefits of including the BLM Harvest Land Base in critical habitat is minimal, and retaining PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\10NOR2.SGM 10NOR2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations these areas as designated critical habitat, which suggests that they have a conservation value similar or equal to that of the Late-Successional Reserve, may be confusing to the public. In contrast, the benefits derived from excluding the Harvest Land Base outweigh the minimal benefit of including these lands in the designation. Excluding these areas clarifies the distinction between the management direction for reserves versus the Harvest Land Base. Additionally, excluding the Harvest Land Base reduces the unnecessary regulatory burden of additional section 7 analysis that will provide no additional conservation beyond what is already provided in the BLM RMPs and section 7 consultations for the owl under the ‘‘jeopardy’’ prong and may redirect limited resources towards section 7 consultations on actions that would improve critical habitat in the Late-Successional Reserve. Thus, the Secretary has determined that the benefits of excluding the BLM Harvest Land Base described in the 2016 BLM RMPs from the designation of critical habitat for the northern spotted owl outweigh the benefit of including these areas in critical habitat. khammond on DSKJM1Z7X2PROD with RULES2 Exclusion Will Not Result in Extinction—BLM Harvest Land Base We find that excluding the Harvest Land Base acres from the critical habitat designation, as finalized in this document, will have only a minor impact on the long-term conservation of the northern spotted owl and its habitat assuming that the conservation measures in the BLM RMPs are implemented as planned. Our 2016 Biological Opinion on the BLM RMPs found that the management actions anticipated under the RMPs, including harvest anticipated in the designated critical habitat in the Harvest Land Base, would not jeopardize the subspecies or destroy or adversely modify critical habitat (FWS 2016, pp. 700–703). Additionally, the Harvest Land Base lands represent only a small portion (less than 2 percent) of the overall critical habitat designation and represent only 19 percent of the land base managed by the BLM under the 2016 RMPs, with the remaining lands largely managed as reserves that provide demographic support of northern spotted owls. Therefore, and when considering that the remaining 98 percent of designated critical habitat is being retained on the landscape, we find that these exclusions will not result in extinction of the subspecies. VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 O&C Lands and Northwest Forest Plan Matrix Lands The January Exclusions Rule determined that the benefits of exclusion of all O&C lands and NWFP matrix lands from the critical habitat designation outweighed the benefits of inclusion. We have reconsidered the benefits of inclusion and exclusion and the weighing of these benefits in this rule. As stated above, the Secretary has very broad discretion under the second sentence of section 4(b)(2) on how to weigh the impacts of a critical habitat designation. The O&C lands we address here are those O&C lands within the designation, about 1.2 million acres (485,623 hectares), that are located on lands managed by the BLM outside the BLM’s Harvest Land Base land-use allocation as determined in the 2016 RMPs, as well as O&C lands managed by the USFS. Collectively, these lands (all in Oregon) comprise other land-use allocations, the majority (77 percent) of which are LateSuccessional Reserve and Riparian Reserve, and occur on lands managed by both the BLM (about 970,723 acres (392,837 hectares)) and USFS (about 237,561 acres (96,137 hectares)). The USFS matrix lands altogether (in three States) included in the 2012 critical habitat designation total about 2.1 million acres and (849,840 hectares) are managed by the USFS under the NWFP generally for timber harvest. The USFS manages some lands within the designated critical habitat that overlap, i.e., areas that are both O&C lands and allocated as ‘‘matrix’’ (about 75,818 acres (30,682 hectares)). Background on O&C Lands—The O&C lands were revested to the Federal Government under the ChamberlinFerris Act of 1916 (39 Stat. 218). The Oregon and California Revested Lands Sustained Yield Management Act of 1937, Pub. L. 75–405 (O&C Act), addresses the management of O&C lands. The O&C Act identifies the primary use of revested timberlands for permanent forest production. These lands occur in western Oregon in a checkerboard pattern intermingled with private land across 18 counties. The intermingled private lands are largely industrial timberlands managed primarily for timber production; as such, these private lands contain very little high-quality habitat for the northern spotted owl (and no designated critical habitat). Most of the O&C lands (82 percent) are administered by BLM (FWS 2019, p. 1) pursuant to its RMPs. BLM’s RMPs identify certain revested timberlands for commercial timber harvest. The O&C Act provides that PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 62651 these lands be managed ‘‘for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the principle of sustained yield for the purpose of providing a permanent source of timber supply, protecting watersheds, regulating stream flow, and contributing to the economic stability of local communities and industries, and providing recreational facilities.’’ The counties where O&C lands are located participate in a revenue-sharing program with the Federal government based on commercial receipts (e.g., income from commercial timber harvest) generated on these Federal lands. Since the mid-1970s, scientists and land managers have recognized the importance of forests located on O&C lands to the conservation of the northern spotted owl and have attempted to reconcile this conservation need with other land uses (Thomas et al. 1990, entire). Starting in 1977, BLM worked closely with scientists and other State and Federal agencies to implement northern spotted owl conservation measures on O&C lands. Over the ensuing decades, the northern spotted owl was listed as a threatened species under the Act (55 FR 26114, June 26, 1990), critical habitat was designated (57 FR 1796, January 15, 1992) and revised two times (73 FR 47326, August 13, 2008; 77 FR 71876, December 4, 2012) on portions of the O&C lands, and a recovery plan for the owl was completed (73 FR 29471, May 21, 2008, p. 29472) and revised (76 FR 38575, July 1, 2011). These and other scientific reviews consistently recognized the need for large portions of the O&C forest to be managed for northern spotted owl conservation while also providing for other uses of these lands. Background on USFS Matrix Lands— The USFS matrix lands are managed under the 1994 NWFP amendments to forest plans and support timber production while also retaining some biological legacy components important to old-growth obligate species that would persist into future managed timber stands. Matrix lands occur across the range of the northern spotted owl in Washington, Oregon, and California. This land-use allocation was first identified in 1994. In 2012, we designated as critical habitat a subset of USFS matrix lands—those matrix lands that contain the features essential to the conservation of the subspecies and function as highly valuable northern spotted owl habitat. These areas are essential to providing for demographic support and successful dispersal of the E:\FR\FM\10NOR2.SGM 10NOR2 62652 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 northern spotted owl and for buffering competition with the barred owl. Although we work closely with the USFS to incorporate northern spotted owl conservation considerations into the USFS’s ongoing land management actions through the section 7 consultation process, the USFS has not yet revised its forest plans and applied the recommendations of the 2011 Revised Recovery Plan nor expressly taken into consideration the 2012 critical habitat designation into these plans as has the BLM with their 2016 RMPs. The USFS has, however, initiated efforts to update the individual forest plans in the range of the northern spotted owl and is expected to complete this process in coming years. We will continue to work closely with the USFS to address the conservation needs of the northern spotted owl as the agency updates its various forest plans. Benefits of Inclusion—O&C Lands and Matrix Lands As discussed above, the primary effect of designating any particular area as critical habitat is the requirement for Federal agencies to consult with us under section 7 of the Act to ensure actions they carry out, authorize, or fund do not destroy or adversely modify designated critical habitat. Absent critical habitat designation, Federal agencies remain obligated under section 7 of the Act to consult with us on actions that may affect a federally listed species to ensure such actions do not jeopardize the species’ continued existence. The January Exclusions Rule stated that the benefits of including the O&C lands and matrix lands are small because agencies would still be required to ensure that discretionary actions they fund, authorize, or carry out would not jeopardize the continued existence of the subspecies, regardless of whether those lands are designated as critical habitat. Upon reconsideration, we find that the section 7 consultations on critical habitat provide significant benefits as described below. The critical habitat designation benefits the northern spotted owl as a rangewide conservation strategy and network that connects large blocks of habitat that are able to support multiple clusters of northern spotted owls. Both the O&C lands and USFS lands included in the designation provide connectivity and habitat areas in a spatial configuration that is essential to the conservation of the northern spotted owl. The O&C lands, for example, encompass 37 percent of the lands that were covered under the NWFP in Oregon and provide important habitat for reproduction, connectivity, and VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 survival in the Coast Range and portions of the Klamath Basin; they provide connectivity through the Coast Range; and they provide connectivity between the Coast Range and western Cascades (Thomas et al. 1990, p. 382, BLM 2016c, p. 17). Similarly, USFS matrix lands within the designation provide 2.14 million acres of important habitat and connectivity across all three States. Our 2012 final critical habitat designation reduced the amount of matrix lands from what we proposed to ensure that only essential habitat was designated (77 FR 71876; 71889). Our evaluation in the 2012 critical habitat rule found that we cannot achieve recovery of the northern spotted owls without the majority of O&C lands and remaining matrix lands currently designated as critical habitat. Additionally, recent scientific findings and our December 15, 2020, finding (and supporting species report) that the northern spotted owl warrants reclassification to endangered status emphasize the importance of maintaining habitat in light of competition with barred owls (Wiens et al. 2021, pp. 1, 2; Franklin et al. 2021, p. 18; 85 FR 81144; FWS 2020, p. 83). The critical habitat designation also identifies areas on the landscape that may require special management considerations or protection. These considerations are of even more importance given the statutory purpose of the O&C lands and the management direction for USFS matrix lands that focus primarily on commercial timber harvest (see Special Management Considerations and Protection in our 2012 critical habitat rule (77 FR 71876; p. 71908)). Through the critical habitat designation and the section 7 consultation process, the Service is able to work collaboratively with the USFS and the BLM to help design how timber harvest can occur in these areas while also minimizing impacts to spotted owl recovery. Conserving extant, high-quality habitat and addressing the threat from barred owls are key components of the special management considerations in our 2012 critical habitat rule as well as our biological opinion on the BLM’s 2016 RMPs. Because the barred owl is present throughout the range of the northern spotted owl, special management considerations or protections may be required in all or many of the critical habitat units and subunits to ensure the northern spotted owl has sufficient habitat available to withstand competitive pressure from the barred owl (Dugger et al. 2011, pp. 2459, 2467; Franklin et al. 2021, p. 18; 85 FR 81144; FWS 2020, p. 83; Wiens et al. 2021, pp. 1, 2). In particular, studies by PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 Dugger et al. (2011, p. 2459) and Wiens (2012, entire) indicated that northern spotted owl demographic performance is better when additional high-quality habitat is available in areas where barred owls are present. Additionally, scientific peer reviewers of the 2011 Revised Recovery Plan for the Northern Spotted Owl (FWS 2011, entire) and Forsman et al. (2011, p. 77) recommended that we address currently observed downward demographic trends in northern spotted owl populations by protecting currently occupied sites, as well as historically occupied sites, and by maintaining and restoring older and more structurally complex multilayered conifer forests on all lands (FWS 2011, pp. III–42 to III– 43). The types of management or protections that may be required to achieve these goals and maintain the physical or biological features essential to the conservation of the owl in occupied areas vary across the range of the subspecies. Some areas of northern spotted owl habitat, particularly in wetter forest types, are unlikely to be enhanced by active management activities, but instead need protection of the essential features; whereas other forest areas would likely benefit from more proactive forestry management. For example, in drier, more fire-prone regions of the owl’s range, habitat conditions will likely be more dynamic, and more active management may be required to reduce the risk to the essential physical or biological features from fire, insects, disease, and climate change, as well as to promote regeneration following disturbance. The designation of these areas as critical habitat benefits the subspecies by ensuring that the special management considerations identified in the 2012 critical habitat rule are considered in the design and implementation of timber harvest projects in these areas. The additional analysis required for critical habitat in a section 7 consultation requires action agencies to evaluate the effects of their actions on the critical habitat components that support the life history of the northern spotted owl regardless of whether the area is currently occupied by northern spotted owls; these are identified in the critical habitat rule as the physical and biological features (or primary constituent elements) that provide for nesting, roosting, foraging, and dispersal. In our consultations, the Service evaluates how those actions affect the conservation value of the critical habitat subunit to provide those features, and the analysis is then scaled up to evaluate those effects at the E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations critical habitat unit scale and the critical habitat designation as a whole. Evaluating habitat at multiple scales in consultations on timber harvest actions in critical habitat ensures the landscape continues to support the habitat network locally, regionally, and rangewide. We previously concluded in a Biological Opinion that the BLM’s 2016 RMPs provide adequate contributions for the recovery of the spotted owl, and thus the exclusion of the Harvest Land Base lands from critical habitat and some harvest of these lands is likewise consistent with recovery. In reconciling the sometimes conflicting goals of spotted owl recovery with providing a reliable timber harvest from Federal lands, we worked with BLM in their 2016 RMPs to greatly minimize impacts to spotted owls. We conclude that the relatively small amount of impact to spotted owls from timber harvest on these BLM lands is offset by the increase in conservation of extant forest on BLM lands, the recruitment of improved habitat in the future on those lands, and the BLM’s commitment to help manage barred owls. In contrast, we do not yet have an updated programmatic Biological Opinion on USFS land management plans that addresses critical habitat for the northern spotted owl, although the USFS completes section 7 consultation with us at the project level on actions that affect critical habitat for the subspecies. To date, our review in section 7 consultations has found all proposed timber harvest under the NWFP on National Forest System lands in critical habitat to: (1) Be compatible with northern spotted owl conservation, and (2) not destroy or adversely modify critical habitat. These consultations on critical habitat provide a benefit to the northern spotted owl in that they provide an opportunity for the Service to review projects that will occur within critical habitat to ensure the function of the network will remain intact. We conclude that review of projects proposed in critical habitat on USFS matrix lands and O&C lands through the ongoing section 7 consultation processes under current land management plans continues to be an appropriate way to evaluate effects of USFS and BLM actions on critical habitat function and is an important benefit of including these lands in the critical habitat designation. Another benefit of including lands in a critical habitat designation is that it generally serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 Identifying areas of high conservation value for the northern spotted owl can help focus and promote conservation efforts by other parties. Any additional information about the needs of the northern spotted owl or its habitat that reaches a wider audience can be of benefit to future conservation efforts. There is a benefit to communicating to the public and land managers that despite the O&C lands and matrix lands designations, the habitat areas found on these lands are essential to the conservation of the northern spotted owl. We work closely with both the BLM and USFS in our coordinated section 7 consultation processes, and have a keen understanding of the agencies’ mission and mandates. Our local biologists meet regularly to discuss upcoming and ongoing Federal projects and their effects to both the subspecies and its critical habitat, and to address any concerns about the section 7 consultation process. Additionally, we meet regularly with local and regional forest managers with both agencies. This process and partnership, established under the NWFP, has been effective for many years. We conclude that this collaborative approach, which includes reviewing projects and discussing how they affect the physical and biological features of critical habitat for the northern spotted owl, is a benefit of including these lands in the critical habitat designation. Benefits of Exclusion—O&C Lands and Matrix Lands There would be benefits realized by excluding O&C lands and USFSmanaged matrix lands from critical habitat. Executive Order 12866 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. Excluding O&C lands and USFSmanaged matrix lands from the northern spotted owl critical habitat designation would reduce the burden of additional section 7 consultation beyond any requirements to consult on effects to the subspecies for these lands (see our response to Comment (3) for an explanation of the distinction between analyses completed for critical habitat versus the species under section 7). The January Exclusions Rule stated that eliminating the requirement to complete section 7 consultation on critical habitat, in effect lessening one of the regulatory hurdles, could lead to increased timber production in support of the management of the O&C lands for PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 62653 the production of timber. The January Exclusions Rule further stated that, because land management plans or amendments would undergo programmatic section 7 consultation to ensure that management actions do not jeopardize the continued existence of the subspecies, consulting on critical habitat is not an efficient use of limited consultation and administrative resources. Upon reconsideration, however, we find greater value in continuing to consult programmatically and at the project level under section 7 on critical habitat on O&C lands outside of those allocated by BLM to the Harvest Land Base, and on USFS-managed matrix lands. The benefits derived in these section 7 consultations to address effects to critical habitat ensure special management considerations are taken into account when designing and implementing landscape-scale management programs and subsequent timber harvest projects within critical habitat. The consultations allow the Service to evaluate the effects on the functionality of the critical habitat network, and ensure that functionality is not significantly impaired. Since the implementation of the 2016 RMPs, we have the benefit of several years of experience in section 7 consultations with the BLM regarding the effect of proposed actions on the O&C lands. We find that focusing our consultation and administrative capacity on section 7 consultations in the O&C lands outside of the BLM’s Harvest Land Base lands is a priority given that the majority of this area is designated as LateSuccessional Reserve and Riparian Reserve that contribute essential habitat for the northern spotted owl. Likewise, we find that focusing our resources on consultations in the USFS-managed matrix lands is also a priority given that programmatic consultation has not occurred for critical habitat on these lands. Additionally, as stated above, the O&C lands outside of the BLM Harvest Land Base allocation, and USFSmanaged matrix lands included in the critical habitat designation, provide areas of higher-quality habitat that owls prefer for nesting, roosting, and foraging behavior and lower-quality habitat to provide for dispersal for northern spotted owls. Excluding them as designated critical habitat, which suggests that they have a conservation value that is less than that of the reserve land-use allocation lands, may send a confusing message to the public and local land managers. Therefore, the benefit of excluding the O&C lands and E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 62654 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations USFS matrix lands from the critical habitat designation is reduced. Based on our FEA (IEc 2012), we found that the most potential for economic impacts from the critical habitat designation would occur in relation to ‘‘unoccupied matrix lands’’ (at the time of the 2012 designation, BLM’s Harvest Land Base lands were also considered matrix lands under the NWFP), which is where the difference between habitat being designated as critical, or not, would likely make the most difference. ‘‘Unoccupied matrix lands’’ in the FEA means areas of forested habitat (generally of less high quality relative to northern spotted owl needs) that at the time of the proposed project being consulted on under section 7 would not have resident northern spotted owls. In the absence of a critical habitat designation, the Federal agency would have to first evaluate whether or not the proposed habitat modification would have an effect on northern spotted owls. Generally speaking, if there are no resident owls present and the habitat is not of particularly high quality nor designated as critical, Federal actions that would modify that habitat are less likely to create an adverse effect on the owl at an individual, let alone species level. And, in some cases, especially if the habitat to be modified is of marginal quality for the owl, the Federal agency may determine there is no effect on the species at all, in which case no section 7 consultation with the Service is required. If, on the other hand, the habitat being modified by the Federal action is designated as critical habitat, the current presence or absence of owls in the area is less relevant because the effect being analyzed is to that habitat, and the effect of the modification on the conservation value of the habitat for the species has to be considered. Thus, the critical habitat designation could require the Federal agency to undertake consultation with the Service and be precluded from adverse modification of the designated critical habitat, in an area where, absent that designation, the Federal agency might not have to consult at all because of the absence of effects to the species. However, the FEA of the 2012 critical habitat designation for the northern spotted owl found the incremental effects of the designation to be relatively small due to the extensive conservation measures already in place for the subspecies because of its listed status under the Act and because of the measures provided under the NWFP (USFS and BLM 1994) and other conservation programs (IEc 2012, pp. 4– 32, 4–37). The incremental effects VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 included: (1) An increased workload for action agencies and the Service to conduct reinitiated section 7 consultations for ongoing actions in newly designated critical habitat (areas proposed for designation that were not already included within the extant designation); (2) the cost to action agencies of including an analysis of the effects to critical habitat for new projects occurring in occupied areas of designated critical habitat; and (3) potential project alterations in areas where owls are not currently present within designated critical habitat. The FEA (IEc 2012) evaluated three scenarios to capture the full range of potential economic impacts of the designation. The first scenario contemplates that minimal or no changes to current timber management practices will occur, thus the incremental costs of the designation would be predominantly administrative. The potential additional administrative costs due to critical habitat designation on Federal lands range from $185,000 to $316,000 on an annualized basis for timber harvest. The second scenario posits that Federal agencies may choose to implement management practices that yield an increase in timber harvest relative to the baseline (current realized levels of timber harvest). For this scenario, baseline harvest projections were scaled upward by 10 percent, resulting in a positive impact on Federal lands ranging from $893,000 to $2,870,000 on an annualized basis for timber harvest. The third scenario considers that action agencies may choose to be more restrictive in response to critical habitat designation, resulting in a decline in harvest volumes relative to the baseline. To illustrate the potential for this effect, baseline harvest projections were scaled downward by 20 percent, resulting in a negative impact on timber harvest on Federal lands ranging from $2,650,000 to $6,480,000 on an annualized basis. The USFS and BLM suggested certain alterations to the baseline timber harvest projections, based on differing assumptions regarding northern spotted owl occupancy in matrix lands and projected levels of timber harvest relative to historical yields. The FEA presents the results of a sensitivity analysis considering these alternative assumptions, which widen the range of annualized potential impacts to Federal timber harvest relative to the scenarios described above (IEC 2012b, pp. 4–37 to 4–39). This sensitivity analysis contemplated a situation in which 26.6 percent of northern spotted owl habitat on BLM matrix lands is unoccupied, and a 20 percent increase in baseline PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 timber harvest in USFS Region 6 relative to historical yields. The range of incremental impacts under these alternative assumptions widens to a potential annualized increase of $700,000 under Scenario 2, and an annualized decrease of $1.4 million under Scenario 3, relative to the results reported above. The January Exclusions Rule states that, recognizing the expertise of locally elected governments in areas relating to economic stability, exclusion of the O&C and matrix lands would benefit local counties and communities by supplying jobs and county revenues for schools and roads, and protecting the local tax base. In our reconsideration of that rule, we agree that economic benefits to the counties may ultimately accrue if O&C lands and matrix lands were excluded from the critical habitat designation because there would be a potential increase in timber harvest in some areas where, but for the critical habitat designation, the habitat modification would not be precluded via the Act otherwise. However, our 2012 FEA identified a range of potential outcomes due to the designation, including positive and negative effects. The analysis identified those counties that may be more sensitive to future changes in timber harvests, industry employment, and Federal land payments. Potential timber harvest changes related to critical habitat designation, whether positive, negative, or neutral, are one potential aspect of this sensitivity. The counties identified as relatively more sensitive to future changes in timber harvests, employment, and payments were Del Norte and Trinity Counties, California; Douglas and Klamath Counties, Oregon; and Skamania County, Washington. With regard to jobs, increases or decreases in timber harvests from Federal or private lands could result in positive or negative changes in jobs, respectively. The FEA notes that many factors affect timber industry employment (IEc 2012, Chapter 6). The scope of our analysis was limited to the incremental effects of critical habitat within the area proposed for designation by the northern spotted owl. The FEA did not consider potential changes in timber activities outside the proposed critical habitat designation, and did not evaluate the potential effects related to the timber industry as a whole. We also considered information concerning economic impacts submitted by commenters, including AFRC and several counties, in the Brattle Report and Brattle supplement. See our responses to Comments (20–23) addressing several issues with the E:\FR\FM\10NOR2.SGM 10NOR2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations analysis provided in the Brattle reports, specifically the assumptions or data used to produce the estimate of negative annualized timber harvest impacts due to the critical habitat designation. As discussed in our responses to Comments (20–23), we do not agree with their ultimate conclusions and find that the FEA provides the best available information on the incremental impacts of the 2012 critical habitat designation, as supplemented by the additional information provided by IEc (IEc 2020, 2021). Commenters also provided comments referring to Sierra Institute for Community and Environment and Spatial Informatics Group, titled ‘‘Response to the Economic Analysis of Critical Habitat Designation for the Northern Spotted Owl by Industrial Economics.’’ We addressed this report in our 2012 critical habitat rule; see our responses to Comments (201–213) in that rule (77 FR 71876; 72040–72043). The January Exclusions Rule stated that making more lands available for timber harvest could lead to longer cycles between harvests or to harvests designed to benefit the northern spotted owl and reduce the risk of catastrophic wildfire, and that northern spotted owls can use second-growth timber that leaves a few snags or old trees on the harvested land. Upon reconsideration, we find there is much uncertainty about the potential that harvest cycles would be extended were the O&C lands and USFS matrix lands excluded. Rotation ages of federally managed lands are determined by the BLM and USFS considering a wide range of information and responsibilities, not just related to the northern spotted owl, or even the Act. In addition, the assumption in the January Exclusions Rule that excluding the O&C lands and USFS matrix lands would improve the management of Federal forested lands to reduce wildfire risks rests on an incorrect assumption that the critical habitat designation generally precludes habitat management to reduce wildlife risk. As stated throughout the 2012 critical habitat rule, active management of forests is encouraged, where appropriate, to reduce the risk of catastrophic wildfire. We agree that while northern spotted owls may use second-growth forests, this is not their preferred habitat for meeting all of their life history needs. Their use of these areas is dependent on the age, diversity, and condition of those forests as well as on their proximity to large blocks of habitat that provide for reproduction and population growth. Scientific peer reviewers of the 2011 Revised Recovery Plan for the Northern Spotted Owl (FWS 2011, entire) and Forsman et al. (2011, VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 p. 77) recommended that we address currently observed downward demographic trends in northern spotted owl populations by protecting currently occupied sites, as well as historically occupied sites, and by maintaining and restoring older and more structurally complex multilayered conifer forests on all lands (FWS 2011, pp. III–42 to III– 43). Benefits of Inclusion Outweigh the Benefits of Exclusion—O&C Lands and Matrix Lands When weighing the benefits of inclusion and the benefits of exclusion of areas, we analyze and give weight to impacts and benefits consistent with expert or firsthand information in areas outside the scope of the Service’s expertise unless we have knowledge or material evidence that rebuts that information. Impacts outside the scope of the Service’s expertise include, but are not limited to, nonbiological impacts identified by federally recognized Indian Tribes; State or local governments; and permittees, lessees, or contractor applicants for a permit, lease, or contract on Federal lands. We also analyze and give weight to economic or other relevant impacts relative to the conservation value of the area being considered. We give weight to those benefits based on the Service’s expertise. We considered economic information submitted from commenters in the Brattle Report and supplement; however, the 2012 FEA (IEc 2012) and subsequent review of the report and supplement by IEc rebuts the information in those reports (IEc 2020, 2021). We acknowledge there is uncertainty over whether economic impacts will occur and to what extent, as well as uncertainty over whether exclusion of the O&C lands and matrix lands would result in economic benefits to the counties and communities where critical habitat is designated. We also acknowledge that the economic impacts, depending on the analysis and assumptions used, are not insignificant. However, even assuming the high end of the economic impacts identified in our economic analysis, or the higher economic impacts suggested by some commenters, such as AFRC and counties, based on the Brattle Report and supplement, ultimately we give greater weight to the conservation value of the O&C lands and USFS matrix lands than to potential economic benefits of excluding these lands, for the following reasons. First, these areas are of significant conservation value to the spotted owl given the geographical location of the PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 62655 O&C lands and USFS matrix lands and the essential habitat they provide for the northern spotted owl. Our evaluation of the O&C lands and matrix lands in our 2012 critical habitat rule, and that of peer reviewers who reviewed the rule, demonstrates their importance to the conservation of the northern spotted owl. Additionally, our evaluation of a habitat network with reduced areas of high-value habitat on O&C lands and USFS matrix lands indicated a significant increase in extinction risk to the subspecies. Second, our evaluation of the best available information on the status of the subspecies resulted in our recent finding that the northern spotted owl’s status has declined such that we would be warranted in concluding that is now an ‘‘endangered’’ species under the Act, and not just ‘‘threatened,’’ i.e., it is in danger of extinction throughout all or a significant portion of its range and warrants reclassification, but that such ‘‘uplisting’’ is precluded by other priorities (such as work to evaluate whether to list a species not already on the list). This ‘‘warranted but precluded’’ finding, which was made just prior to the January Exclusions Rule, reinforces the importance of ensuring essential habitat remains across the landscape conservation network provided by the designation. Third, subsequent to this ‘‘warranted but precluded’’ finding, the most recent demographic meta-analysis (Franklin et al. 2021) found that northern spotted owls are declining at an accelerated rate (5.3 percent across their range), and populations in Oregon and Washington have declined by over 50 percent, with some declining by more than 75 percent, since 1995. Fourth, the requirement for the USFS and BLM to consult with the Service concerning proposed impacts to critical habitat in the O&C lands outside of the BLM’s Harvest Land Base and on the USFS matrix lands provides for meaningful coordination between the Service and the agencies regarding actions they are proposing and the needs of the northern spotted owl, providing a conservation benefit to owl recovery in Oregon, California, and Washington. The benefits derived in these section 7 consultations ensure special management considerations are taken into account when designing and implementing timber harvest projects within critical habitat and provide an opportunity to evaluate the effects those projects have on the functionality of the critical habitat network given the nature of projects that are likely to occur in these areas. E:\FR\FM\10NOR2.SGM 10NOR2 62656 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 Fifth, designation of these areas as critical habitat clearly and unambiguously communicates to the public their disproportionate conservation value to spotted owl recovery, while excluding them from critical habitat would serve to confuse the public about their importance. In sum, we find that the benefits of retaining as critical habitat the areas of O&C lands (outside of BLM’s Harvest Land Base) and the currently designated USFS matrix lands outweigh the benefits of excluding these areas from critical habitat. Exclusion Will Result in Extinction— O&C Lands and Matrix Lands Under section 4(b)(2) of the Act, the Secretary cannot exclude areas from critical habitat if she finds, ‘‘based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.’’ We find, contrary to the January Exclusions Rule, that even were we to conclude that the benefits of exclusion of the O&C Act lands and the USFS matrix lands outweighed the benefit of their inclusion, their exclusion would result in the extinction of the northern spotted owl, and so such exclusion is prohibited under the Endangered Species Act. See also our analysis in Withdrawal of the January Exclusions Rule above. There are large areas of important high-quality northern spotted owl habitat located on O&C lands and USFS matrix lands that were designated as critical habitat in 2012. Lower-quality habitat also occurs within these lands that provide for connectivity between areas of higher-quality habitat and nesting and roosting when higherquality habitat is not available in a particular location. The 2012 critical habitat designation included northern spotted owl habitat in reserve land-use allocations, O&C lands, and the matrix that we found essential for the conservation of the subspecies based on our modeling results, expert biological opinion, and peer review. We determined that we cannot attain recovery of the northern spotted owl without conserving the habitat on these lands and that excluding them significantly increased the risk of extinction. Peer reviewers of both the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and our proposed rule to revise critical habitat in 2012 supported this finding. The January Exclusions Rule stated that, because competition with barred owls is the largest negative contributing factor to the decline of northern spotted VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 owls, barred owl management must occur in order to protect the northern spotted owl from extinction. Upon reconsideration, we agree that barred owl management is necessary to prevent extinction of the northern spotted owl but also find that a reduction in habitat conservation (through exclusions from designated critical habitat) at the scale of all O&C lands and USFS matrix lands, in concert with the impacts from the barred owl, will result in the extinction of the northern spotted owl. As discussed in our recent 12-month finding and supporting documentation, the subspecies is in precipitous decline and warrants reclassification as endangered (85 FR 81144, December 15, 2020)—that is, the subspecies is in danger of extinction throughout all or a significant portion of its range. The northern spotted owl has experienced rapid population declines and potential extirpation in Washington and parts of Oregon, is functionally extirpated from British Columbia, and continues to exhibit similar declines in other parts of the range. Northern spotted owls are declining at a rate of 5.3 percent across their range, and populations in Oregon and Washington have declined by over 50 percent, with some declining by more than 75 percent, since 1995 (Franklin et al. 2021). Franklin et al. (2021, p. 18) emphasizes the importance of maintaining northern spotted owl habitat, regardless of occupancy, in light of competition from barred owls to provide areas for recolonization and connectivity for dispersing northern spotted owls. Exclusion of large areas of critical habitat undermines this principle. The January Exclusions Rule stated that, although 3.4 million acres (1.4 million hectares) were excluded in that rule, the conservation provided to northern spotted owls in national parks and designated wilderness areas would ensure that the subspecies would not become extinct. See our reconsideration of the conservation value provided by these lands in our response to Comment (Cii). As we stated in our July 20, 2021, proposal, some of these areas are widely dispersed and cannot be relied on to sustain the subspecies unless they are part of and connected to a wider reserve network as provided by the 2012 critical habitat designation (77 FR 71876). The January Exclusions Rule further stated that section 7 consultations on the subspecies would ensure the exclusion of the lands would not result in extinction of the northern spotted owl. As we discussed previously, section 7 consultations regarding whether or not a Federal action that adversely affects the species will PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 ultimately jeopardize the continued existence of the species is an important tool for protecting a species even in absence of a critical habitat designation. Upon further review, however, that protection against ‘‘jeopardy’’ is not a complete stand-in for an analysis of effects to important habitat necessary for the subspecies, particularly when considering the difference in scale between the January Exclusions Rule and what we exclude in this final rule. In this final rule, we are excluding about two percent of the designated critical habitat based on a programmatic consultation that considered the longterm effects of removal of that habitat by timber harvest and found it would not adversely modify the critical habitat, nor jeopardize the subspecies. We have since then conducted a number of evaluations in consultation on sitespecific projects removing habitat in the Harvest Land Base and have again concluded, based on the best scientific information, that the actions will not result in the adverse modification of the value of the critical habitat to the subspecies nor result in jeopardy to the subspecies. These together give us confidence in the appropriateness of the exclusions we finalize today. The January Exclusions Rule, on the other hand, would have excluded nearly 36 percent of the current designated critical habitat, without benefit of a programmatic approach by the relevant Federal land-managing agencies and a section 7 consultation to confirm the effects would not adversely modify the critical habitat for the subspecies nor would jeopardize it. Neither do we have the experience of several years of consultations at a project-specific level to consider the effects of removal of this habitat from the landscape and affirm it would not jeopardize the subspecies. To the contrary, based on the information we have, we conclude that such exclusions would result in the extinction of the owl. In such an instance, reliance on the section 7 ‘‘jeopardy’’ standard in future consultations alone is not a sufficient basis to affirm the benefits of exclusion. The NWFP and the BLM RMPs provide adequate landscape-scale conservation for the northern spotted owl while allowing for relatively small areas of critical habitat to be harvested over time. Exclusion of all the O&C lands (including currently allocated to reserves) and all the USFS matrix lands could enable subsequent land management plan changes that would support habitat removal in areas that are essential to the conservation of the northern spotted owl. Exclusion of these O&C lands and USFS matrix lands E:\FR\FM\10NOR2.SGM 10NOR2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 would not only preclude the recovery of the northern spotted owl (as we determined in 2012), but given the most recent and best available information we also find it would result in the subspecies’ extinction. Given that northern spotted owls are long-lived and widely dispersed over a large, geographic range, extinction would not be immediate but would result if these lands were excluded. State Lands We also evaluated whether additional exclusions from the critical habitat designation under section 4(b)(2) of the Act should be considered on State lands. In our December 4, 2012, critical habitat designation (77 FR 71876), we excluded State lands in Washington and California that were covered by HCPs and other conservation plans. In Oregon, State agencies are currently working on HCPs that will address State forest lands in western Oregon, including the Elliott State Forest (managed by the Oregon Department of State Lands) and other State forest lands in western Oregon (managed by the Oregon Department of Forestry). Habitat conservation plans in support of applications for incidental take permits under section 10(a)(1)(B) of the Act must be consistent with the longterm recovery needs of the species. When we undertake a discretionary section 4(b)(2) exclusion analysis, we consider areas covered by an HCP that have been authorized by a permit under section 10 of the Act, and generally exclude such areas from a designation of critical habitat if three conditions are met: (1) Whether the permittee is properly implementing the conservation plan or agreement;; (2) whether the species for which critical habitat is being designated is a covered species in the conservation plan or agreement; and (3) whether the conservation plan or agreement specifically addresses the habitat of the species for which critical habitat is being designated and meets the conservation needs of the species in the planning area. The proposed State forest HCPs and any section 10 permitting decisions by the Service will not be completed prior to the publication of this document; thus, we are not able to assess all of the above criteria. As a result, we are not excluding additional State lands from the critical habitat designation for the northern spotted owl. Available Conservation Measures In publishing final rules to carry out the purposes of the Act, we include a description of any conservation measures available under the rule. As VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 this rule is a revision to critical habitat excluding certain areas from that designation, there are no particular conservation measures specifically available under this rule. Rather, the conservation measures already in place and available to the entities managing the excluded lands (the BLM, the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians, and the Cow Creek Band of Umpqua Tribe of Indians) remain available and unaffected by this rule. Determinations of Adverse Effects and Application of the ‘‘Adverse Modification’’ Standard In publishing final rules to revise critical habitat, we are, to the maximum extent practicable, required to include a brief description and evaluation of those activities (whether public or private) that might occur in the area, and which, in the opinion of the Secretary, may adversely modify such habitat or be affected by such designation. As this revision to critical habitat is exclusions from critical habitat, the exclusions will, by definition, eliminate the requirement for consideration of adverse modification of the excluded habitat. Our discussion in the 2012 critical habitat rule (77 FR 71876; pp. 71938– 71944) still adequately addresses actions that may adversely modify critical habitat or be affected by the areas of critical habitat that remain designated. Required Determinations 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 identified this rulemaking action as 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 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 62657 exchange of ideas. We have developed this rule in a manner consistent with these requirements. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine 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 the 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 E:\FR\FM\10NOR2.SGM 10NOR2 62658 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations 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 by this revised critical habitat designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that the revised critical habitat designation will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis is not required. khammond on DSKJM1Z7X2PROD with RULES2 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 FEA for the December 4, 2012, revised critical habitat designation for the northern spotted owl (77 FR 71876), we did not find that the critical habitat designation would significantly affect energy supplies, distribution, or use. Any administrative costs due to the designation of critical habitat would be reduced because we are excluding additional lands from the designation in this final rule. 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 final rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both ‘‘Federal intergovernmental mandates’’ and ‘‘Federal private sector mandates.’’ VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 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 revised 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 because we are only excluding areas from the northern PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 spotted owl’s critical habitat designation; we are not designating additional lands as critical habitat for the subspecies. 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 northern spotted owl 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 revised designation of critical habitat for northern spotted owl, 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 final 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 revised 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 States and local governments, or for anyone else. As a result, this final 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 E:\FR\FM\10NOR2.SGM 10NOR2 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations levels of government. As noted above, the decision set forth in this document removes areas from the designation. Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation with the Federal agency 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. Further, in this document, we are excluding areas from the northern spotted owl’s critical habitat designation; we are not designating additional lands as critical habitat for the subspecies. 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 are revising critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the northern spotted owl, the December 4, 2012, final rule (77 FR 71876) identifies the elements of physical or biological features essential to the conservation of the subspecies, and we are not proposing any changes to those elements in this document. The areas we are excluding from the designated critical habitat are described in this rule and the maps and coordinates or plot points or both of the subject areas are included in the administrative record and are available at https://www.fws.gov/oregonfwo and at https://www.regulations.gov under Docket No. FWS–R1–ES–2020–0050. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et. Seq.) khammond on DSKJM1Z7X2PROD with RULES2 This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 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 (see Catron Cty. Bd. of Comm’rs, New Mexico v. U.S. Fish & Wildlife Serv., 75 F.3d 1429 (10th Cir. 1996), we do not need to prepare environmental analyses pursuant to 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 in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995). 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 Indian lands are not subject to the same controls as Federal public lands, to remain sensitive to Tribal culture, and to make information available to Tribes. To fulfill our responsibility under Secretarial Order 3206, we have consulted with the Cow Creek Band of Umpqua Tribe of Indians and the Confederated Tribes of Coos, Lower PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 62659 Umpqua, and Siuslaw Indians, which both manage Indian land within the areas designated as critical habitat for the northern spotted owl. 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 Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this final rule are the staff members of the Oregon Fish and Wildlife Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Regulation Promulgation Accordingly, for the reasons discussed above in the preamble, we hereby 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. Revise the authority citation to part 17 to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 1531– 1544; and 4201–4245, unless otherwise noted. 2. In § 17.95(b), amend the entry for ‘‘Northern Spotted Owl (Strix occidentalis caurina)’’ by revising paragraph (7), the second map in paragraph (9), and paragraphs (10), (14), (16), (17), and (18) to read as follows: ■ § 17.95 Critical habitat—fish and wildlife. * * * * * (b) Birds. * * * * * Northern Spotted Owl (Strix occidentalis caurina) * * * * * (7) Note: Index map of critical habitat units for the northern spotted owl in the State of Oregon follows: Figure 2 to Northern Spotted Owl (Strix occidentalis caurina) paragraph (7) E:\FR\FM\10NOR2.SGM 10NOR2 62660 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations Critical Habitat for Northern Spotted Owl (Strix occidentalis caurina) Units 1-3, 6-10, Oregon WASltlNGiON ..,...l~---t-UNIT 8 LAKE ----, KLAMATH CALIFORNIA -125'50'0" -125'0'0" -122'30'0" -120'50'0" -120'0'0" . . . Critical Habitat c:J Unit Boundary • * * * * * (9) Unit 1: North Coast Ranges and Olympic Peninsula, Oregon and 0 150 Kilometers 0 100Miles Washington. Maps of Unit 1: North City County Coast Ranges and Olympic Peninsula, Oregon and Washington, follow: * * * * * VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\10NOR2.SGM 10NOR2 ER10NO21.000</GPH> khammond on DSKJM1Z7X2PROD with RULES2 BILLING CODE 4333–15–P Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations 62661 Figure 5 to Northern Spotted Owl (Strix occidentalis caurina) paragraph (9) Critical Habitat for Northern Spotted Owl (Strix occidentalis caurina) Unit 1: North Coast Ranges and Olympic Peninsula, Subunits NCO 4 • NCO 5, Oregon COLUMBIA t ... ll, • .~ llt.i.AMOOK ~t' d_ __ I '{; -124"35'0" -124°10'0" -123"45'0" -122"'55'0" rllf#I Critical Habitat "v Subunit Boundary ■ 50 Kilometers 0 County 30Miles 0 (10) Unit 2: Oregon Coast Ranges, Oregon. Map of Unit 2, Oregon Coast Ranges, Oregon, follows: VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\10NOR2.SGM 10NOR2 ER10NO21.001</GPH> khammond on DSKJM1Z7X2PROD with RULES2 City 62662 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations Figure 6 to Northern Spotted Owl (Strix occidentalis caurina) paragraph (10) Critical Habitat for Northern Spotted Owl (Strix occidentalis caurina) Unit 2: Oregon Coast Ranges, Subunits OCR 1 - OCR 6, Oregon ·124"35'0' .124•10·0· -123•45•0· -123•20·0· -122"30'0' . , . Critical Habitat "'v Subunit Boundary • * * VerDate Sep<11>2014 * * 16:42 Nov 09, 2021 70 KIiometers 0 SO Miles City County (14) Unit 6: West Cascades South, Oregon. Map of Unit 6, West Cascades South, Oregon, follows: Jkt 256001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\10NOR2.SGM 10NOR2 ER10NO21.002</GPH> khammond on DSKJM1Z7X2PROD with RULES2 * 0 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations 62663 Figure 10 to Northern Spotted Owl (Strix occidentalis caurina) paragraph (14) Critical Habitat for Northern Spotted Owl (Strix occidentalis caurina) Unit 6: West Cascades South, Subunits WCS 1 - WCS 6, Oregon -123°45'0" -123"20'0" -122°55'0" -122"30'0" -122"5'0" -121°40'0" -121"15'0" -120"50'0" . , . Critical Habitat r-v Subunit Boundary ■ 0 100 KIiometers * VerDate Sep<11>2014 * * 16:42 Nov 09, 2021 (16) Unit 8: East Cascades South, California and Oregon. Map of Unit 8, Jkt 256001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 East Cascades South, California and Oregon, follows: E:\FR\FM\10NOR2.SGM 10NOR2 ER10NO21.003</GPH> khammond on DSKJM1Z7X2PROD with RULES2 * County 70Miles 0 * City 62664 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations Figure 13 to Northern Spotted Owl (Strix occidentalis caurina) paragraph (16) Critical Habitat for Northern Spotted Owl (Strix occidentalis caurina) Unit 8: East Cascades South, Subunits ECS 1 - ECS 3, California and Oregon LAKI::: ,,. ~ r ~ ... l. ,!•" it. ~~- !:> ~ • ECS2 9"#y ~ • .-: r MODOC ECS3 ' • ~ ;;: TRINITY lASSfN -122~55,o• -122•5•0• -122"30'0" -121·40'0' ♦ 0 rllflll Critical Habitat ~ Subunit Boundary ■ 60 Kilometers City County 40Mlles (17) Unit 9: Klamath West, Oregon and California. Map of Unit 9: Klamath West, Oregon and California, follows: VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\10NOR2.SGM 10NOR2 ER10NO21.004</GPH> khammond on DSKJM1Z7X2PROD with RULES2 0 •121'15'0" Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations 62665 Figure 14 to Northern Spotted Owl (Strix occidentalis caurina) paragraph Critical Habitat for Northern Spotted Owl (Strix occidentalis caurina) Unit 9: Klamath West, Subunits KLW 1 - KLW 9, Oregon and California -12s•o·o• -124°35'0" -124•10•0" -123°20'0• -123°45'0" ♦ 0 ~122"30'0" -122°5'0" . , . Critical Habitat "v Subunit Boundary ■ 90 Kilometers City County 60Mileir 0 (18) Unit 10: Klamath East, California and Oregon. Map of Unit 10: Klamath East, California and Oregon, follows: VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\10NOR2.SGM 10NOR2 ER10NO21.005</GPH> khammond on DSKJM1Z7X2PROD with RULES2 -122°55'0" 62666 Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations Figure 15 to Northern Spotted Owl (Strix occidentalis caurina) paragraph Critical Habitat for Northern Spotted Owl (Strix occidentalis caurina) Unit 10: Klamath East, Subunits KLE 1 - KLE 7, Oregon and California coos ., KlAMATH -1·23a4SIQ* ·122'55'0· -123"'20'0* -122"30'0" ♦ 0 * * 60 KIiometers • City County * Martha Williams, Principal Deputy Direcctor, Exercising the Delegated Authority of the Director. [FR Doc. 2021–24365 Filed 11–9–21; 8:45 am] BILLING CODE 4333–15–C VerDate Sep<11>2014 16:42 Nov 09, 2021 Jkt 256001 PO 00000 Frm 00062 Fmt 4701 Sfmt 9990 E:\FR\FM\10NOR2.SGM 10NOR2 ER10NO21.006</GPH> khammond on DSKJM1Z7X2PROD with RULES2 * rll#I Critical Habitat "v Subunit Boundary 40Miles 0 * -122'5'0"

Agencies

[Federal Register Volume 86, Number 215 (Wednesday, November 10, 2021)]
[Rules and Regulations]
[Pages 62606-62666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24365]



[[Page 62605]]

Vol. 86

Wednesday,

No. 215

November 10, 2021

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Revised Designation of 
Critical Habitat for the Northern Spotted Owl; Final Rule

Federal Register / Vol. 86 , No. 215 / Wednesday, November 10, 2021 / 
Rules and Regulations

[[Page 62606]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2020-0050; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BF01


Endangered and Threatened Wildlife and Plants; Revised 
Designation of Critical Habitat for the Northern Spotted Owl

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; withdrawal and revision.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), revise the 
designation of critical habitat for the northern spotted owl (Strix 
occidentalis caurina) under the Endangered Species Act of 1973, as 
amended (ESA or Act), by withdrawing the January 15, 2021, final rule 
that would have been effective December 15, 2021, and which would have 
excluded approximately 3.4 million acres (1.4 million hectares) of 
designated critical habitat for the northern spotted owl (January 
Exclusions Rule); and instead as we proposed on July 20, 2021, we now 
exclude approximately 204,294 acres (82,675 hectares) in Benton, 
Clackamas, Coos, Curry, Douglas, Jackson, Josephine, Klamath, Lane, 
Lincoln, Multnomah, Polk, Tillamook, Washington, and Yamhill Counties, 
Oregon, under section 4(b)(2) of the Act.

DATES: As of November 10, 2021, FWS is withdrawing the final rule 
published January 15, 2021, at 86 FR 4820, delayed on March 1, 2021, at 
86 FR 11892, and further delayed on April 30, 2021 at 86 FR 22876. This 
rule is effective December 10, 2021.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov under Docket No. FWS-R1-ES-2020-0050 and at https://www.fws.gov/oregonfwo.
     Comments and materials we received, as well as supporting 
documentation we used in preparing this rule, are available for public 
inspection at https://www.regulations.gov under Docket No. FWS-R1-ES-
2020-0050.
     The coordinates from which the Service generated the maps 
are included in the decision file for the rulemaking and are available 
at https://www.regulations.gov at Docket No. FWS-R1-ES-2020-0050 and at 
https://www.fws.gov/oregonfwo.
     The Geographic Information System data reflecting the 
revised critical habitat units can be downloaded at https://ecos.fws.gov/ecp/species/1123#crithab under the heading Critical 
Habitat Spatial Extents.

FOR FURTHER INFORMATION CONTACT: Paul Henson, Ph.D., State Supervisor, 
U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 
SE 98th Avenue, Portland, OR 97266; telephone 503-231-6179. Persons who 
use a telecommunications device for the deaf (TDD) may call the Federal 
Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. We need to publish a rule in order 
to exclude areas from northern spotted owl designated critical habitat 
under section 4(b)(2) of the Act.
    What this rule does. This rule revises the designation of critical 
habitat for the northern spotted owl by withdrawing the exclusion of 
approximately 3.4 million acres as set forth in the January Exclusions 
Rule, and excluding instead approximately 204,294 acres (82,675 
hectares).
    Basis for this rule. Under section 4(b)(2) of the Act, 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. This revision to critical habitat excludes 204,294 acres 
(82,675 hectares) in Benton, Clackamas, Coos, Curry, Douglas, Jackson, 
Josephine, Klamath, Lane, Lincoln, Multnomah, Polk, Tillamook, 
Washington, and Yamhill Counties, Oregon, under section 4(b)(2) of the 
Act.
    The Service is excluding lands that are within the Harvest Land 
Base land-use allocation described by the U.S. Department of the 
Interior Bureau of Land Management (BLM) in two recently revised 
resource management plans (RMPs) for areas it manages in Oregon: The 
Northwestern Oregon and Coastal Oregon Record of Decision and Resource 
Management Plan (BLM 2016a) and the Southwestern Oregon Record of 
Decision and Resource Management Plan (BLM 2016b). The BLM consulted 
with the Service on the effects of those RMPs, and in our resulting 
Biological Opinion, we found the BLM's proposed harvest over time of 
those areas allocated to the Harvest Land Base would not result in 
destruction or adverse modification of northern spotted owl critical 
habitat (FWS 2016, pp. 626-703). We are also excluding lands that were 
previously managed by the BLM under the RMPs but were subsequently 
transferred in trust to certain Indian Tribes pursuant to Federal 
legislation.

Previous Federal Actions

    On December 4, 2012, we published in the Federal Register (77 FR 
71876) a final rule designating revised critical habitat for the 
northern spotted owl. For additional information on previous Federal 
actions concerning the northern spotted owl, refer to that December 4, 
2012, final rule.
    In 2013, the December 4, 2012, revised critical habitat designation 
was challenged in court in Carpenters Industrial Council et al. v. 
Bernhardt et al., No. 13-361-RJL (D.D.C) (now retitled Pacific 
Northwest Regional Council of Carpenters et al. v. Bernhardt et al. 
with the substitution of named parties). In 2015, the district court 
ruled that the plaintiffs lacked standing. The D.C. Circuit Court of 
Appeals reversed and remanded, and the case remained pending before the 
district court.
    On April 13, 2020, we entered into a stipulated settlement 
agreement resolving the litigation. The settlement agreement was 
approved and ordered by the court on April 26, 2020, and the case 
dismissed. Under the terms of the settlement agreement, the Service 
agreed to submit a proposed revised critical habitat rule to the 
Federal Register that identified proposed exclusions under section 
4(b)(2) of the Act by July 15, 2020, and to submit to the Federal 
Register a final revised critical habitat rule on or before December 
23, 2020, or withdraw the proposed rule by that date if we determined 
not to exclude any areas from the designation under section 4(b)(2) of 
the Act. We delivered a proposed rule to the Federal Register on July 
15, 2020, which was published on August 11, 2020 (85 FR 48487), 
proposing to exclude 204,653 acres (82,820 hectares) within 15 counties 
in Oregon under section 4(b)(2) of the Act. We opened a 60-day comment 
period on the August 11, 2020, proposed rule, which closed on October 
13, 2020. On January 15, 2021, we published in the Federal Register the 
January Exclusions Rule (86 FR 4820), excluding approximately 3,472,064 
acres (1,405,094 hectares) within 45 counties in Washington, Oregon, 
and California under section 4(b)(2) of the Act. Our August 11, 2020, 
proposed rule (85 FR 48487) and the January Exclusions Rule met the 
stipulations of the settlement agreement.

[[Page 62607]]

    The initial effective date of the January Exclusions Rule was March 
16, 2021. On March 1, 2021, we extended the effective date of the 
January Exclusions Rule to April 30, 2021 (86 FR 11892). At that time, 
we also opened a 30-day comment period, inviting comments on the impact 
of the delay of the effective date of the January Exclusions Rule, as 
well as comments on issues of fact, law, and policy raised by that 
final rule. After considering comments received in response to our 
March 1, 2021, final rule delaying the effective date, on April 30, 
2021, we again extended the effective date of the January Exclusions 
Rule to December 15, 2021 (86 FR 22876).
    On July 20, 2021, we published in the Federal Register a proposed 
revised critical habitat rule in which we proposed to withdraw the 
January Exclusions Rule, and to exclude 204,797 acres (82,879 hectares) 
within 15 counties in Oregon (86 FR 38246). The lands proposed for 
exclusion are the same lands we proposed for exclusion on August 11, 
2020, with minor corrections in the number of acres.
    For the convenience of the reader, the list below provides some 
Federal Register citations of prior rulemaking documents pertaining to 
the northern spotted owl. This list is not a comprehensive list of all 
pertinent prior rulemaking documents; instead, it contains only those 
documents that are referenced frequently in this final rule:

 Final rule to revise the designation of critical habitat: 
December 4, 2012, 77 FR 71876
 Proposed rule to revise the designation of critical habitat: 
August 11, 2020, 85 FR 48487
 Final rule to revise the designation of critical habitat: 
January 15, 2021, 86 FR 4820 (January Exclusions Rule)
 Final rule to delay the effective date of the January 
Exclusions Rule and to request comments: March 1, 2021, 86 FR 11892
 Final rule to further delay the effective date of the January 
Exclusions Rule: April 30, 2021, 86 FR 22876
 Proposed rule to revise the designation of critical habitat: 
July 20, 2021, 86 FR 38246

Summary of Factors Affecting the Northern Spotted Owl

    Habitat loss was the primary factor leading to the listing of the 
northern spotted owl as a threatened subspecies in 1990 (55 FR 16114, 
June 26, 1990), and it continues to be a stressor on the subspecies due 
to the lag effects of past habitat loss, continued timber harvest, 
wildfire, and a minor amount from insect and forest disease outbreaks. 
The most recent rangewide northern spotted owl demographic study 
(Franklin et al. 2021, entire) found that nonnative barred owls are 
currently the stressor with the largest negative impact on northern 
spotted owls through competition for resources. The study emphasized 
the importance of addressing barred owl management and also the 
importance of maintaining habitat across the range of the northern 
spotted owl regardless of occupancy to provide areas for recolonization 
and dispersal (Franklin et al. 2021, p. 18). The study also found a 
significant rate of population decline in northern spotted owls, a rate 
of 6 to 9 percent annually on 6 demographic study areas, and 2 to 5 
percent annually on 5 study areas. Populations dropped to or below 35 
percent of historical population numbers on 7 of the study areas, and 
to or below 50 percent on the remaining 3 areas over a 22-year period 
(1995-2017).
    On non-Federal lands, State regulatory mechanisms have not 
prevented the continued decline of nesting, roosting and foraging 
habitat of the northern spotted owl; the amount of northern spotted owl 
habitat on these lands has decreased considerably over the past two 
decades, including in geographic areas where Federal lands are lacking. 
On Federal lands, the Northwest Forest Plan has reduced habitat loss 
and allowed for the regrowth of northern spotted owl habitat; however, 
the combined effects of climate change, high-severity wildfire, and 
past management practices are changing forest ecosystem processes and 
dynamics.

Summary of Comments and Recommendations

    In our July 20, 2021, proposed rule (86 FR 38246), we requested 
that all interested parties submit written comments by September 20, 
2021. We also contacted appropriate Federal, State, and local agencies, 
and other interested parties and invited them to comment on the 
proposed rule. A newspaper notice inviting general public comment was 
published in The Oregonian on July 25, 2021, in the Eureka Times-
Standard on July 30, 2021, and in The Olympian on August 6, 2021. We 
did not receive any requests for a public hearing. We noted in the 
proposed rule that comments previously submitted in response to our 
August 11, 2020, proposed revision to critical habitat for the northern 
spotted owl (85 FR 48487) did not need to be resubmitted, as we would 
consider them in producing this final rule. We also noted that parties 
who wanted comments they submitted in response to our March 1, 2021, 
rule extending the effective date of the January Exclusions Rule 
considered in this final rule should resubmit their comments.
    During the comment period, we received 48 new public comment 
submissions addressing the proposed withdrawal of the January 
Exclusions Rule and revised critical habitat designation, in addition 
to the 572 public comments submitted in response to our original August 
11, 2020 proposal to exclude approximately 204,653 acres (82,820 
hectares). In addition, one commenter resubmitted their comments in 
response to our March 1, 2021, rule. Among the submissions on the July 
20, 2021, proposed rule were letters from organizations signed by 
thousands of individuals expressing general support for our proposed 
rule. Many comments were nonsubstantive in nature, expressing either 
general support for or opposition to our proposal to withdraw the 
January Exclusions Rule and exclude 204,797 acres (82,879 hectares), 
with no supporting information or analysis, or expressing opinions 
regarding topics not covered within the proposed revised critical 
habitat rule. We also received many detailed substantive comments with 
specific rationale for support of or opposition to specific portions of 
the proposed revised rule.
    Below, we summarize and respond to: The substantive comments on the 
July 20, 2021, proposed rule that were received by the September 20, 
2021, deadline; substantive comments we received in response to the 
August 11, 2020, proposed rule; and resubmitted comments in response to 
our March 1, 2021, rule. Additionally, we provide explanations when our 
responses to comments received on our August 11, 2020, proposed rule 
differ substantially from responses we provided to those same comments 
in the January Exclusions Rule. Comments received were grouped into 
general categories and are addressed in the following summary.

Comments on the Withdrawal of the January Exclusions Rule

    In order to facilitate the ability to cross-reference our previous 
responses to comments in the January Exclusions Rule, new and 
resubmitted comments received by September 21, 2021, on the proposed 
withdrawal of the January Exclusions Rule and the March 1, 2021, rule 
delaying the effective date of the January Exclusions Rule until April 
30, 2021, are identified alphabetically; comments received on the 
proposed exclusions and other issues received in

[[Page 62608]]

response to both the August 11, 2020, proposed rule and new comments 
received for the July 20, 2021, proposed rule are identified 
numerically and follow the same relevant grouping of issues as in the 
January Exclusions Rule. We did not receive comments concerning the 
proposed withdrawal of the January Exclusions Rule from Federal 
agencies, the States, or Tribes.

Comments From Counties

    Jackson County (Oregon) submitted a comment letter expressing their 
support and concurrence with the comment letter submitted by the 
Association of O&C Counties (AOCC); see Comment (B) for a summary of 
those comments.
    Douglas County (Oregon) submitted a comment letter incorporating 
the American Forest Resource Council (AFRC)'s September 20, 2021, 
comment letter by reference and provided additional comments urging the 
Service not to rescind the January Exclusions Rule. Issues raised by 
Douglas County are incorporated and grouped with similar comments 
within this rule.
    Harney County (Oregon) submitted a comment letter urging the 
Service not to rescind the January Exclusions Rule. Issues raised by 
Harney County are incorporated and grouped with similar comments within 
this rule.
    Lewis and Skamania Counties (Washington) submitted a comment letter 
incorporating the September 20, 2021, comment letter of the AFRC by 
reference and provided other comments that are incorporated and grouped 
with similar comments within this rule.
    Klickitat County (Washington) submitted a comment letter 
incorporating Lewis and Skamania Counties' comment letter by reference 
and provided other comments that are incorporated and grouped with 
similar comments within this rule.

Public Comments

    Comment (A): Commenters that opposed any exclusions from critical 
habitat stated that retaining and expanding critical habitat and 
conserving mature forests will provide significant economic benefits to 
communities by providing ecosystem services such as: Clean water, 
climate stability, fire resilience, fish and wildlife, recreation, and 
other services that serve as a stabilizing force for community 
development.
    Our response: While the designation of critical habitat for the 
northern spotted owl does not, in and of itself, change the land-use 
allocation for the areas designated (which is ultimately the decision 
of the entity managing the land, such as the BLM), we agree that in 
addition to its benefits for the northern spotted owl, conserving 
mature forests may provide economic benefits to communities through the 
ecosystem services described by the commenter. Although the final 
economic analysis (FEA) of the critical habitat designation for the 
northern spotted owl (IEc 2012) did not quantify these economic 
benefits, it qualitatively described the ancillary benefits of 
conservation measures that may be implemented to avoid the destruction 
or adverse modification of critical habitat. These benefits include 
public safety benefits, such as timber management practices that reduce 
the threat of catastrophic wildfire, drought, and insect damage; 
improved water quality that may reduce water treatment costs and 
provide human or ecological health benefits; aesthetic benefits of a 
more natural forest landscape that results in increased recreational 
use or increases the value of neighboring properties; and carbon 
storage that may ameliorate the impacts of climate change.
    Comment (B): The AOCC, representing the interests of counties in 
western Oregon, as well as other commenters, submitted comments 
opposing the withdrawal of the January Exclusions Rule, citing the 
following rationales:
    (i): The AOCC and others commented that the 2012 critical habitat 
designation negatively impacted the ability of BLM to manage certain 
former railroad grant lands in Oregon revested to the United States in 
1916 (O&C lands) for their statutory purposes under the Oregon and 
California Revested Lands Sustained Yield Management Act of 1937, 
Public Law 75-405 (O&C Act) and reduced timber harvest and associated 
receipts shared with counties. They asserted that the 2012 designation 
caused BLM to manage these lands under their revised RMPs for the 
benefit of the northern spotted owl instead.
    Our response: The BLM developed its 2016 RMPs considering a variety 
of authorities and requirements, including the O&C Act, which addresses 
the management of O&C lands revested to the Federal Government under 
the Chamberlin-Ferris Act of 1916 (39 Stat. 218) and other authorities. 
As discussed further in response to Comment 12, we acknowledge that 
there is ongoing litigation regarding BLM's authorities and obligations 
under the O&C Act and the Endangered Species Act. Once that litigation 
is finally resolved, BLM will have to determine what, if any, changes 
to make to its management of the O&C lands under applicable law. Until 
that time, however, the BLM will, where appropriate, utilize its 
authorities in furtherance of the purposes of the Endangered Species 
Act. See also our response to Comment (6). See our response to Comments 
(21) and (22) for a discussion on the economic impacts of the 
designation on timber harvest.
    (ii): The AOCC commented that the designation of critical habitat 
on O&C lands is contrary to recent rulings that recognize the statutory 
requirement that timber on O&C lands is to be ``sold, cut and removed'' 
according to sustained yield principles and cannot be allocated to 
reserves, and that section 7 consultation requirements under the Act do 
not apply to the nondiscretionary obligation of BLM to manage these 
lands under the principles of sustained yield.
    Our response: See our responses to Comments (6), (12), and (25b) 
below.
    (iii): The AOCC commented that the 2012 critical habitat 
designation was flawed in that it did not identify or ``actually'' map 
habitat and that the methods used resulted in vast areas being 
designated as critical habitat that do not currently have the 
attributes of northern spotted owl habitat and therefore do not meet 
the statutory requirements for designation as critical habitat.
    Our response: This and similar comments that directly address 
concerns about our final rule designating critical habitat in 2012 were 
raised and addressed in the rulemaking for the 2012 rule, and we refer 
to our responses to such issues in that rulemaking, see e.g., Public 
Comments on the Modeling Process at 77 FR 71876, December 4, 2012; p. 
72020. We address here only those comments relevant to the revisions 
proposed in July 20, 2021.
    (iv): The AOCC commented that the designation of critical habitat 
in 2012 created preserves that prevent sustained yield management and 
that actively managing critical habitat to support species recovery is 
not the equivalent of sustained yield management under the O&C Act, 
further citing the court ruling in Headwaters, Inc. v. BLM, Medford 
Dist., 914 F.2d 1174 (9th Cir. 1990) holding that withdrawing lands 
from sustained yield timber production for the benefit of wildlife is 
not a use recognized in the O&C Act and is inconsistent with sustained 
yield management. On this basis, the commenter seeks additional 
exclusions from the designated critical habitat.
    Our response: Critical habitat designations do not establish 
specific land-management standards or prescriptions, nor do 
designations affect land ownership or establish a refuge, wilderness, 
reserve, preserve, sanctuary, or any other conservation area where no 
active land management occurs. See our

[[Page 62609]]

responses to Comments (6), (12), and (25b) below.
    (v): The AOCC commented that ``creative sustained yield 
management'' can contribute substantially to the habitat needs of the 
northern spotted owl without the limitations imposed by a critical 
habitat designation and that sustained yield management to meet both 
the subspecies' needs and the O&C Act requirements has not been 
considered in BLM and U.S. Department of Agriculture, Forest Service 
(USFS) management plans, northern spotted owl recovery plans, and 
critical habitat designations. They provided examples of sustained 
yield strategies that could be considered should the BLM be required to 
revise their RMPs due to a pending court ruling and suggested that 
removing critical habitat is a necessary first step.
    Our response: As indicated by the comment, complying with and 
achieving the goals of the O&C Act and the Endangered Species Act can 
be an extraordinarily complicated task in the forest management arena. 
The BLM and USFS are responsible for managing O& C lands, and they do 
so by adopting land management plans that provide guidance and 
direction for subsequent management actions on those lands. Recovery 
plans under the Endangered Species Act provide recommendations for 
management actions that meet the recovery needs of listed species; they 
are not intended to guide compliance with other statutory requirements. 
Critical habitat designations, similarly, are focused on the needs of 
the species but take economic and other impacts into consideration.
    The Service expressly considered the role of the O&C lands when 
revising critical habitat in 2012, but did not consider excluding them 
at that time because we concluded they were essential to the 
conservation of the subspecies (77 FR 71876, December 4, 2012; p. 
72007).
    We expressly consider in this rule excluding the O&C lands (outside 
of the BLM's Harvest Land Base lands) from the designation based on 
requests from the commenter and others, but for the reasons discussed 
in our weighing analysis, have determined not to do so (see 
Consideration of Impacts Under Section 4(b)(2) of the Act).
    We note, however, that the BLM and USFS have proposed harvests from 
O&C lands within designated critical habitat, consulting with the 
Service on those actions. To date, we have reviewed such proposals on 
thousands of acres and have not found that the proposals result in the 
destruction or adverse modification of that habitat under the Act.
    The critical habitat designation benefits the northern spotted owl 
as a landscape-scale conservation strategy that identifies areas on the 
landscape that may require special management considerations or 
protection. In addition, the designation informs management practices 
that contribute to the recovery needs of the subspecies. In both the 
critical habitat designation, and in site-specific consultations, the 
Service has supported active forest management, where appropriate, to 
provide for some timber harvest while also conserving habitat for the 
northern spotted owl and reducing the risk of wildfire.
    (vi): The AOCC commented that all O&C lands should be excluded from 
the critical habitat designation because the benefits of exclusion 
outweigh the costs and that there is no benefit to including these 
lands in the designation because the O&C Act ``mandates for sustained 
yield production control over the ESA section 7(a)(2) consultation.'' 
Additionally, they commented that the designation has had significant 
adverse economic impacts on the counties, affecting their ability to 
provide public services and has resulted in mill closures and job 
losses.
    Our response: As described elsewhere in this document, some timber 
harvest does occur within critical habitat, and total annual timber 
harvest levels on Federal lands in the range of the northern spotted 
owl have actually increased since the revision of critical habitat in 
2012; see our response to Comments (21b and 25a). See also our 
responses to Comments (6 and 25) concerning O&C lands and our weighing 
of the benefits of including O&C lands in the critical habitat 
designation versus excluding them in Consideration of Impacts Under 
Section 4(b)(2) of the Act.
    (vii): The AOCC commented that the economic impact of the critical 
habitat designation has not been properly evaluated by the Service and 
that these impacts are not solely attributable to the listing decision.
    Our response: See our response to Comment (20) below concerning our 
review of the FEA (IEc 2012) and our regulation on how economic 
analyses are conducted.
    Comment (C): The AFRC submitted comments in support of the January 
Exclusions Rule and expressed support for the Service's proposal to 
exclude the BLM's Harvest Land Base lands and lands transferred in 
trust to the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw 
Indians (CTCLUSI) and the Cow Creek Band of Umpqua Tribe of Indians 
(CCBUTI). The AFRC resubmitted comments they previously provided on our 
2007, 2008, and 2012 critical habitat rules. We previously responded to 
those comments in our final respective critical habitat rules; see 73 
FR 47326, August 13, 2008, and 77 FR 71876, December 4, 2012. The 
AFRC's comments on our August 11, 2020, proposed rule (85 FR 48487), 
our March 1, 2021, rule delaying the effective date of the January 
Exclusions Rule (86 FR 11892), and our July 20, 2021, proposed rule (86 
FR 38246) are summarized below. Comments submitted by AFRC that were 
similar to comments received on the August 11, 2020, proposed rule have 
been incorporated into the comment sections following this section. 
Several counties incorporated AFRC's comments by reference. In some 
instances, other commenters submitted comments similar to the comments 
submitted by AFRC; we include those comments in the following 
summarized comments.
    (i): The AFRC commented that the August 11, 2020, proposed revised 
critical habitat rule gave notice to the public that additional areas 
may be excluded in the final rule and that the Service (and Secretary) 
preserved broad discretion to make additional exclusions such that 
there was no ``logical outgrowth'' problem in the change from the 
proposed to final exclusions in the January Exclusions Rule.
    Our response: We requested comments in our August 11, 2020, 
proposed rule on the following: Additional areas, including Federal 
lands and specifically National Forest System lands, that should be 
considered for exclusion under section 4(b)(2) of the Act and any 
probable economic, national security, or other relevant impacts of 
excluding those areas. We also requested comments on any significant 
new information or analysis concerning economic impacts that we should 
consider in the balancing of the benefits of inclusion versus the 
benefits of exclusion in the final determination.
    While our request indicated that we might consider additional 
exclusions, the scale of the final exclusions was much larger and 
broader than what the public could reasonably anticipate. In our 
proposed rule, we identified 204,653 acres (82,675 hectares) across 15 
counties and 26 critical habitat subunits in Oregon for potential 
exclusion; the January Exclusions Rule increased the acres excluded by 
nearly 17-fold. The final rule included extensive areas that were not 
mentioned in the proposed rule, and for which no

[[Page 62610]]

details were provided in the January Exclusions Rule, within the States 
of Washington and California, 45 counties across the range, and 55 
critical habitat subunits across the designation.
    In response to our March 1, 2021, rule delaying the effective date 
of the January Exclusions Rule, we received many comments that the 
January Exclusions Rule was not a logical outgrowth of the August 11, 
2020, proposed rule, including comments from natural resource agencies 
in Washington and California opposing the exclusions and expressing 
that they were not aware that exclusions were being considered in their 
respective States. Additionally, the Washington Department of Fish and 
Wildlife comments expressed surprise at the 765,175 acres (309,655 
hectares) excluded in their State under the January Exclusions Rule. 
Further, the California Department of Fish and Wildlife commented in 
response to the March 1, 2021, rule that the January Exclusions Rule 
did not identify lands excluded in their State with enough specificity 
to provide a meaningful analysis and comment. Conservation groups and 
other members of the public commented in response to the March 1, 2021, 
rule that they were not given the opportunity to present arguments and 
facts contrary to the vast increase in exclusions as presented in the 
January Exclusions Rule.
    Additionally, the January Exclusions Rule also included new 
rationales for the exclusions that were not identified in the August 
11, 2020, proposed revised critical habitat rule (85 FR 48487). These 
included generalized assumptions about the economic impact of both the 
listing of the northern spotted owl and the subsequent designation of 
areas as critical habitat; the stability of local economies and 
protection of the local custom and culture of counties; the presumption 
that exclusions would increase timber harvest and result in longer 
cycles between harvest; that timber harvest designs resulting from the 
exclusions would benefit the northern spotted owl, and that the 
increased harvest would reduce the risk of wildfire; and that northern 
spotted owls may use areas that have been harvested if some forest 
structure was retained. The public did not have an opportunity to 
review or comment on these new rationales.
    Further, the January Exclusions Rule failed to reconcile a change 
in our prior findings regarding areas managed under the O&C Act. In our 
2012 rule revising the critical habitat designation for the owl, we 
found that areas managed under the O&C Act were essential to the 
conservation of the subspecies and that not including some of these 
lands in the critical habitat network resulted in a significant 
increase in the risk of extinction. Commenters stated that the 
exclusion of these lands in the January Exclusions Rule also conflicted 
with our December 15, 2020, finding that the northern spotted owl 
warrants reclassification to endangered status given the exacerbation 
of the threats it faces. We maintain that the public should have had an 
opportunity to comment on the expanded critical habitat exclusions made 
in January in light of the information included in the December 15, 
2020, finding and supporting species report (85 FR 81144, FWS 2020, p. 
83), which were published just 3 weeks before the January Exclusions 
Rule.
    In summary, it is clear from the public comment record that not 
being afforded an opportunity to review and provide comment on the much 
larger and broader areas excluded and the rationale for those 
exclusions, particularly in light of the December 15, 2020, finding 
that the northern spotted owl warranted reclassification to endangered 
status, was considered by the public a lack of transparency and 
inability to participate in the public process as required under the 
Administrative Procedure Act. While our proposed August 11, 2020, rule 
and exclusions did signal the potential that the final rule could be 
different, on reconsideration we find that it is more prudent and 
transparent to conclude that an updated proposed rule and an additional 
opportunity to comment would be warranted were we to seek to put the 
January Exclusions Rule into effect.
    (ii): The AFRC commented that the Service's modeling of extinction 
risk in the 2012 critical habitat designation discounted millions of 
acres of potentially suitable habitat in national parks and designated 
wilderness that are not included in the designation and assert that our 
section 4(b)(2) analysis is flawed because the benefits these areas 
provide was not considered. The AFRC further commented that our 
assertion that these areas are relatively small and widely dispersed 
across the range of the northern spotted owl is inaccurate as these 
lands cover over 7 million acres (2.8 million hectares).
    Our response: We included Congressionally Reserved Lands (e.g., 
designated wilderness and national parks) in our modeling analyses of 
the critical habitat network and extinction risk based on the 
assumption that habitat quality in these areas would be retained 
whether they were designated as critical habitat or not (Dunk et al. 
2012, pp. 19, 57). Our section 4(b)(2) analysis in the 2012 critical 
habitat rule considered the benefits of including these lands within 
the critical habitat designation and found that these areas are 
essential to the conservation of the northern spotted owl. However, 
unlike other Federal and State lands that have multiple use mandates 
that include commercial harvest of timber in the range of the spotted 
owl, such as National Forests, State Forests, and public-domain forests 
managed by the BLM, these reserved natural areas are unlikely to have 
uses that are incompatible with the purposes of critical habitat 
because the primary habitat threat to spotted owl critical habitat--
commercial timber harvest--is generally prohibited on these lands. 
These natural areas are managed under explicit Federal laws and 
policies consistent with the conservation of the northern spotted owl, 
and there is generally little or no timber management beyond the 
removal of hazard trees or fuels management to protect structures, 
roads, human safety, and important natural attributes.
    Accordingly, we found that a critical habitat designation of these 
reserved areas in the range of the spotted owl would provide no 
additional regulatory benefits beyond what is already on these lands 
due to their permanent status as protected lands and, importantly, the 
fact that commercial timber harvest is generally not permitted on these 
lands under Federal and State law and policy. Further, we found that 
the designation of these reserve areas would confer little additional 
educational benefits associated with the conservation of the spotted 
owl, as these educational messages are already being communicated in 
many of these areas under existing programs. In sum, although national 
parks and designated wilderness were excluded under section 4(b)(2) of 
the Act from the 2012 critical habitat designation, the conservation 
value of these lands was considered in our analysis and modeling of 
which lands were essential to the conservation of the northern spotted 
owl and in the design of a critical habitat network.
    Regarding the size and distribution of national parks and 
designated wilderness, we initially identified and proposed to include 
approximately 2.6 million acres (1 million hectares) of these lands in 
the 2012 proposed critical habitat revision because they contained 
northern spotted owl habitat and were found to be essential to the 
conservation of the subspecies. These 2.6 million acres (1 million 
hectares), which we identified as habitat essential to the conservation 
of the northern spotted

[[Page 62611]]

owl, are the areas we describe as relatively small and widely 
dispersed, versus the entire 7 million acres (2.8 million hectares) as 
asserted by the AFRC. However, as we noted at the time of listing the 
northern spotted owl in 1990, many of these areas are also typically 
high-elevation lands and it is unlikely that the owl populations would 
be viable if their habitat were restricted to these areas alone (55 FR 
26114, June 26, 1990; p. 26177). Additionally, as we stated in our July 
20, 2021, proposed revision, some of these areas are widely dispersed 
and cannot be relied on to sustain the subspecies unless they are part 
of and connected to a wider reserve network as provided by the 2012 
critical habitat designation (77 FR 71876, December 4, 2012).
    (iii): The AFRC commented that we stated that the barred owl is not 
the primary threat to northern spotted owls and that this is 
contradicted by the best available science. The AFRC and several 
counties stated that there is little to no benefit of including areas 
occupied by barred owls because the two species cannot coexist and the 
presence of barred owls makes these areas unsuitable for northern 
spotted owls. The AFRC commented that our conclusion that habitat 
availability is as important as managing the threat of barred owls is 
inaccurate.
    Our response: In our July 20, 2021, proposed rule, we stated that 
the large additional exclusions made in the January Exclusions Rule 
were premised on inaccurate assumptions about the status of the owl and 
its habitat needs particularly in relation to barred owls. The large 
additional exclusions were based in part on an assumption that barred 
owl control is the fundamental driver of northern spotted owl recovery, 
when in fact the best scientific data indicate that protecting late-
successional habitat also remains critical for the conservation of the 
spotted owl (FWS 2020, p. 83). We did not intend this statement to be 
read to mean that the barred owl is not the primary threat to northern 
spotted owls. We meant that recovery of the northern spotted owl will 
require management of the barred owl as well as continued habitat 
protections. See our response to Comment (13) below for a discussion on 
the threat of barred owls to northern spotted owls and the importance 
of maintaining habitat in light of competition with barred owls. 
Although the northern spotted owl does not coexist well with the 
invasive barred owl and the two species have a high degree of overlap 
in their habitat preferences (Wiens et al. 2021, p. 2), their presence 
does not alter the suitability of the habitat to support northern 
spotted owls. In fact, the availability of suitable forest conditions 
and addressing habitat loss is needed to work in concert with barred 
owl management to reduce population declines of northern spotted owls 
(Wiens et al. 2021, pp. 1, 2).
    (iv): The AFRC commented that the Service's rationale for 
withdrawing the January Exclusions Rule based on the need for 
biological redundancy is flawed because critical habitat exacerbates 
the wildfire threat to the northern spotted owl and communities by 
inhibiting active forest management (other commenters, including 
several counties, reiterated this assertion that critical habitat 
conflicts with active management aimed at reducing wildfire risk). 
Specifically, the AFRC states that forest treatments that remove canopy 
cover to such an extent that habitat is ``downgraded'' (e.g., habitat 
that supports nesting, roosting, and foraging is removed and the area 
can only support dispersal) are avoided or deferred due to regulatory 
constraints such as section 7 consultation requirements on critical 
habitat for projects that would reduce the risk of wildfire in dry 
forest ecosystems. The AFRC provided examples of projects that they 
assert were altered due to the critical habitat designation or 
litigated and delayed due to issues related to critical habitat.
    Our response: See our response to Comment (27a) regarding perceived 
conflicts between the critical habitat designation and active forest 
management to address risk of wildfire in the dry forest ecosystem. See 
also our response to Comment (9) regarding the need for biological 
redundancy within the critical habitat designation. In regard to the 
specific prescriptions for forest management treatments in dry forest 
ecosystems within critical habitat, in the section on Special 
Management Considerations or Protection, the 2012 critical habitat rule 
referred to the guidance discussed in the Revised Recovery Plan for the 
Northern Spotted Owl (Recovery Plan) (FWS 2011, pp. III-11 to III-39). 
The Recovery Plan recommended active forest management with the goal of 
maintaining or restoring forest ecosystem structure, composition, and 
processes that would be sustainable and provide resiliency under 
current and future climate conditions. The Recovery Plan acknowledged 
that short-term impacts to northern spotted owls and their habitat may 
occur due to these actions, but they may be beneficial in the long-term 
if they reduce future losses from disturbance events, such as wildfire, 
and improve resiliency to climate change (FWS 2011, p. III-14). 
Further, the Revised Recovery Plan for the Northern Spotted Owl states 
that ``tradeoffs that affect spotted owl recovery will need to be 
assessed on the ground, on a case-by-case basis with careful 
consideration given to the specific geographical and temporal context 
of a proposed action'' and that specific prescriptions to meet the 
goals of the recovery plan vary across forest types and the landscape 
(FWS 2011, p. III-14). Section 7 consultations conducted on forest 
management actions within critical habitat provide the avenue for these 
assessments and are one of the benefits of designating these areas.
    In response to projects being altered due to the 2012 critical 
habitat designation, the examples that AFRC provided were for projects 
that were consulted on prior to the critical habitat designation but 
had not yet been implemented when the designation was finalized. 
Project modifications and additional time to address the effects to the 
physical and biological features of critical habitat and to consider 
the special management recommendations and protections discussed in the 
recently published critical habitat designation is a reasonable 
expectation for such projects. In response to projects being avoided or 
deferred within critical habitat, contrary to AFRC's assertion, 
projects to reduce the risk of wildfire continue to be consulted on 
with positive outcomes for the subspecies and the ecosystem while 
allowing for timber harvest that meets Federal agency timber production 
purposes; see our response to Comment (27a) for a discussion of recent 
consultations. The decision on whether to propose an action that will 
need to undergo section 7 consultation, however, is under the purview 
of the Federal land management agencies. As we noted in the 2012 
critical habitat rule, specifically prescribing such management is 
beyond the scope or purpose of the critical habitat designation, but 
should instead be developed by the appropriate land management agency 
at the appropriate land management scale (e.g., National Forest or BLM 
District) (USDA 2010, entire; Fontaine and Kennedy 2012, p. 1559; 
Gustafsson et al. 2012, pp. 639-641, Davis et al. 2012, entire) through 
the land managing agencies' planning processes and with technical 
assistance from the Service, as appropriate (77 FR 71876, December 4, 
2012; p. 71882).
    In response to the comment that litigation associated with critical 
habitat designations demonstrates that the designation conflicts with 
forest

[[Page 62612]]

management, we note that historically Federal forest management 
projects are frequently the subject of litigation regardless of whether 
they occur within critical habitat or not. Litigation on these projects 
does not necessarily indicate that critical habitat conflicts with 
forest management. There are myriad reasons and issues that parties 
seek to litigate Federal forest management actions; because they do so 
is not a basis to conclude that the critical habitat designation is 
flawed.
    (v): The AFRC commented that northern spotted owl critical habitat 
restricts timber harvest, citing the USFS' recent Bioregional 
Assessment (USFS 2020), which states that timber production and 
restoration often conflict with habitat protection objectives and 
provides an example of reduced timber harvest on USFS matrix lands due 
to critical habitat designation. AFRC further commented that critical 
habitat has the effect of altering management direction on USFS matrix 
lands based on the USFS recommendation in the Bioregional Assessment to 
align their reserve allocations with the 2012 critical habitat 
designation. AFRC asserts that a conflict in management of USFS forest 
lands exists such that managing hazardous fuel loads that improve 
forest health and resilience to wildfire conflicts with maintaining 
vegetative cover that is needed for northern spotted owls.
    Our response: The USFS Bioregional Assessment (Assessment) (USFS 
2020) is one of the initial steps the USFS has taken to address 
management plans that need to be updated. Most of the land management 
plans in the area analyzed under the Assessment were written about 30 
years ago and need to be updated to reflect current science and social, 
economic, and ecological challenges across this area (USFS 2020, p. 
10). The Assessment focuses on the most compelling issues across the 
landscape that need updating, including species' habitat needs and the 
need to address climate change, severe wildfire risk, and forest 
health. The Assessment indicates that timber harvest is no longer 
emphasized on USFS matrix lands that were designated as critical 
habitat and expresses the need to align their reserve allocations with 
the 2012 critical habitat designation (USFS 2020, pp. 60, 63). However, 
the Assessment further states that ``better realignment of the late-
successional reserve network with critical habitat could adjust the 
matrix lands available for ecological treatments, which might provide 
additional timber outputs'' (USFS 2020, p. 74). Additionally, the 
Assessment states that ``[b]etter alignment is needed between 
designated critical habitat for spotted owls and the late-successional 
old-growth portion of the late-successional reserve network; this could 
help simplify management direction and better protect high-quality 
habitat for owls and other old growth-dependent species, such as 
marbled murrelet. In addition to protecting these habitats, management 
direction that allows active management to restore and improve 
ecosystem resilience could help conserve and develop northern spotted 
owl habitat in the long term'' (USFS 2020, p. 63).
    The Assessment expresses an urgent need to update their land 
management plans to modify desired conditions associated with dry 
forest ecosystems and to allow for active management in fire-prone 
areas to restore ecological integrity and habitat (USFS 2020, pp. 63, 
71, 76); active management to address these needs aligns with both the 
Recovery Plan for the Northern Spotted Owl and the 2012 critical 
habitat designation. Finally, the Assessment recognizes that ``social 
values related to land management have begun to shift toward 
recognition of the broad benefits associated with our natural resources 
and the importance of balancing resource protection with timber 
production'' (USFS 2020, p. 62).
    We acknowledge that the designation of critical habitat on USFS 
matrix lands can inform where timber harvest is emphasized as the USFS 
considers the special management considerations and protections 
discussed in the 2012 critical habitat designation. Education and 
providing information are important functions of critical habitat 
designations, especially when designing and implementing forest 
management projects on public lands. However, the Service continues to 
advocate for active management of forests to reduce wildfire risks as 
described in our 2012 critical habitat rule and the Recovery Plan. We 
designated USFS matrix lands as critical habitat where they contain 
habitat that is essential to the subspecies' conservation (77 FR 71876, 
December 4, 2012; p. 71895).
    See our response to Comment (27a) regarding perceived conflicts 
between the critical habitat designation and active forest management 
to address the risk of wildfire in the dry forest ecosystem.
    (vi): The AFRC commented that our July 20, 2021, proposed revised 
critical habitat rule fails to consider the contribution that 
management plans have in addressing connectivity across the landscape 
and the current level of connectivity provided by management since the 
NWFP was adopted. The AFRC stated that the Service acknowledged in the 
Recovery Plan that the NWFP provides direction to address connectivity 
and that both the reserve and matrix land-use allocations would 
contribute to connectivity. AFRC further stated that the USFS maintains 
dispersal habitat across their land-use allocations, that dispersal is 
not a limiting factor, and that there is far more dispersal habitat 
than is needed.
    Our response: See our response to Comment (9) regarding the need 
for biological redundancy within the critical habitat designation and 
our responses to Comments (25c-e) regarding our consideration of 
management plans. We evaluate effects of Federal actions on northern 
spotted owl dispersal habitat during the section 7 consultation process 
at a larger scale than effects of the action to nesting, roosting, and 
foraging habitat. This approach is to ensure that dispersal habitat is 
providing for connectivity across the landscape between large blocks of 
nesting, roosting, and foraging habitat that reproducing northern 
spotted owls prefer when available in an area. The amount of dispersal 
habitat varies across the designation and is limited in some geographic 
areas such as between the Coast Range and Cascade Range in southern 
Oregon (FWS 2020, pp. 28-32). The biological redundancy included in the 
design of the critical habitat network allows for some timber harvest 
and was included to address the unpredictability of the extent of 
natural disturbances such as wildfire.
    (vii): The AFRC commented that ``mere connectivity is not an 
element of habitat or critical habitat, and effects only on 
connectivity cannot constitute `adverse modification' in violation of 
the ESA,'' citing Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1262 (9th 
Cir. 2017) and that areas that provide only connectivity, therefore, 
cannot be designated as critical habitat.
    Our response: We do not agree with the commenter's interpretation 
of the cited case, which involved effects of a proposed Federal action 
to the desert tortoise. There, the project effects challenged were not 
to designated critical habitat, but rather to habitat that provided 
connectivity between designated critical habitat units. The Service 
concluded that although the project affected connectivity habitat for 
the tortoise, those effects did not adversely modify critical habitat. 
Plaintiffs asserted that the Service was obligated to evaluate the 
effect of that connectivity loss as an ``adverse modification'' to 
critical habitat. The Service appropriately considered the effects of 
the potential loss of

[[Page 62613]]

connectivity in examining whether the Federal action jeopardized the 
species, but reasonably concluded that alterations to habitat that is 
not designated as critical habitat did not ``adversely modify'' that 
critical habitat.
    The court simply affirmed this rational approach; the court's 
decision does not stand for the proposition that designated critical 
habitat cannot include the characteristics of connectivity. To the 
contrary, the court recognized the well-established scientific 
principles of connectivity (``[c]onnectivity is the ``degree to which 
population growth and vital rates are affected by dispersal'' and ``the 
flow of genetic material between two populations.''). Connectivity 
promotes stability in a species by ``providing an immigrant subsidy 
that compensates for low survival or birth rates of residents'' and 
``increasing colonization of unoccupied'' habitat,'' Defs. of Wildlife 
v. Zinke at 1254. This case is distinguishable from the circumstances 
of the northern spotted owl in that the Service has expressly 
designated ``connectivity'' habitat as critical habitat, i.e., the 
dispersal habitat.
    For the northern spotted owl, a project that proposes significant 
impacts to designated critical dispersal habitat that impedes 
connectivity between large blocks of designated critical habitat used 
for nesting, roosting, or foraging could result in a conclusion that 
the action would destroy or adversely modify critical habitat. Although 
habitat that allows for dispersal may currently be marginal with 
insufficient characteristics to support nesting, roosting, or foraging, 
it provides an important linkage function among blocks of higher-
quality habitat both locally and over the northern spotted owl's range 
that is essential to its conservation. Juvenile dispersal is a highly 
vulnerable life stage for northern spotted owls and enhancing the 
survivorship of juveniles during this period could play an important 
role in maintaining stable populations of northern spotted owls.
    Dispersal habitat is habitat that both juvenile and adult northern 
spotted owls use when looking to establish a new territory. Both 
dispersing subadults and nonterritorial birds (often referred to as 
``floaters'') are present on the landscape and require suitable habitat 
to support dispersal and survival until they recruit into the breeding 
population; this habitat requirement is in addition to that already 
used by resident territorial owls. Successful dispersal of northern 
spotted owls is essential to maintaining genetic and demographic 
connections among populations across the range of the subspecies and 
population growth can occur only if there is adequate habitat in an 
appropriate configuration to allow for the dispersal of owls across the 
landscape; therefore, the Service included dispersal habitat as part of 
the critical habitat designated for the northern spotted owl.
    (viii): Comments submitted by AFRC (and incorporated by others) 
include assertions that the Service included within the 2012 critical 
habitat designation areas that are not ``habitat'' for the northern 
spotted owl, in contravention of the Supreme Court's subsequent ruling 
in 2018 that critical habitat designated under the Act must be habitat 
for the species in the first instance (Weyerhaeuser Co. v. U.S. Fish 
and Wildlife Serv., 139 S. Ct. 361, 368 (2018) (``Weyerhaeuser''). 
These commenters assert that areas that are not ``habitat'' for the owl 
within the critical habitat designation should be excluded by the 
Secretary under section 4(b)(2).
    Our response: As we explain in more detail in the Background 
section below, we reviewed our 2012 critical habitat rule for 
consistency with our new regulation defining ``habitat'' following the 
Weyerhaeuser decision, and demonstrate why all of the designated 
critical habitat is habitat for the northern spotted owl. We also 
respond to comments seeking a wide variety of exclusions based on 
general assertions that areas are not ``habitat'' for the northern 
spotted owl presently, explaining why the assumptions underlying these 
assertions are incorrect as matter of fact or law; see responses to 
Comments (26-28).
    Comment (D): The AFRC and several counties commented on several 
other issues pertaining to our March 1, 2021, delay rule; April 30, 
2021, delay rule; and proposed withdrawal of the January Exclusions 
Rule as summarized below:
    (i): Commenters stated that the Service predetermined to issue a 
further delay rule prior to publishing the March 1, 2021, delay rule.
    Our response: As described in the March 1, 2021, delay rule, the 
Service was concerned about the potential effects of the January 2021 
exclusions to impede conservation of the northern spotted owl, and 
sought comments on the issues of fact, law, and policy regarding the 
January Exclusions Rule. We noted that an additional delay of the 
effective date might be warranted and expressly sought comment. As the 
first delay rule would expire by April 30, and it can take some time to 
develop and obtain publication of rules in the Federal Register, it was 
appropriate for the Service to prepare a draft of such a second rule 
while the first was being published. That the Service took steps to do 
so is not a ``predetermination.'' Agencies frequently prepare drafts of 
rules and change them based on internal and public comments. Any 
decision to move forward with a second delay rule is not final until 
authorized by the Service and published in the Federal Register.
    (ii): Commenters stated that the delay rule is unlawful and 
contrary to the Administrative Procedure Act and failed to effect a 
valid amendment of the January Exclusions Rule, which was due to go 
into effect on March 16, 2021. Commenters stated that the Service's 
issuance of the March 1, 2021, delay rule without providing an 
opportunity for public notice and comment was in violation of the 
Administrative Procedure Act. Commenters further stated that the April 
30, 2021, rule delaying the effective date of the January Exclusions 
Rule until December 15, 2021, was issued after the first delay rule 
expired and the January Exclusions Rule had gone into effect.
    Our response: As the commenter noted, issues concerning the 
lawfulness of the delay rule are the subject of litigation brought 
against the Service on these topics in which they are plaintiffs, see 
American Forest Resource Council v. Williams, No. 1:21-cv-00601-RJL 
(D.D.C). The Service has responded to these assertions in briefs before 
the court. In summary, the Service's decision to delay the 
implementation of the January Exclusions Rule and ultimately to allow 
for this additional rulemaking to withdraw it, was consistent with all 
applicable laws. For further details, please see our responsive briefs 
in that litigation, available in our record for this rulemaking.
    (iii): Commenters stated that we cannot withdraw a rule that has 
been published; it must instead be repealed, rescinded, or amended. 
Based on this rationale, commenters stated that we must redesignate in 
a new rulemaking the acres that were excluded in the January Exclusions 
Rule if we are to retain them in the critical habitat designation and 
that we must complete a new economic analysis for those redesignated 
lands.
    Our response: Whether or not the Service uses the term ``withdraw, 
repeal, or rescind'' does not alter the result of this final rule--the 
exclusions finalized (but not in effect) in the January rule are 
``withdrawn, repealed, or rescinded'' by this final rule. Because this 
final rule to take this action was developed with notice and comment 
rulemaking, ``repeal'' would be

[[Page 62614]]

consistent with the language used in the Administrative Procedure Act 
for the notice and comment rulemaking here. However, as the January 
Exclusions Rule was final, but never went into effect, ``withdraw'' is 
similar to situations in which a rule is developed but never went into 
effect as cited by the commenters. In any event, as the January 
Exclusions Rule never went into effect, the Service was not obligated 
to ``redesignate'' the critical habitat areas already designated and 
unchanged since the 2012 critical habitat rule.
    (iv): Commenters stated that withdrawing the January Exclusions 
Rule violates the terms and intent of the settlement agreement in 
Carpenters Industrial Council et al. v. Bernhardt et al., No. 13-361-
RJL (D.D.C.) (retitled Pacific Northwest Regional Council of Carpenters 
et al. v. Bernhardt et al. with the substitution of named parties 
before being dismissed).
    Our response: The commenter does not dispute that the Service 
completed the production of a proposed and final rule per the timeline 
in the settlement agreement, as extended. Rather, the commenter asserts 
that because of the alleged flaws in the delay rules, the withdrawal of 
the January Exclusions Rule violates the settlement agreement terms and 
intent. The Service addresses the assertions regarding the delay rules 
above. As to the ``intent'' of the settlement agreement, the Service is 
here finalizing a revision to the 2012 critical habitat rule excluding 
additional areas under authority of section 4(b)(2). This final rule is 
not the broad exclusions that the commenters sought, but this does not 
mean the Service violated either the intent, let alone the terms, of 
the settlement agreement with the litigating parties. The Service did 
not (nor could it have) pre-committed in a settlement agreement to 
ultimately determine a set of exclusions in advance of public notice 
and comment rulemaking.
    Comment (E): Douglas County commented that exclusion of O&C lands 
would not result in extinction of the northern spotted owl and that 
exclusion of these areas would result in a stronger partnership with 
local forest managers.
    Our response: See our consideration of the benefits of partnerships 
and our extinction analysis in Consideration of Impacts Under Section 
4(b)(2) of the Act.
    Comment (F): Commenters stated that our reevaluation of the 
exclusions in the January Exclusions Rule is counter to the finding the 
Secretary made in 1992 that ``overall effects on the Northwest timber 
industry and to some counties in particular, were potentially severe 
and that further consideration should be given to excluding additional 
acreage from the final designation to reduce the overall economic 
impacts that may result from the designation of critical habitat.''
    Our response: Under section 4(b)(2) of the Act, 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 that determination, the Secretary has broad discretion 
regarding which factor(s) to use and how much weight to give to any 
factor; this discretion is not limited by previous determinations such 
as we made in 1992. In this rulemaking, the Secretary has exercised her 
discretion to exclude certain areas and not others from the critical 
habitat designation after weighing these benefits.
    Comment (G): Conservation groups commented that to the extent the 
January Exclusions Rule relied on economic impacts, recent research 
(Ferris and Frank 2021) shows that the economic impacts of the 2012 
critical habitat designation have been overstated and are instead 
consistent with what the Service found at that time.
    Our response: Ferris and Frank (2021) discuss the impact that the 
1990 listing of the northern spotted owl and subsequent critical 
habitat designation in 1992 had on employment in the Lumber and Woods 
Products Sector between 1984 and 2000. The authors found that the 
impacts to employment in this sector were similar to what the 
government projected at the time of listing of the northern spotted owl 
and were not as large as projected in industry studies. Their study, 
however, did not focus on the incremental impacts of designating 
critical habitat for the northern spotted owl above those impacts 
attributed to listing, which is how the Service assesses the economic 
effect of critical habitat designations.

Comments Specific to Exclusions

Comments From Federal Agencies

    Comment (1): The USFS stated that, as critical habitat in southern 
Oregon and northern California becomes more fire prone, as evidenced by 
the 2020 fire season, the USFS continues to be concerned for the 
persistence of the northern spotted owl in the Pacific Northwest. The 
USFS encouraged connectivity between existing critical habitat units. 
In particular, the USFS commented that the Service should consider the 
probability of wildfire events, the effect of climate change, and 
projected wildfire behavior as tools for determining where critical 
habitat designations should be revised throughout the range of the 
northern spotted owl. Additionally, on December 15, 2020, after the 
comment period closed on our August 11, 2020, proposed rule, we 
received a comment letter from the Under Secretary, Natural Resources 
and Environment, Department of Agriculture, supporting Interior's 
efforts to revise the northern spotted owl critical habitat designation 
because of difficulties encountered by the USFS in achieving its 
statutory mission for managing the National Forests. The letter 
discussed the devastation to the spotted owl habitat and to other 
property caused by wildfire in general, using the 2020 wildfire season 
as an example. The letter requested that the USFS and the Service work 
together in protecting the northern spotted owl and lowering the risks 
of catastrophic wildfire.
    Our response: In response to the comment submitted by the 
Department of Agriculture, it is important to note that the Service 
works closely with the USFS and other land managers to both recover the 
northern spotted owl and lower the risk of catastrophic wildfire. For 
example, the Service has completed multiple consultations under section 
7 with Federal agencies on fuels reduction, stand resiliency, and pine 
restoration projects in dry forest systems within the range of the 
northern spotted owl. Those actions have included treatment areas that 
reduce forest canopy to obtain desired silvicultural outcomes, lower 
potential wildfire severity, and meet the need for timber production. 
They also promote ecological restoration and are expected to reduce 
future losses of spotted owl habitat and improve overall forest 
ecosystem resilience to climate change. We have concluded in these 
consultations that the actions do not destroy or adversely modify 
critical habitat as defined under the Act and our implementing 
regulations. Thus, in our experience, Federal agencies are able to plan 
and implement active forest management, including commercial timber 
harvests, to reduce wildfire risk in northern spotted owl designated 
critical habitat.
    In addition, the Service considered the potential impacts of 
wildfire in our 2012 critical habitat designation (77 FR 71876, 
December 4, 2012). The 2012 critical habitat rule represented an 
increase in the total land area identified

[[Page 62615]]

from previous designations in 1992 and 2008. This increase in area was 
due, in part, to the need to provide for essential biological 
redundancy in northern spotted owl populations and habitat in fire-
prone landscapes (Noss et al. 2006, p. 484; Thomas et al. 2006, p. 285; 
Kennedy and Wimberly 2009, p. 565). Please see our response to Comment 
(9) concerning the impact of the 2020 wildfires.
    In response to these and similar comments from others asserting 
that excluding areas from critical habitat would lead to a reduction in 
wildfire risks, the January Exclusions Rule acknowledged that Federal 
land managers could conduct active management in areas of designated 
critical habitat without violating the adverse modification prohibition 
of section 7 of the Act. The January Exclusions Rule went further, 
however, and inferred that the exclusion of areas from designated 
critical habitat would increase the potential for Federal land managers 
to include more lands in the Harvest Land Base, and allow longer cycles 
between timber harvests to provide many environmental benefits, 
including reductions in wildfire risk. It is certainly true that longer 
cycles between timber harvests, i.e., allowing trees to become older 
before they are removed, can have environmental benefits for species 
dependent on mature forests such as the northern spotted owl. However, 
it is speculative to conclude that Federal land managers would change 
their approach to allow for longer rotations if lands are excluded from 
the northern spotted owl critical habitat designation. There also 
remains scientific uncertainty about the conclusion that harvest of 
timber always lessens risks for catastrophic wildfire as compared with, 
for example, a focus on fuel reduction treatments targeted to restore 
more sustainable ecological processes. While the efficacy of standalone 
treatments such as thinning is uncertain and site-dependent, there 
exists widespread agreement that combined effects of thinning plus 
prescribed burning consistently reduce the potential for severe 
wildfire across a broad range of forest types and conditions (Prichard 
et al. 2021, Fule et al. 2012, Kalies et al. 2016, Stephens et al. 
2021).
    In response to the USFS comments concerning spotted owl habitat 
connectivity, providing connectivity while also supporting other uses 
of forest lands is consistent with the critical habitat designation. 
For example, we found in our 2016 Biological Opinion on the revised BLM 
RMPs that the spatial configuration of ``reserve'' land use allocations 
identified in the RMPs provide for northern spotted owl connectivity 
across the landscape. Reserve land-use allocations are areas in which 
BLM prioritizes management for resources other than commercial timber 
production, although active management such as harvest may occur in 
some reserves in order to achieve management objectives. The Harvest 
Land Base land-use allocation describes areas where BLM prioritizes 
commercial timber production. The BLM's management of the Late-
Successional Reserve for northern spotted owl habitat and other 
reserves for non-timber objectives, along with the management and 
scheduling of timber sales within the Harvest Land Base, are expected 
to provide for northern spotted owl dispersal between physiographic 
provinces and between and among large blocks of habitat designed to 
support clusters of reproducing northern spotted owls (FWS 2016, p. 
698), while also allowing BLM to meet its timber harvest goals.

Comments From States

    Section 4(b)(5)(A)(ii) of the Act requires the Service to give 
actual notice of any designation of lands that are considered to be 
critical habitat to the appropriate agency of each State in which the 
species is believed to occur, and invite each such agency to comment on 
the proposed regulation. Section 4(i) of the Act states, ``the 
Secretary shall submit to the State agency a written justification for 
his failure to adopt regulations consistent with the agency's comments 
or petition.'' We notified the States of Washington, Oregon, and 
California of the proposed additional exclusions in Oregon. We did not 
receive comments from any State or State agency on the August 11, 2020, 
or July 20, 2021, proposed rules, only comments regarding the January 
Exclusions Rule; see our response to Comment (Ci).

Comments From Counties

    We received comments from Klickitat, Lewis, and Skamania Counties 
in Washington; from Douglas, Jackson, and Harney Counties in Oregon; 
and from Siskiyou County in California. Most comments from counties 
pertained to either economic analysis or exclusions; see Economic 
Analysis Comments and Exclusions Comments below for County comments and 
our responses. Other comments from the counties are addressed in the 
section above titled Comments on the Withdrawal of the January 
Exclusions Rule and the section below titled Comments on July 20, 2021, 
Proposed Rule.

Comments From Tribes

    We received comments from the Confederated Tribes of Coos, Lower 
Umpqua, and Siuslaw Indians; the Cow Creek Band of Umpqua Tribe of 
Indians; and the Coquille Indian Tribe.
    Comment (2): The Confederated Tribes of Coos, Lower Umpqua, and 
Siuslaw Indians and the Cow Creek Band of Umpqua Tribe of Indians 
commented in support of the proposed exclusion of lands recently 
transferred to them in trust. The Cow Creek Band of Umpqua Tribe of 
Indians expressed concern, however, that the proposed rule did not 
consider Tribal management plans and objectives for Indian forest land 
as a basis for the exclusions. The Coquille Tribe similarly commented 
in general that the rule should include a statement that recognizes the 
dominant purpose of the Coquille Forest to generate sustainable 
revenues sufficient to support the Coquille Tribal government's ability 
to provide services to Coquille Tribal members, and ensure that the 
resulting critical habitat designation avoids burdening the Coquille 
Forest's dominant purpose.
    Our response: No Indian lands were designated in the December 4, 
2012, critical habitat rule (77 FR 71876). Since 2012, Federal lands 
managed by the BLM were transferred in trust to the Confederated Tribes 
of Coos, Lower Umpqua, and Siuslaw Indians and the Cow Creek Band of 
Umpqua Tribe of Indians pursuant to the Western Oregon Tribal Fairness 
Act (Pub. L. 115-103). This revised rule excludes those recently 
transferred lands from critical habitat designation. We considered 
Tribal management plans in our analysis of these exclusions as 
requested by the commenters; see Consideration of Impacts Under Section 
4(b)(2) of the Act.
    We have not designated critical habitat within the Coquille Forest. 
Should we consider revisions to the critical habitat designation in the 
future, the Service will coordinate with the Coquille Tribe to address 
effects to the Forest and its dominant use as managed by the Tribe.

Public Comments

Public Comments on Critical Habitat Boundaries
    Comment (3): Commenters expressed concern that areas we proposed 
for exclusion in our August 11, 2020, proposed rule and our July 20, 
2021, proposed rule provide important connectivity between the Coast 
Range, Cascades, and Klamath/Siskiyou Mountains populations of northern

[[Page 62616]]

spotted owls, and that exclusion could reduce colonization and gene 
flow, cause further isolation, and increase the probability of 
extinction of the owl. Commenters further stated that we should not 
rely on outdated plans that assume that northern spotted owls can 
successfully disperse in low-quality habitat, and that the distribution 
of reserves on National Forests alone will not meet the subspecies' 
need for well-connected habitat.
    Our response: The BLM updated their RMPs in 2016; we found in our 
2016 Biological Opinion on the revised BLM RMPs that the spatial 
configuration of reserves, the management of those reserves for the 
retention, promotion, and development of northern spotted owl habitat, 
and the management and scheduling of timber sales within the Harvest 
Land Base land use allocation are all expected to provide adequate 
opportunities for northern spotted owl dispersal between physiographic 
provinces and between and among large blocks of habitat designed to 
support clusters of reproducing northern spotted owls (FWS 2016, p. 
698). Thus, by excluding areas within the Harvest Land Base, we are not 
diminishing or altering connectivity functions of the remaining 
designated critical habitat to any significant degree. Additionally, 
regarding the reliance on reserves alone to facilitate connectivity, 
this revised designation retains USFS matrix lands that are essential 
to the conservation of the subspecies in addition to reserve lands. 
Please see our response to Comment (9) concerning the impact of the 
2020 wildfires and Comment (26b) concerning the quality of dispersal 
habitat.
    In response to this comment, the January Exclusions Rule concluded 
that connectivity would remain protected without the critical habitat 
designation because Federal actions that ``may affect'' northern 
spotted owls would still require consultation under section 7 of the 
Act to evaluate whether the action jeopardizes the continued existence 
of the subspecies. On further review, we conclude that assumption was 
overstated as a basis to exclude these lands. It is true that Federal 
actions that ``may affect'' northern spotted owls, including actions 
that impact northern spotted owl habitat even if not designated as 
``critical,'' would still undergo section 7 consultation (whether 
informal or formal, depending on the effects, see our response to 
Comment 7, below). The critical habitat designation, however, benefits 
the northern spotted owl as a landscape-scale conservation network that 
connects large blocks of habitat that are able to support multiple 
clusters of northern spotted owls. The designation identifies areas on 
the landscape that may require special management considerations or 
protection.
    The section 7 consultation on effects to critical habitat ensures 
these considerations occur and evaluates the post-project functionality 
of the network to provide for connectivity at the subunit, unit, and 
designation scales. Evaluating habitat at multiple scales in a 
consultation on critical habitat ensures the landscape continues to 
support the habitat network locally, regionally, and across the 
designation.
    These considerations are not necessarily involved to the same 
degree when considering the effects to northern spotted owl habitat 
that is not designated as critical as part of the jeopardy analysis in 
a section 7 consultation. A consultation on effects to the species 
(including effects resulting from changes to the non-designated habitat 
of the species) as part of the ``jeopardy'' prong looks primarily at 
how the project affects individuals, populations, and the species 
rangewide. Consultation on the effects to the designated critical 
habitat (the ``critical habitat'' prong of the consultation) focuses on 
that habitat network. This reflects Congress's clear articulation of 
two limits on Federal actions in section 7: A prohibition against 
jeopardizing the species, and a prohibition against destroying or 
adversely modifying its designated critical habitat. While we do 
evaluate the effects of landscape level impacts to habitat as part of 
the jeopardy analysis, this does not mean that the analysis of impacts 
to critical habitat are no longer necessary; the two analyses are not 
necessarily interchangeable.
    Additionally, many of the lands that were excluded in the January 
Exclusions Rule are reserves or matrix lands that provide habitat that 
we found in our 2012 critical habitat rule were essential to the 
conservation of the northern spotted owl (77 FR 71876; p. 71895). See 
our reconsideration of the weighing of the benefits of inclusion versus 
the benefits of excluding these lands and our extinction analysis in 
Consideration of Impacts Under Section 4(b)(2) of the Act. The Harvest 
Land Base lands that we exclude here in this final rule represent only 
a small portion (less than 2 percent) of the critical habitat 
designation and represent only 7 percent of the land base managed by 
the BLM under the 2016 RMPs, with the remaining lands largely managed 
as reserves. We evaluated the effects of future harvest on the Harvest 
Land Base lands in our 2016 biological opinion on the BLM's revised 
RMPs (BLM 2016a, b) and found that recovery of the northern spotted owl 
would not be impeded and that the critical habitat units would continue 
to provide connectivity and sufficient habitat across the landscape 
(FWS 2016). Therefore, additional section 7 consultation on critical 
habitat within the Harvest Land Base as currently described in the 2016 
RMPs would provide no incremental conservation benefit as the 
management direction under the RMPs already provides a conservation 
strategy consistent with recovery of the northern spotted owl and will 
not appreciably diminish the conservation value of the critical habitat 
designation.
    The January Exclusions Rule, in response to this comment, also 
stated that ``some of the areas used by the northern spotted owl for 
migration are secondary growth forests'' and that ``excluding such 
areas from critical habitat will not change their characteristics as 
secondary growth forests'' and they will continue to be used for 
``migratory purposes.'' On further review we find it is accurate that 
northern spotted owls may use areas of secondary growth forest; 
however, their use of these areas is dependent on the age, diversity, 
and condition of those forests. See also our response to Comment (26) 
below. An increase in the areas available for timber harvest, which was 
identified as a benefit of excluding the 3.4 million acres (1.4 million 
hectares) in the January Exclusions Rule, could occur if these lands 
were excluded from the critical habitat designation and land management 
agencies were no longer required to consider the special management 
considerations of critical habitat and subsequently amended their 
management approach or land management plans to allow for more harvest. 
The resulting increase in timber harvest could significantly alter the 
ability of these stands to provide for dispersal. While these changes 
in management and any resulting projects would not be immediate if 
these areas were excluded from the designation, over time expanded 
timber harvest would reduce connectivity of these areas to older, more 
complex forests that provide nesting, roosting, and foraging habitat 
for populations of northern spotted owls. Conserving or enhancing 
connectivity between populations to facilitate dispersal and subsequent 
colonization of large blocks of habitat that can support clusters of 
reproducing northern spotted owls was a key feature in the design of 
the critical habitat network.

[[Page 62617]]

    Additionally, the January Exclusions Rule assumed that the reduced 
regulatory burden in the process of Federal planning and implementation 
of timber management would result in increased harvest. Increased 
harvest at the scale of exclusions in the January Exclusions Rule would 
reduce the overall connectivity and suitability of the critical habitat 
network. That reduction in connectivity under the January Exclusions 
Rule was, in hindsight, quite significant because of the expansive 
elimination of critical habitat designated in areas of the northern 
spotted owl range, with some critical habitat subunits being reduced by 
up to 90 percent. The much smaller exclusions we finalize here 
eliminate only portions of critical habitat units that overlap with the 
Harvest Land Base allocation, which, as we already determined in our 
2016 biological opinion, could be harvested without affecting the 
conservation value, including connectivity, of that designated critical 
habitat. See also our response to Comment (9) concerning the impact of 
the 2020 wildfires.
    Comment (4): Commenters noted that the lands proposed for exclusion 
in our August 11, 2020, proposed rule and July 20, 2021 proposed rule, 
in particular Federal lands, met the definition of critical habitat for 
the northern spotted owl and were determined to be essential in our 
2012 critical habitat designation (77 FR 71876), and so questioned how 
those lands could now be appropriate for exclusion from designation. 
Additionally, commenters questioned how the exclusion of these lands 
will not result in extinction.
    Our response: Areas that are found essential to the conservation of 
the species may be considered for exclusion from a critical habitat 
designation under section 4(b)(2) of the Act. 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.
    We found the areas we designated in 2012 to be essential to the 
conservation of the northern spotted owl. However, the BLM revised 
their RMPs in 2016, amending their conservation strategy for the 
northern spotted owl and related land use allocations (BLM 2016a, 
2016b). We found in our 2016 Biological Opinion on the BLM RMPs (FWS 
2016, p. 700) that, even with the projected timber harvest in the 
Harvest Land Base land use allocation, the management direction 
implemented under the RMPs is consistent with the Revised Recovery Plan 
for the Northern Spotted Owl (FWS 2011) and would not appreciably 
diminish the conservation value of, or adversely modify, critical 
habitat (FWS 2016, p. 702). Because we had this updated information and 
analysis, we reconsidered whether exclusion of these areas was 
appropriate. We have determined that the benefits of exclusion of the 
Harvest Land Base land outweigh the benefits of including these areas, 
and that exclusion of these lands will not result in the extinction of 
the northern spotted owl. See our exclusion and extinction analyses for 
Harvest Land Base lands under Consideration of Impacts Under Section 
4(b)(2) of the Act.
    The January Exclusions Rule, which excluded all areas managed by 
the BLM under the O&C Act, including reserves as well as the Harvest 
Land Base, states that excluding the 3.4 million acres (1.4 million 
hectares) identified in that rule will not cause the extinction of the 
northern spotted owl. As discussed in our proposed rule, on 
reconsideration we find that conclusion is not supported by the science 
of conservation biology, the current population trend of the northern 
spotted owl, nor the purpose of the Act. See our analysis in the 
Withdrawal of the January Exclusions Rule section of this rule for a 
more detailed discussion.
    Comment (5): A commenter stated that smaller blocks of northern 
spotted owl critical habitat, such as those areas in the Harvest Land 
Base proposed for exclusion, are also important for the following 
reasons: They are migration/dispersal corridors linking larger habitat 
blocks; they link the Coast Range province with the Cascade Range 
province; and they provide migration corridors that allow a species to 
adapt to climate (and habitat) change by relocating to higher quality 
habitat.
    Our response: See our response to Comment (3). Additionally, the 
BLM manages the Harvest Land Base acres in accordance with the 
management direction of the BLM RMPs (BLM 2016a, 2016b). In our 2016 
Biological Opinion on the BLM RMPs (FWS 2016), we found that, even with 
the projected timber harvest in the Harvest Land Base, the area would 
continue to function for the dispersal of northern spotted owls and 
would provide connectivity between large blocks of habitat designed to 
support clusters of reproducing northern spotted owls.
    Comment (6): Commenters stated we failed to explain why the Service 
no longer believes that Oregon and California Railroad Revested Lands 
(O&C lands) make a significant contribution toward meeting the 
conservation objectives for the northern spotted owl and that we cannot 
attain recovery without them. Other commenters expressed concern about 
excluding lands in southwest Oregon where the majority of O&C lands 
occur.
    Our response: The O&C lands were revested to the Federal Government 
under the Chamberlin-Ferris Act of 1916 (39 Stat. 218). The Oregon and 
California Revested Lands Sustained Yield Management Act of 1937, 
Public Law 75-405 (O&C Act) addresses the management of O&C lands. The 
O&C Act identifies the primary use of revested timberlands for 
permanent forest production. The Harvest Land Base lands that we 
exclude in this revision are mostly on O&C lands managed by the BLM 
under the 2016 RMPs. However, portions of O&C lands, outside of the 
Harvest Land Base, that are managed by either the BLM or the USFS that 
provide essential habitat and are located in a spatial configuration 
that provides connectivity across the designation are still important 
to northern spotted owl conservation and are retained as critical 
habitat in this revision. As we noted above, we found in our 2016 
Biological Opinion on the BLM RMPs (FWS 2016, p. 700) that, even with 
the projected timber harvest in the Harvest Land Base land use 
allocation, the management direction implemented under the RMPs is 
consistent with the Revised Recovery Plan for the Northern Spotted Owl 
(FWS 2011) and would not appreciably diminish the conservation value 
of, or adversely modify, critical habitat (FWS 2016, p. 702). Thus, for 
the reasons explained in Consideration of Impacts Under Section 4(b)(2) 
of the Act, we have excluded the Harvest Land Base from the critical 
habitat designation. This conclusion is based in part on the 
expectation that these lands and the remaining designated critical 
habitat in other land use allocations will be managed consistent with 
the BLM's 2016 RMPs.
    The January Exclusions Rule, because it excluded all O&C lands, 
provided a different response to this comment: ``The O&C Act provides, 
and the courts have confirmed, that the primary use of these revested 
timberlands is for permanent forest production on a sustained yield 
basis. The Supreme Court has additionally determined that the ESA does 
not take precedence over an agency's mandatory (non-discretionary) 
statutory mission. Based on these court rulings, we have determined 
that exclusion of the O&C

[[Page 62618]]

lands as critical habitat is proper in this case.'' 86 FR 4820, January 
15, 2021, p. 4822.
    Though not stated explicitly, this response implied (and has been 
interpreted by some commenters to mean) that the O&C Act removes any 
discretion the BLM may have in how to manage the O&C lands on a 
sustained-yield basis such that the Endangered Species Act does not 
apply to the BLM's management of those lands at all. We take this 
opportunity to correct that implication. Courts reviewing the BLM's 
management of O&C lands have found that the BLM retains discretion as 
to how to achieve sustained yield timber production. See AFRC v. 
Hammond, 422 F.Supp. 3d 184 at 190-91 (D.D.C. 2019); see also Swanson 
Grp. Mfg. LLC v. Salazar, 951 F. Supp. 2d 75, 82 (D.D.C. 2013), vacated 
on other grounds sub nom. Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235 
(D.C. Cir. 2015); Portland Audubon Soc. v. Babbitt, 998 F.2d 705, 709 
(9th Cir. 1993).
    None of these courts--including AFRC v. Hammond, that found legal 
infirmities in the BLM's adoption of its 2016 RMPs--has held that the 
O&C Act precludes the BLM from considering opportunities to conserve 
threatened and endangered species when authorizing actions on O&C 
lands. Indeed, that district court decision narrowly ruled only that 
BLM lacks the authority to designate reserves on O&C lands because it 
violates the mandate to manage those lands for sustained yield timber 
harvest. It expressly stated that BLM had discretion in the management 
of those lands, and certainly did not hold that BLM lacks such 
discretion altogether. To the extent the January Exclusions Rule relied 
on the assumption to the contrary, it was incorrect. In short, 
``reserves'' are not the same as designated critical habitat.
    In any case, as we discuss further in Consideration of Impacts 
Under Section 4(b)(2) of the Act, we conclude that the exclusion of 
some O&C lands from the designation as critical habitat is appropriate, 
but the exclusion of all O&C lands is not.
Public Comments Regarding the Northwest Forest Plan (NWFP) or the BLM 
Revised Resource Management Plans (RMPs)
    Comment (7): Commenters expressed concern that exclusions would 
allow BLM to harvest timber without project-specific consultation under 
section 7 of the Endangered Species Act. Commenters also expressed 
concern that the Service no longer considers habitat fitness when 
assessing project effects and incidental take in section 7 
consultations. Commenters further assumed that section 7 consultations 
would be required only if surveys confirm northern spotted owl 
presence, which commenters considered problematic because they conclude 
we cannot reliably detect northern spotted owls when barred owls are 
present. Thus, critical habitat provides a benefit through section 7 
review likely resulting in the retention of the physical and biological 
features needed by northern spotted owls, which cannot be addressed 
otherwise through section 7 consultations.
    Our response: We completed a programmatic section 7 consultation on 
the BLM RMPs in 2016, under the assumption that BLM will implement 
actions consistent with the RMPs' specific management direction over an 
analytical timeframe of 50 years (FWS 2016, p. 2). This approach 
allowed us to evaluate at a broad scale BLM's plans to ensure that the 
management direction and objectives are consistent with the 
conservation of listed species. We found that the BLM's plans, at the 
programmatic scale, were not likely to jeopardize the continued 
existence of the northern spotted owl, or destroy or adversely modify 
the owl's designated critical habitat (FWS 2016).
    In our July 20, 2021, proposed revision to the critical habitat 
designation, we explained that Federal actions in the Harvest Land Base 
that may affect designated critical habitat require section 7 
consultation at the project-level scale. As discussed further below in 
Consideration of Impacts Under Section 4(b)(2) of the Act, based on our 
experience in project consultations since the BLM 2016 RMPs were 
implemented, addressing effects to designated critical habitat in the 
Harvest Land Base provides no incremental conservation benefit over the 
conservation already provided for in the BLM RMPs (2016a, 2016b) and 
project-level consultations that still occur regardless of the presence 
of critical habitat. Thus, continuing to require BLM to include an 
analysis of effects to designated critical habitat in the Harvest Land 
Base within otherwise triggered, project-level consultations is not 
contributing to the conservation and recovery of the subspecies, nor is 
it an efficient use of limited consultation and administrative 
resources.
    With the exclusions finalized here, actions within the Harvest Land 
Base that affect northern spotted owl habitat (even if that habitat is 
no longer designated as critical) will still be subject to section 7 
consultation to ensure that actions are not likely to jeopardize the 
continued existence of the subspecies, but we are removing the 
regulatory burden to consult under section 7 to address designated 
critical habitat by excluding the Harvest Land Base. We have consulted 
on the program of timber harvest planned under the RMPs, which will 
occur primarily in the Harvest Land Base. We already determined in that 
consultation (FWS 2016) that harvest in the Harvest Land Base will not 
appreciably diminish the value of the critical habitat for the 
conservation of the northern spotted owl and that BLM's management 
approach provided under the RMPs will sustain critical habitat over 
time. Northern spotted owls are expected to continue to be able to 
disperse across the landscape due to the habitat conditions and 
protections in the Late-Successional Reserves and Riparian Reserves, 
the stand retention incorporated into the management direction for 
timber harvest in the Harvest Land Base, and because any detrimental 
effects to northern spotted owl dispersal capability will be spread 
over 50 years during which time ingrowth in the reserves will also be 
occurring. The BLM's revised 2016 RMPs included approximately 177,000 
additional acres (71, 630 hectares) of reserved lands compared to lands 
originally reserved under the NWFP in 1994; these acres contribute 
additional dispersal capability across the management area. These 
factors represent a significant improvement in the capability of the 
landscape to provide for spotted owl movement and dispersal. Given 
these provisions and assurances, in conjunction with all of the other 
considerations discussed in Consideration of Impacts Under Section 
4(b)(2) of the Act, we conclude that the benefits of including these 
Harvest Land Base areas as designated critical habitat are relatively 
minor when compared to the benefits of excluding them.
    The commenter is incorrect in stating that we do not consider 
habitat fitness in our evaluations of effects in section 7 
consultations for the subspecies in the absence of affected designated 
critical habitat. We consult on Federal actions that have effects to 
northern spotted owl habitat even if it is not designated as critical 
habitat, regardless of whether the subspecies currently occupies that 
habitat, and consider this information in our analysis of whether the 
action is likely to jeopardize the continued existence of the 
subspecies. The commenter may be confusing the question of 
``occupancy'' for consideration of whether ``incidental take'' of the 
species will occur. Even if we conclude that a Federal action that

[[Page 62619]]

adversely affects habitat does not result in a ``jeopardy'' finding for 
the species, we must still assess whether the Federal action will 
result in the incidental take of the species. Because ``take'' of the 
species is dependent in part on the Federal action proximately causing 
actual injury to the species, information about the presence or absence 
of the animal during the proposed activity (often referred to in the 
terminology of ``occupied'' versus ``unoccupied'') is particularly 
relevant. In order to evaluate whether a Federal action affecting 
northern spotted owl habitat will incidentally ``take'' that 
subspecies, we consider a number of factors, including habitat effects 
and survey results for the presence of the owl. As a result, in some 
cases we may find that adverse effects to northern spotted owl habitat 
(not designated as critical habitat) will occur, but we are unable to 
conclude with reasonable certainty that the habitat effects will result 
in incidental ``take'' of the owl. See Arizona Cattlegrower's Assn. v. 
U.S. Fish and Wildlife Serv., 273 F.3d 1229 (9th Cir. 2001).
    The commenter is correct that detectability of northern spotted 
owls is reduced when barred owls are present, which led us to endorse 
an updated protocol for surveying for northern spotted owls to take 
this into account (FWS 2012), a protocol that has been upheld on review 
by the courts (Cascadia Wildlands v. Thrailkill, 49 F. Supp. 3d 774, 
779-80 (D. Or. 2014), aff'd, 806 F.3d 1234 (9th Cir. 2015)). Our 
jeopardy analysis considers the effects to habitat regardless of 
occupancy. With the exclusions finalized today, Federal agencies will 
no longer have the obligation to consult on the effect of their actions 
to (formerly) designated critical habitat in the areas excluded. They 
will still be required to consult with us if their discretionary 
actions result in effects to northern spotted owl habitat that remains, 
and they will be precluded from jeopardizing the subspecies as a result 
of that habitat modification. We will also still continue to evaluate 
whether the Federal actions affecting habitat, even if they do not 
jeopardize the subspecies, result in the incidental take of northern 
spotted owls, and if so, will identify reasonable and prudent measures 
and terms and conditions to minimize that incidental take.
    Comment (8): Commenters expressed concern that wildlife provisions 
in the BLM RMPs do not apply in the Harvest Land Base and that the 
exclusion of critical habitat would remove overlapping protections.
    Our response: According to the 2016 BLM RMPs for western Oregon, 
the management objectives and management direction described for 
resource programs (including wildlife) apply across all land-use 
allocations, unless otherwise noted (BLM 2016a, p. 47, BLM 2016b, p. 
47). Regarding overlapping protections, see our response to Comment (7) 
for our rationale for excluding these lands from critical habitat for 
the northern spotted owl.
    Comment (9): Commenters stated that we should consider the impact 
of recent wildfires that have occurred in Washington, Oregon, and 
California on the northern spotted owl and its habitat since the 2016 
BLM RMPs were finalized, and that recent events make the modeling and 
analyses in the RMPs ineffective and obsolete. Commenters noted that 
the number of acres burned has exceeded the number of acres affected by 
wildfire that were modeled for the first decade in the BLM RMPs. 
Commenters further stated that excluding lands from critical habitat 
will lead to more regeneration logging, which will lead to increased 
fuels and uncharacteristic wildfire and that additional critical 
habitat should be designated in order to protect forests from 
regeneration harvest and further the objectives of the final recovery 
plan to provide habitat redundancy and avoid fire hazard.
    Our response: In September 2020, several major wildfires burned 
across portions of the range of the northern spotted owl in Washington, 
Oregon, and California affecting habitat conditions. The fires impacted 
multiple ownerships, including Federal lands managed by the BLM and 
USFS, State lands, and private lands. Although the wildfires that 
occurred during the fall of 2020 had significant impacts to some 
critical habitat units at the local level, the longer term impacts to 
spotted owl conservation will vary depending on fire severity (see our 
discussion in Comment (27b) regarding the use of previously burned 
habitat). Although some subunits have experienced a partial and/or 
temporary reduction in connectivity in places, overall the critical 
habitat units and the rangewide network designated in 2012 will 
continue to provide demographic support and connectivity to the 
northern spotted owl as intended in the 2012 critical habitat 
designation.
    The 2012 critical habitat rule was an increase in designated area 
compared to previous designations, in part to provide for biological 
redundancy in northern spotted owl populations and habitat by 
maintaining sufficient habitat on a landscape level in areas prone to 
frequent natural disturbances, such as the drier, fire-prone regions of 
its range (Noss et al. 2006, p. 484; Thomas et al. 2006, p. 285; 
Kennedy and Wimberly 2009, p. 565). The historical range of the 
northern spotted owl within Oregon, Washington, and California is about 
57 million acres (23 million hectares), including both Federal and non-
Federal (33 million) acres (USDA-USFS and DOI-BLM 1993, p. 23). The 
Northwest Forest Plan area, which was explicitly identified in 1994 to 
encompass the range of the northern spotted owl on Federal lands, is 
approximately 25 million acres (10 million hectares) in size and 
included 19 National Forests, 7 BLM Districts, and other Federal lands. 
The 2012 designation of 9.6 million acres (3.9 million hectares) of 
critical habitat (reduced in this revision to approximately 9.4 million 
acres (3.8 million hectares)) is a parsimonious and scientifically 
appropriate identification of only those lands within these 25 million 
acres (10 million hectares) that are critical to the conservation and 
recovery of the spotted owl.
    The 2012 designation is based upon almost three decades of 
scientific research on the spotted owl. Estimating actual historical 
forested habitat within this range is difficult, but during our 
evaluation of whether to list the northern spotted owl, we concluded 
the best available information was that some 17.5 million acres (7 
million hectares) of ``suitable'' habitat were available to the owl 
historically, before the advent of significant timber harvesting of old 
growth forests (55 FR 26114, June 26, 1990; p. 26151). When we 
initially designated critical habitat for the owl in 1992, we estimated 
that only 7.2 million acres (2.9 million hectares) of this ``suitable'' 
habitat (in this context meaning the types of older, more mature stands 
preferred by the northern spotted owl for nesting, roosting, and 
foraging when available in an area) remained on Federal lands, and most 
of it (60 percent) was in land allocations available for harvest (57 FR 
1796, January 15, 1992; p. 1799). We found in the 1992 critical habitat 
designation that the best available information was that it could all 
be removed within 25-30 years (57 FR 1796, January 15, 1992; p. 1800). 
The critical habitat revision in 2012 was built upon this scientific 
work, while also incorporating the best available updated scientific 
information and taking into account more recent concerns such as the 
barred owl invasion, climate change, and the

[[Page 62620]]

increasing impacts associated with severe wildfire.
    In the development of habitat conservation networks generally, the 
intent of spatial redundancy is to increase the likelihood that the 
network and populations can sustain habitat losses by inclusion of 
multiple populations unlikely to be affected by a single disturbance 
event. This redundancy is essential to the conservation of the northern 
spotted owl because disturbance events such as fire can potentially 
remove large areas of habitat with negative consequences for northern 
spotted owls. The evaluation process used by the Service incorporates 
the recommendations of the Revised Recovery Plan for the Northern 
Spotted Owl (FWS 2011) by addressing spatial redundancy at two scales: 
By (1) making critical habitat subunits large enough to support 
multiple groups of owl sites, and (2) distributing multiple critical 
habitat subunits within a single geographic region. This was 
particularly the case in the fire-prone Klamath and Eastern Cascades 
portions of the range.
    In summary, we acknowledge that the recent wildfires had negative 
impacts on some local northern spotted owl populations and critical 
habitat subunits and that future fires are likely to have additional 
negative impacts. However, the additional exclusions we make here 
represent a relatively small area compared with the designated areas 
that remain, and they do not appreciably diminish the conservation 
value of the designation to the northern spotted owl. These areas that 
remain in the designation will be managed in the long term for northern 
spotted owl conservation under the Northwest Forest Plan (NWFP) (USFS 
and BLM 1994a, USFS and BLM 1994b) and BLM RMPs (BLM 2016a, BLM 2016b) 
and are expected to provide an adequate amount of habitat at the 
listed-entity scale to withstand periodic natural disturbances such as 
wildfire.
    Regarding the comment that exclusions will lead to regeneration 
harvest and subsequent increased fuel load and uncharacteristic 
wildfire, we assume the Harvest Land Base will continue to be managed 
consistent with the management direction defined in the 2016 RMPs. As 
previously stated, we found in our 2016 Biological Opinion on the BLM 
RMPs (FWS 2016, p. 700) that, even with the projected timber harvest in 
the Harvest Land Base land use allocation, the management direction 
implemented under the RMPs is consistent with the Revised Recovery Plan 
for the Northern Spotted Owl (FWS 2011) and would not appreciably 
diminish the conservation value of, nor adversely modify, critical 
habitat (FWS 2016, p. 702).
    The January Exclusions Rule considered that one benefit of 
exclusion could be a lessening of the regulatory burdens for 
discretionary Federal decisions when considering management practices 
to protect forested lands from catastrophic wildfire. See our responses 
to Comments (1) and (27a) regarding section 7 consultation and the 
recommendations in our 2012 critical habitat rule for fuels management 
and dry forest restoration projects.
    Comment (10): A commenter expressed concern that habitat for the 
northern spotted owl will not grow as projected in the Recovery Plan 
and the BLM RMPs due to climate change and the combined effects of 
increased fire, insects, disease, storms, and carbon enrichment. 
Commenters stated that the exclusions will lead to more logging and 
greenhouse gas emissions and that mitigating the risks of climate 
change requires greater conservation of northern spotted owl habitat, 
particularly older forests that store significant amounts of carbon; 
therefore, these additional exclusions should not be made.
    Our response: As mentioned earlier, the 2012 spotted owl critical 
habitat designation was enlarged from previous designations, in part to 
provide increased redundancy in the face of climate change. We analyzed 
climate change and its potential impact on spotted owl recovery in the 
Revised Recovery Plan for the Northern Spotted Owl (FWS 2011). We noted 
the combined effects of climate change and past management practices 
are altering forest ecosystem processes and dynamics (including 
patterns of wildfires, insect outbreaks, and disease) to a degree 
greater than anticipated in the NWFP. The Recovery Plan encourages land 
managers to consider this uncertainty and how best to integrate 
knowledge of management-induced landscape pattern and disturbance 
regime changes with climate change when making spotted owl management 
decisions. The Recovery Plan further recommended an adaptive management 
approach to reduce scientific uncertainties. Recovery Action 5 in the 
Recovery Plan for the Northern Spotted Owl states: ``Consistent with 
[Secretarial] Order 3226, as amended, the Service will consider, 
analyze and incorporate as appropriate potential climate change impacts 
in long-range planning, setting priorities for scientific research and 
investigations, and/or when making major decisions affecting the 
spotted owl'' (FWS 2011, p. III-11). The Recovery Plan acknowledged the 
uncertainty associated with estimating rates of habitat recruitment 
(FWS 2011, p. B-8).
    The BLM RMPs state that if the need for adaptive management to 
address changes in the climate would so alter the implementation of 
actions consistent with the RMPs that the environmental consequences 
would be substantially different than those anticipated in the Proposed 
RMP/Final Environmental Impact Statement, then the BLM would engage in 
additional planning steps and procedures under the National 
Environmental Policy Act (NEPA) (BLM 2016a, p. 111). Additionally, the 
effects of climate change will be considered in the development of 
forest management actions and analyzed in future NEPA analyses and 
section 7 consultations at the project level.
    The BLM may also apply adaptive management by taking additional 
planning steps and NEPA procedures based on information found through 
the monitoring questions (Appendix B) (BLM 2016a, p. 111; BLM 2016b, p. 
133). The late-successional and old-growth ecosystems effectiveness 
monitoring program characterizes the status and trend of older forests 
to answer the basic question: Is implementation of the BLM RMPs 
maintaining and restoring late-successional and old-growth forest 
ecosystems to desired conditions on Federal lands in the planning area? 
(BLM 2016a, p. 116; BLM 2016, p. 138). Effectiveness monitoring reports 
will also include analysis of whether the BLM is achieving desired 
conditions based on effectiveness monitoring questions and, where 
possible, inform adaptive management (BLM 2016a, p. 111; BLM 2016b, p. 
139). As discussed further in our response to Comment (33), we 
established benchmarks in our biological opinion on the BLM's RMPs for 
evaluating the effectiveness of their program.
    In sum, BLM's RMPs are consistent with the Recovery Plan 
recommendations for addressing uncertainty, and provide the tools for 
adaptive management if needed to address effects from climate change. 
The Harvest Land Base exclusions finalized here will not impair that 
adaptability.
    Comment (11): Commenters asserted that our statement in the 
proposed rule that the proposed exclusion provides ``no incremental 
conservation benefit over what is already provided for in the RMPs'' 
conflicts with the Service's prior finding that the owl ``fared very 
poorly''

[[Page 62621]]

on reserves within the NWFP compared to designated critical habitat.
    Our response: The statement concerning ``reserves faring very 
poorly'' in the 2012 critical habitat rule was in reference to a 
modeling scenario where we tested population performance of a potential 
critical habitat designation based on only NWFP reserves. Our 2012 
designation was not based on this modeling scenario. The critical 
habitat designation retains northern spotted owl habitat in reserve 
land-use allocations, and retains northern spotted owl habitat in the 
matrix and some non-Federal public lands that we found essential to the 
conservation of the subspecies. The designation of these lands was 
supported by our statement in the 2012 critical habitat rule: ``In some 
areas, for example the O&C lands, our modeling results indicated that 
those Federal lands make a significant contribution toward meeting the 
conservation objectives for the northern spotted owl in that region, 
and that we cannot attain recovery without them. Likewise, in addition 
to our modeling results, peer review of both the Revised Recovery Plan 
for the Northern Spotted Owl (FWS 2011) as well as our proposed rule to 
revise critical habitat, suggested that retention of high-quality 
habitat in the matrix is essential for the conservation of the 
subspecies. Population performance based on reserves under the NWFP, 
for example, fared very poorly compared to this final designation of 
critical habitat. As described in the section Changes from the Proposed 
Rule, we tested possible habitat networks without many of these matrix 
lands, which resulted in a significant increase in the risk of 
extinction for the northern spotted owl.'' (77 FR 71876, December 4, 
2012; p. 72007).
    We are excluding the portion of O&C lands (approximately 172,712 
acres (69,894 hectares)) allocated by the BLM to the Harvest Land Base. 
The remaining O&C lands under USFS and BLM management (1,209,229 acres 
(489,357 hectares)) are retained within the critical habitat 
designation in this final rule. We have determined that the benefits of 
exclusion of the Harvest Land Base land outweigh the benefits of 
including these areas, and that exclusion of these lands will not 
result in the extinction of the northern spotted owl. See our 
discussion of the benefits of exclusion versus inclusion of Harvest 
Land Base lands in Consideration of Impacts Under Section 4(b)(2) of 
the Act.
    Comment (12): Commenters expressed concern that the BLM RMPs that 
we rely on for our basis for exclusions could be vacated due to current 
litigation and that the protection in place under the 2016 RMPs would 
no longer apply.
    Our response: A district judge in the U.S. District Court for the 
District of Columbia found that the BLM RMPs violate the O&C Act 
because BLM excluded portions of O&C timberland from sustained yield 
harvest (i.e., the BLM allocated some timberlands to reserves instead 
of the Harvest Land Base); see, American Forest Resource Council et al. 
v. Hammond, 422 F.Supp.3d 184 (D.D.C. 2019). Although a decision as to 
remedy has not yet been issued, depending on the final outcome of that 
litigation, the Harvest Land Base might change through court order or 
land use planning by BLM. We have excluded lands based on the BLM RMPs 
as they are, not as they may be modified in the future. See also our 
response to Comment 25(b), below, and our reconsideration of the 
weighing of the benefits of inclusion versus the benefits of excluding 
these lands and our extinction analysis in Consideration of Impacts 
Under Section 4(b)(2) of the Act.
Public Comments on Competition From Barred Owls
    Comment (13): Commenters expressed the importance of preserving 
mature and old-growth forest for spotted owls in light of competition 
with barred owls and stated that the Service has not fully explored how 
much more habitat needs to be conserved to mitigate for northern 
spotted owl habitat occupied by barred owls. Commenters stated that 
reducing critical habitat will increase the probability of competitive 
exclusion and that we should not reduce critical habitat without a 
barred owl management plan in place.
    Our response: In addition to the effects of historical and ongoing 
habitat loss, the northern spotted owl faces a significant and complex 
threat in the form of competition from the congeneric (referring to a 
member of the same genus) barred owl (FWS 2011, pp. I-7 to I-8). 
Franklin et al. (2021) found that spotted owl populations declined 6 to 
9 percent annually on 6 demographic study areas and 2 to 5 percent 
annually on 5 study areas. Applying the annual rates of decline, 
populations dropped to or below 35 percent of the historical population 
on 7 of the study areas, and to or below 50 percent on the remaining 3 
areas over a 22-year period (1995-2017). The presence of barred owls on 
spotted owl territories was the primary factor negatively affecting 
apparent survival, recruitment, and thus the population change, and was 
a contributing factor in our recent determination that the subspecies 
warranted reclassification to endangered status.
    An analysis of occupancy based on northern spotted owl and barred 
owl detections supported the conclusion that barred owl presence has a 
negative effect on northern spotted owls, increasing territorial 
extinction and decreasing territorial colonization of spotted owls. 
While barred owl occupancy was the dominant negative effect on spotted 
owl territory occupancy and population trend, other factors such as 
habitat condition had a weaker, but positive, effect on occupancy and 
trend. These other factors such as habitat were insufficient to reverse 
the negative trend, but suggest the importance of maintaining spotted 
owl habitat on the landscape, even if it is unoccupied, in the face of 
competitive exclusion by barred owls, as noted by Dugger et al. 2011. 
The authors in Franklin et al. (2021) noted that maintenance of habitat 
across the landscape would (1) provide areas available for 
recolonization by northern spotted owls should management actions allow 
for reduction of barred owl populations and (2) facilitate connectivity 
by dispersing northern spotted owls among occupied areas, citing to 
Sovern et al. 2014. The authors stated, ``Our analyses indicated that 
northern spotted owl populations potentially face extirpation if the 
negative effects of barred owls are not ameliorated while maintaining 
northern spotted owl habitat across their range.'' (Franklin et al., 
2021, p. 19)
    The Service conducted experimental removal of barred owls to test 
its efficacy in improving spotted owl demographic performance on four 
study areas spread across the northern spotted owl range in Washington, 
Oregon, and northern California. Peer-reviewed analysis of the 
experiment (Wiens et al. 2021) showed a strong, positive effect of 
barred owl removal on survival of spotted owls in the treated areas and 
a weaker but positive effect on spotted owl dispersal and recruitment. 
The estimated mean annual rate of population change for spotted owls 
stabilized in areas with removals (0.2 percent decline per year), but 
continued to decline sharply in areas without removals (12.1 percent 
decline per year). Barred owl removal had a strong positive effect on 
spotted owl survival, which was the primary factor in stabilizing the 
populations. Barred owl removal also demonstrated a weaker, though 
still positive, effect on recruitment of new spotted owls to the 
territorial populations. This weaker

[[Page 62622]]

response is probably due to the depressed reproduction in recent years 
and the subsequent limited availability of new recruits. The experiment 
demonstrated that barred owl removal can achieve rapid results in 
improving the persistence of northern spotted owls, though effects on 
reproduction and long-term population trend will take a longer period 
of management effort.
    These two analyses (Wiens et al. 2021, and Franklin et al. 2021) 
indicate that, while barred owl presence was the primary and strongest 
driver of spotted owl population trend leading to the rapidly 
decreasing spotted owl populations, habitat availability and quality 
were important components of managing for the survival and recovery of 
spotted owls in the future. The Service is in the process of developing 
a barred owl management strategy, using the information from both of 
these studies.
    Similar to our response above to the comment suggesting the need 
for increased habitat redundancy in the face of catastrophic wildfire, 
we find that the critical habitat designation, which includes more area 
than what was previously designated in 1992 and 2008, is consistent 
with the Revised Recovery Plan for the Northern Spotted Owl (2011) and 
provides for the conservation of northern spotted owls as they face 
growing competition from barred owls. The exclusions we finalize here 
are not of a scale to appreciably affect that approach. See also our 
discussion of our analysis in the biological opinion on BLMs RMPs and 
their approach to barred owl management in our responses to Comments 
(15, 18, and 33).
Other Public Comments
    Comment (14): Commenters asked why regulatory oversight of critical 
habitat is no longer necessary in light of the Service's previous 
position that old-growth reserves of the Northwest Forest Plan ``are 
plan-level designations with less assurance of long-term persistence 
than areas designated by Congress. Designation of Late-Successional 
Reserve) as critical habitat complements and supports the Northwest 
Forest Plan and helps to ensure persistence of this management 
directive over time'' as well as the Service's prior statements that 
critical habitat has significant additional value to listed species 
separate from any value provided by land management plans. Commenters 
further stated that our previous position is in contrast to our 
statement in the proposed rule that these exclusions are to ``clarify 
the primary role of these lands in relation to northern spotted owl 
conservation,'' and ``eliminat[e] any unnecessary regulatory 
oversight.''
    Our response: In this final rule, we are not excluding lands within 
reserve land use allocations from the critical habitat designation. Our 
exclusion of the Harvest Land Base lands managed by BLM is based on new 
information since the December 4, 2012, critical habitat designation 
(77 FR 71876), i.e., the 2016 BLM RMPs and our evaluation of those RMPs 
through the section 7 consultation process. As described earlier, the 
lands we exclude in this final rule were already reviewed for their 
value to long-term spotted owl conservation in the 2016 Biological 
Opinion on the BLM RMPs, and the RMPs provide a robust long-term 
conservation strategy that is consistent with the goals of the 2011 
Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and the 
2012 critical habitat designation.
    The January Exclusions Rule, in justifying the exclusion of 3.4 
million acres (1.4 million hectares), stated that even on excluded 
lands, all discretionary Federal actions and decisions on areas that 
are occupied by the subspecies will be required to undergo section 7 
consultation if such action or decision ``may affect'' the northern 
spotted owl and that such consultation will ensure that the continued 
existence of the northern spotted owl is not jeopardized. See our 
further review of these statements in our response to Comment (3) and 
our reconsideration of the weighing of the benefits of inclusion versus 
the benefits of excluding these lands and our extinction analysis in 
Consideration of Impacts Under Section 4(b)(2) of the Act.
    Comment (15): Commenters stated that when the critical habitat 
designation was originally established, it was understood that much of 
the old forest reserves would require considerable time to recover old-
growth characteristics and support northern spotted owl reproduction, 
having been subject to logging prior to 1990 and that critical habitat 
should not be reduced until the reserve system is fully restored. The 
commenters asserted that much of the occupied habitat in the Harvest 
Land Base would need to be left unlogged during the intervening time, 
to assure an ecologically sustainable continuity of old-growth forest, 
with no significant net loss.
    Our response: In our 2016 Biological Opinion on the BLM RMPs, we 
concluded that there will be a net increase in habitat for northern 
spotted owls during the life of the RMPs due to forest ingrowth 
outpacing harvest, and the RMPs containing more reserve acres and 
habitat than the NWFP (FWS 2016, p. 5). During the first 5 to 8 years 
of the RMPs, the BLM will implement measures to avoid take of northern 
spotted owls until implementation of a barred owl management program 
has begun. In addition, subsequent effects to northern spotted owls 
would be meted out over time in the Harvest Land Base and minimized in 
other land use allocations. These measures in the RMPs will minimize 
near-term negative effects to occupied northern spotted owl habitat in 
the Harvest Land Base as habitat continues to further develop late-
successional characteristics in the reserve land use allocations.
    Comment (16): Commenters stated that our proposal to exclude the 
Harvest Land Base lands ignores the northern spotted owl Recovery Plan 
recommendation to protect older, complex forests on Federal lands west 
of the crest of the Cascades range.
    Our response: We relied on the recovery criteria set forth in the 
Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) to 
determine what is essential to the conservation of the subspecies and 
identified a critical habitat designation that ensures sufficient 
habitat to support stable, healthy populations across the range and 
within each of the 11 recovery units.
    The Revised Recovery Plan for the Northern Spotted Owl relies on 
the NWFP's Late-Successional Reserve network as the foundation for 
northern spotted owl recovery on Federal lands (FWS 2011, p. III-41). 
The revised plan recommended ``continued application of the reserve 
network of the NWFP until the 2008 designated spotted owl critical 
habitat is revised and/or the land management agencies amend their land 
management plans taking into account the guidance in this Revised 
Recovery Plan'' (FWS 2011, p. II-3). BLM's 2016 revision of its RMPs 
fully considered the 2011 Recovery Plan recommendation.
    The BLM RMPs provide protection to older, complex forests through 
the system of reserves. Reserve land use allocations (Late-Successional 
Reserve, Congressionally Reserved Lands and National Conservation 
Lands, District-Designated Reserves, Riparian Reserve) comprise 74.6 
percent (1,847,830 acres (747,790 hectares)) of the acres of BLM land 
within land use allocations (FWS 2016, p. 9). These lands are managed 
for various purposes, including preserving wilderness areas, natural 
areas, and structurally complex forest; recreation management; 
maintaining facilities and infrastructure; some timber harvest and 
fuels management; and conserving lands

[[Page 62623]]

along streams and waterways. Of these lands, 51 percent (948,466 acres 
(383,830 hectares)) are designated as Late-Successional Reserve, 64 
percent of which (603,090 acres (244,061 hectares)) are located within 
the critical habitat designation for the northern spotted owl (FWS 
2016, p. 9). The management objectives on Late-Successional Reserve are 
designed to promote older, structurally complex forest and to promote 
or maintain habitat for the northern spotted owl and marbled murrelet 
(Brachyramphus marmoratus). In this final rule, we are not excluding 
lands within reserve land use allocations from the critical habitat 
designation.
    The January Exclusions Rule stated that ``the correct analysis for 
purposes of section 4(b)(2) is whether the Secretary concludes that the 
specific exclusion of these areas of critical habitat will result in 
the extinction of the species.'' We agree with this statement; however, 
see our reconsideration of the weighing of the benefits of inclusion 
versus the benefits of excluding these lands and our extinction 
analysis in Consideration of Impacts Under Section 4(b)(2) of the Act.
    Comment (17): Commenters expressed concern that excluding critical 
habitat will impede recovery of the northern spotted owl and that we 
should not exclude areas that contain sites with a history of northern 
spotted owl reproduction.
    Our response: In our 2016 Biological Opinion on the 2016 Revised 
BLM RMPs, we found that the conservation needs of the northern spotted 
owl will continue to be met because the BLM's plan is consistent with 
the guidance of the northern spotted owl Recovery Plan, at the 
landscape scale over 50 years, as follows:
     The BLM RMPs will conform to the northern spotted owl 
Recovery Plan, including the location and function of large blocks of 
habitat for reproducing spotted owls and the ability of the landscape 
to support spotted owl movement between those blocks.
     The BLM RMPs will include approximately 177,000 more acres 
(71,629 hectares) of Late-Successional Reserve and Riparian Reserves 
than in the NWFP, which will be managed for the retention and 
development of large trees and complex forests across the RMP 
landscape.
     The BLM RMPs will improve the amount, quality, and 
distribution of nesting habitat on BLM lands over the first 50 years 
modeled under the RMPs through management of these increased reserves.
     The BLM RMPs will facilitate and improve northern spotted 
owl dispersal capability across the landscape through the management of 
the increased reserves.
    Given the management, spatial configuration, and projected 
improvement of habitat in the reserves, we find that excluding the 
Harvest Land Base lands will not preclude recovery of the northern 
spotted owl if the 2016 RMPs are implemented as described. In addition, 
the Indian lands excluded herein represent only 0.21 percent of the 
overall designation; we have found that we can achieve the conservation 
of the northern spotted owl by limiting the designation to other lands.
    The January Exclusions Rule determined that the exclusion of 3.4 
million acres (1.4 million hectares) from the critical habitat 
designation outweighed the benefits of inclusion, and that, based upon 
the best scientific and commercial data available, it did not conclude 
that exclusion of those areas will result in extinction of the 
subspecies. See our reconsideration of the weighing of the benefits of 
inclusion versus the benefits of excluding these lands and our 
extinction analysis in Consideration of Impacts Under Section 4(b)(2) 
of the Act.
    Comment (18): Commenters expressed concern that the downward trend 
in northern spotted owl populations has continued since the 2016 BLM 
RMPs were finalized, and that we should evaluate the 2020 meta-analysis 
(demographic analyses that are performed every 5 years under the NWFP) 
prior to making changes in the critical habitat designation. Commenters 
further expressed concern that we should be conserving more habitat in 
light of the Service's recent finding that the northern spotted owl 
warrants reclassification to endangered status.
    Our response: The most recent meta-analysis, Franklin et al. 
(2021), found that the northern spotted owl continues to suffer a 
significant population decline across its range, due primarily in 
recent years to increasing competition from the invasive and aggressive 
barred owl. Unless barred owls are proactively managed while also 
maintaining northern spotted owl habitat across the range, northern 
spotted owls are likely to become extirpated across portions of their 
range (Franklin et al. 2021, pp. 18-19).
    We find the BLM RMPs provide an approach that minimizes negative 
impacts to spotted owls and offsets these impacts with proactive 
positive actions providing for the long-term survival and recovery of 
the northern spotted owl. When considered in its entirety, 
implementation of the BLM RMPs will have both negative and positive 
effects on the northern spotted owl. Negative impacts will primarily be 
due to resource utilization such as timber harvest on less than one-
quarter of the BLM land base, and other resource programs. Positive 
effects of the plan will accrue due to the following: An increase in 
the total area of protected forest reserves on BLM lands (approximately 
80 percent of BLM ownership); BLM's management of forest habitat to 
increase the rate of development of late-successional conditions; and 
BLM's support for, and cooperation in, the barred owl removal 
experiment and a potential barred owl management program (see our 
response to Comment (13) regarding the completion of the barred owl 
removal experiment and the development of a barred owl management 
program). When aggregating these negative and positive impacts with the 
environmental baseline, it is our conclusion that the impact of the BLM 
RMPs will be a net conservation gain for the northern spotted owl 
during the next 50 years under the plans.
    Over the 50-year life of the BLM RMPs (BLM 2016a, BLM 2016b), there 
will also be a significant net gain over current levels in spotted owl 
habitat largely within reserves that will be managed to maintain and 
produce high-quality spotted owl habitat of the kind preferred by owls 
for nesting, roosting, and foraging when available in an area. This 
increase will provide large blocks of habitat of Federal land capable 
of supporting more than 25 spotted owl pairs. Spotted owl dispersal 
through these areas also will continue to be facilitated and is 
expected to improve over time under BLM's management.
    Although impacts to spotted owl habitat in the Harvest Land Base 
were anticipated, wherever possible those impacts will be spread out 
over time to minimize site abandonment as a barred owl management 
strategy is implemented. Given this, and the landscape of reserves 
providing for blocks of habitat and northern spotted owl movement 
consistent with the recovery needs of the spotted owl, we concluded the 
BLM RMPs will not appreciably diminish the ability of the BLM lands to 
provide for a well-distributed population of owls.
    Because of the expected retention and improvement of northern 
spotted owl populations on BLM lands, the Service concluded that 
implementation of the BLM RMPs would not represent an appreciable 
reduction in the likelihood of survival and recovery of the northern 
spotted owl in the wild due to

[[Page 62624]]

reductions in reproduction, numbers, or distribution (FWS 2016, p. 
624). BLM's commitment to participate in and support a barred owl 
management strategy, combined with the RMPs' allocation of reserves, is 
projected to result in a significant improvement in the northern 
spotted owl population's trend, and in the reproduction, numbers, and 
distribution over projected baseline conditions with no barred owl 
management and no timber harvest.
    Comment (19): Commenters stated that the BLM and Service cannot 
avoid their duties under the ESA simply because the area in question 
involves O&C lands and that section 4(b)(2) exclusions should not be 
used as a tool to circumvent section 7 consultation recommendations.
    Our response: Our rationale for excluding the Harvest Land Base is 
not to circumvent section 7 consultation, nor because the area in 
question involves O&C lands. Rather, we have concluded based on our 
programmatic review in our Biological Opinion on the BLM 2016 RMPs, and 
our experience in project consultations since the BLM 2016 RMPs were 
implemented, that addressing effects to designated critical habitat in 
the Harvest Land Base provides no incremental conservation benefit over 
the conservation already provided for in the BLM RMPs (2016a, 2016b) 
and project-level consultations that still occur regardless of the 
presence of critical habitat. Thus, continuing to designate critical 
habitat in order to require BLM to include effects to critical habitat 
designated in the Harvest Land Base within otherwise triggered, 
project-level consultations is not contributing to the conservation and 
recovery of the subspecies, nor is it an efficient use of limited 
consultation and administrative resources.
    The January Exclusions Rule stated because there will continue to 
be section 7 consultations for discretionary actions in areas where the 
spotted owl occurs, we have concluded that the additional regulatory 
requirement related to review for adverse modification is outweighed by 
other relevant factors. See our response to Comment (3) concerning 
section 7 consultations and our reconsideration of the weighing of the 
benefits of inclusion versus the benefits of excluding these lands and 
our extinction analysis in Consideration of Impacts Under Section 
4(b)(2) of the Act.

Economic Analysis Comments

Comments From Counties
    Comment (20): Several counties requested that the Service undertake 
a new economic analysis to reconsider the economic impacts of the 2012 
designation on local communities and natural resource-based economies.
    Our response: We reviewed the FEA (IEc 2012) conducted for the 
December 4, 2012, critical habitat designation (77 FR 71876) as well as 
additional information submitted during the public comment period. We 
also conferred with the economists who prepared the FEA regarding the 
additional information submitted (IEc 2020). See our response to 
Comment (21) below for further detail. In general, we found that the 
commenters disagree with the Service's incremental methodology used to 
analyze the economic effects of the critical habitat designation for 
northern spotted owl, although that approach was the Service's policy 
at the time and has since been codified in its regulations; see 50 CFR 
424.19(b)). In addition, because the January Exclusions Rule has not 
gone into effect and we are only excluding (i.e., removing) additional 
areas from critical habitat, the economic impact will be further 
reduced from that analyzed in 2012 and a new economic analysis is not 
necessary. Even if the January Exclusions Rule were to go into effect, 
an entirely new economic analysis would not be required for this final 
rule because (1) this rule does not designate any new areas that were 
not included in the 2012 critical habitat designation and analyzed in 
the 2012 FEA; (2) the 2012 FEA estimated potential incremental economic 
impacts of the 2012 designation over a 20-year timeframe, which has not 
yet ended as of the date of this final rule; and (3) the Service has 
considered the updated economic-impact information provided by 
commenters, as discussed more fully below. The Service has fully 
considered the economic impacts of this final rule, consistent with the 
requirements of ESA Section 4(b)(2).
    The January Exclusions Rule stated that our FEA completed in 2012 
(IEc 2012) in combination with a new report prepared by the Brattle 
Group (2020) (Brattle Report) continue to be the best scientific and 
commercial data available; we no longer find this to be the case as 
discussed in our response to Comment (21) addressing IEc's review of 
and our concerns with information contained in the Brattle Report (IEc 
2020, IEc 2021).
    Comment (21): The AFRC (AFRC 2020; AFRC 2021) provided public 
comments requesting that the Service exclude at least 2,515,491 
additional acres (1,017,983 hectares) in addition to the 204,653 acres 
(82,820 hectares) proposed for exclusion. The AFRC provided the Brattle 
Report critiquing our FEA and a supplement to the Brattle Report 
(Brattle supplement) responding to our responses to comments in the 
January Exclusions Rule (The Brattle Group 2021). The Brattle Report 
included updated estimates of the economic impacts of the 2012 rule 
using more recent data and/or different assumptions. The Oregon Farm 
Bureau and Oregon Cattlemen's Association; California Farm Bureau 
Federation; Lewis, Skamania, and Klickitat Counties in Washington; and 
Douglas County in Oregon also cited the Brattle Report and/or 
supplement in their comment letters as justification for additional 
exclusions. We summarize AFRC and other comments pertaining to economic 
analysis issues in the following:
    (a) A focus of the Brattle Report and supplement (referred to as 
reports here) is a review of our analysis of potential timber harvest 
losses attributable to northern spotted owl critical habitat 
designation in 2012. The Brattle reports follow the same analytic 
approach for measuring timber harvest impacts as employed in the 
economic analysis for the critical habitat designation (IEc 2012), but 
use alternative assumptions or updated inputs. These adjustments yield 
the following differences when compared to the results of the FEA (see 
IEc 2020 for more details):
     The number of acres where incremental harvest impacts may 
occur is higher;
     The baseline annual harvest potential is higher;
     The potential reductions in harvest volumes due to the 
impact of critical habitat are larger; and
     The estimated stumpage values are lower.
    As described by IEc in their review of this information (IEc 2020, 
2021), the effect of these changes in inputs by the Brattle reports is 
a higher measure of the negative annualized timber harvest impacts 
across the affected acres, i.e., a projection of greater economic 
effects. The Brattle reports assert that, across 1.7 million acres 
(687,966 hectares), the critical habitat designation greatly diminishes 
harvest and causes losses to the market of between $66.4 million and 
$77.2 million (or between $66.4 million and $85.4 million per the 
supplement) on an annualized basis, and between $753 million and $1.18 
billion (or between $869 million and $1.31 billion per the supplement) 
over 20 years on a net present value (NPV) basis. AFRC and others 
suggest the results of the

[[Page 62625]]

Brattle reports support their request for exclusion of additional acres 
based on economic impacts.
    Our response: We find several issues with the analysis provided in 
the Brattle reports, specifically the assumptions or data used to 
produce the estimate of negative annualized timber harvest impacts due 
to the critical habitat designation, and we do not agree with their 
ultimate conclusions.
    First, the Brattle reports state that the higher number of acres 
where incremental impacts may occur is based upon a review of GIS files 
and other related information. Their estimated acreage of lands 
affected changed considerably between the Brattle Report and 
supplement. However, the supplement provides no clear basis for this 
increase. We asked IEc to review the Brattle reports, and they 
concluded that they could not replicate the result, but determined that 
the magnitude of differences in the acreages identified in the reports 
versus those identified in our FEA are unlikely to substantially alter 
the ranking of potential impacts by subunit. The Brattle reports 
provide retrospective impacts by subunit, but do not provide a 
composite ranking. In contrast, our FEA included an analysis of 
acreages by subunit where impacts may occur, scored these areas by the 
potential extent of impact, and then ranked each subunit according to a 
composite score against all other subunits (see Section 4.3 of IEc 
2012).
    Second, the Brattle reports assume a much higher baseline annual 
harvest potential on USFS and BLM lands (a more than five-fold 
increase) than the best available information indicates is likely. We 
understand that the reports relied on average yields from a short time 
period of harvest data (2018-2020) on lands managed by BLM for moist 
and dry forests and then translated these harvest levels into estimates 
of long-term annual yields across the acres where the reports assume 
incremental impacts may occur. Based on comments from AFRC, the reports 
also assume similar yields on BLM and USFS lands, a standard rotation 
age of 100 years where one percent of the land would be regeneration-
harvested, and one percent would be thinned. The assumptions are at 
best hypothetical and not widely applicable. The BLM and USFS are 
unlikely to have similar yields generally for a variety of reasons, 
including that there is no standard of a 100-year rotation age or one 
percent regeneration harvest used by either agency for all of their 
managed lands. The USFS and BLM apply ``uneven-aged'' stand management, 
rather than ``even-aged'' stand rotations, on many of these areas to 
meet multiple use goals such as wildfire risk reduction, recreation, 
forest restoration, and biodiversity conservation, especially in drier 
portions of the range. In contrast, we based our yield rates on actual 
harvest data provided by the BLM and USFS over an extended period (IEc 
2012). For lands managed by BLM, the FEA used data BLM provided on 30 
years of planned timber harvest by land allocation type (reserve/
matrix), forest conditions (nesting/roosting habitat, predominantly 
younger forests), and harvest type (thinning, regeneration) at the 
critical habitat subunit level. For lands managed by USFS, our FEA used 
projected yield rates provided by the USFS for each critical habitat 
unit.
    Third, the Brattle reports assume an 80 percent reduction in 
harvest volumes due to the critical habitat designation versus the 20 
percent used in the FEA high-impact scenario. The reports indicate that 
the assumption of an 80 percent reduction in harvest volumes is based 
on discussions with AFRC and unspecified comments provided by the USFS 
and BLM on the 2012 economic analysis. As a result, it is unclear on 
what basis the Brattle reports assume an 80 percent reduction in 
harvest volumes. The most likely cause is by improperly conflating the 
impact that the listing of the northern spotted owl in 1990 and other 
economic and logistical factors had on timber harvest with the 
incremental effect of the subsequent designation of critical habitat, 
particularly in areas that are currently unoccupied by the subspecies.
    The Brattle Report also noted that it ``cannot model the timber 
markets that influence the demand for timber in the Pacific Northwest'' 
to test the reasonableness of its assumption concerning timber harvest 
effects (The Brattle Group 2020, p. 17). The potential incremental 
effect of critical habitat on harvest levels was a point of significant 
debate for the 2012 critical habitat designation (see section 4.4.2 of 
the FEA). As IEc notes in its assessment of the Brattle Report, 
``Various land managers, Service experts, and other commenters 
concluded that the direction and magnitude of effect due to critical 
habitat was uncertain, noting that harvest levels could be higher or 
lower depending on a variety of land management considerations and 
harvest factors. In addition, the implementation of timber harvest in 
critical habitat occurs within a complex set of factors, including 
volatility in global demand for wood products, general timber industry 
transformation, and existing regulatory and statutory requirements, 
among other factors.'' The FEA used three separate scenarios, along 
with additional sensitivity analysis to capture this uncertainty and 
the concerns of multiple stakeholders, including BLM and USFS. ``The 
Brattle report does not endeavor to model markets or other factors that 
influence the demand for timber in the Pacific Northwest'' (IEc 2020). 
The Brattle Report did not include a sensitivity analysis to address 
the uncertainty of effects associated with critical habitat.
    Fourth, concerning estimated stumpage values, as IEc noted in their 
review, our FEA ``recognized that prices vary across forest, land 
manager, and year, and that future prices were uncertain. The analysis 
captured annual average prices from Federal timber sales on BLM and 
USFS managed lands between 2000 and 2011. The low-end price ($100 per 
thousand board feet (mbf)) was similar to more recent prices (as of 
2012) from Federal timber sales, which had been below historical 
averages. The higher end was selected to purposely capture the highest 
price received since the year 2000. This high price, therefore, served 
as a conservative approach, meaning it would yield the highest negative 
impacts from any constraints on timber harvest volumes due to critical 
habitat designation. Beyond this range, the 2012 economic analysis 
conducted a further sensitivity analysis based upon a comment received 
from AFRC. In this scenario, an even higher price of $350 per mbf was 
analyzed for its effect and included in the economic analysis. Thus, 
the original range and further sensitivity analysis captured a 
reasonable upper and lower bound of the role of timber prices on 
potential impacts. In contrast, the Brattle report uses similar average 
stumpage prices from similar sources, but only from 2018 to 2020, a 
much shorter time frame. In addition, its price range of $83 to $191 
per mbf is consistent with the price range used in the 2012 report, 
especially when considering the passage of eight years and the general 
market volatility of lumber prices.'' (IEc 2020).
    In sum, the Brattle reports and associated commenters concluded 
that the total effect of these alternative inputs is a higher measure 
of negative annualized timber harvest impacts across the total of 
potentially affected acres compared to what was estimated in the FEA 
(IEc 2012) ($66 to $77 million estimated in the Brattle Report, $66 to 
$85 million in the supplement, versus $6.5 million in the FEA). As 
noted above, the Brattle supplement added the distribution of its 
overall measure of impacts across the designation's subunits. 
Understanding

[[Page 62626]]

relative impacts by discrete areas of critical habitat is a necessary 
aspect of an accurate benefits-weighing process. We note that the 
Brattle reports include additional conclusions, such as effects on 
Gross Domestic Product and employment. However, these conclusions are 
based on the assumptions we discuss above, which are misapplied or 
cannot be confirmed with the methods provided. Therefore, for the 
reasons discussed above, we do not consider the Brattle reports to be 
the best scientific and commercial data available, and we do not agree 
with the conclusions of the Brattle reports and the comments that rely 
on them. More specific analysis of the Brattle reports can be found in 
our record on this rulemaking (IEc 2020, 2021).
    The January Exclusions Rule considered the negative economic 
impacts on rural communities of the critical habitat designation and 
the listing of the northern spotted owl in its weighing of the benefits 
of excluding 3.4 million acres against the benefits of inclusion and 
concluded that the benefits of exclusion outweighed the benefits of 
inclusion. We do not now find these conclusions to be appropriate; see 
our reconsideration of the weighing of the benefits of inclusion versus 
the benefits of excluding these lands and our extinction analysis in 
Consideration of Impacts under Section 4(b)(2) of the Act.
    (b) The Brattle Report included information on annual timber 
harvest levels on Federal lands in 18 counties within California, 
Oregon, and Washington, from 2002 through 2018. The report concluded 
that these data demonstrate that timber harvest in these counties 
declined as a direct consequence of the 2012 critical habitat 
designation.
    Our response: We acknowledge that the listing of the northern 
spotted owl in 1990, in addition to other social and economic factors, 
affected timber industry employment and establishments (Ferris and 
Frank 2021, p. 12). However, we have reviewed the information in the 
Brattle Report and found significant errors and unsubstantiated 
assumptions.
    First, 4 of the 18 counties cited in the analysis (Calaveras, 
Riverside, and Mono in California, and Morrow in Oregon) are located 
outside of the range of the northern spotted owl and do not contain 
designated northern spotted owl critical habitat, so the designation 
would not have impacted timber harvest in these counties. The Brattle 
supplement states that this information was provided for context, 
although it does not explain how referencing this context aids in 
assessment of impacts from the northern spotted owl. In fact, the data 
from these counties document that timber harvest and related economic 
patterns were concurrently volatile in rural counties outside the range 
of the spotted owl, suggesting larger market forces were impacting 
timber markets both within and outside the range of the owl.
    Second, of the remaining 14 counties cited in the report that 
contain some spotted owl critical habitat, the Brattle reports describe 
timber harvest declines occurring in 7 counties somewhere around (i.e., 
proximally before and after) the year 2012, stable or flat trends in 3 
counties, and increased harvest levels in 4 counties. Of the declines 
highlighted by the commenter, several began prior to the designation in 
December 2012, casting doubt on the potential direct impact of the 2012 
designation. Almost all of these counties also show large fluctuations 
in harvest levels between years going back to 2002, indicating that 
there are likely other confounding economic and logistical factors 
influencing these dynamic timber harvest levels aside from the 2012 
critical habitat designation, as described in our response to Comment 
(22).
    Third, the analysis provided charts of harvest decline in specific 
counties within the critical habitat designation. A rapid assessment of 
the same data source cited by the commenter, but evaluating a random 
number of additional counties in Oregon, Washington, and California in 
the range of the northern spotted owl, revealed no discernible pattern 
in timber harvest declines that could reasonably be attributed to the 
2012 critical habitat designation. Some counties experienced general 
increases in timber harvest after 2012, some declined, and some were 
relatively flat when compared to long-term trends. A similar pattern of 
fluctuation exists for individual counties located outside of the range 
of the spotted owl but within Oregon, Washington, and California, as 
well as in other western States. Most of these counties showed wide 
fluctuations in timber harvested on Federal lands, both before and 
after 2012, again indicating the influence of factors other than the 
designation of critical habitat.
    Using the same data source cited by this commenter (with 2019 data 
from BLM and USFS on timber volume offered for sale), we reviewed 
Federal land harvest data in Oregon counties that are within the 
northern spotted owl critical habitat designation. The annual average 
harvest from 2002 through 2012 on all BLM lands in the range of the 
spotted owl was approximately 159 million board feet per year prior to 
the 2012 critical habitat designation. The annual average harvest on 
BLM lands located in the range of the spotted owl from 2013 through 
2019, after the 2012 critical rule was published, was 235 million board 
feet; the total in 2020 was 249 million board feet offered for sale 
(BLM 2021a). Thus, rather than suffering a decline, annual harvest 
appears to have increased substantially subsequent to the 2012 
designation of critical habitat.
    Likewise, the annual average harvest from 2002 through 2012 on USFS 
lands located within the range of the spotted owl was approximately 196 
million board feet per year prior to the 2012 critical habitat 
designation. The annual average harvest on USFS land from 2013 through 
2019, after the 2012 critical rule was published, was 288 million board 
feet. We also reviewed Federal harvest data in Oregon counties outside 
the range of the spotted owl (and therefore in counties with no spotted 
owl critical habitat or obligation for Federal agencies to consult 
under ESA section 7) and saw harvest volume fluctuations similar to 
those in counties located within critical habitat. Based on these data 
it does not appear that designation of critical habitat in 2012 had a 
significant incremental depressive effect on subsequent Federal timber 
harvest.
    Comment (22): Douglas County requested that the Service exclude all 
land within Douglas County from the critical habitat designation due to 
severe and disproportionate economic impacts. The County provided a 
2007 report that discusses the negative economic impacts of reduced 
harvest on Federal lands. Additionally, Douglas County asserted that 
our FEA is flawed with respect to Douglas County and should be revised. 
Among other exclusions that are addressed in Comments (25-28), Douglas 
County requested that all private and State lands, and county lands 
specifically in Oregon, be excluded.
    Our response: The report provided by Douglas County focuses on the 
impact that termination of ``safety net'' payments under the Secure 
Rural Schools and Community Self-Determination Act would have on 
counties in western Oregon. The report discusses reductions in harvest 
on Federal lands in the O&C counties attributable to a range of 
factors, resulting in a loss of revenue sharing that limited county 
budgets and rapid contractions of the wood products sector as logging 
declined and mills closed or reduced shifts. The report, prepared in 
2007, does not discuss impacts of the critical habitat

[[Page 62627]]

designation but describes general pressures on the timber industry.
    In addition, during this same time period, timber-related tax 
revenue flowing to Oregon counties has declined due to large reductions 
in State and local property and severance taxes on private timber 
lands. According to one in-depth analysis, half of Oregon's 18 western 
counties lost more revenue due to tax cuts on private lands than they 
did due to reductions in Federal timber harvest levels (Younes and 
Schick 2020). It is unclear if the Brattle analysis incorporated this 
data into its analysis of net declines in timber revenue to local 
economies.
    Our FEA (IEc 2012) addressed the incremental effects of critical 
habitat within the area proposed for designation for the northern 
spotted owl. Consistent with our practice at the time (now codified in 
regulations) the FEA quantifies the economic impacts that may be 
directly attributable to the designation of critical habitat, comparing 
scenarios both ``with critical habitat'' and ``without critical 
habitat.'' Our incremental analysis did not consider the economic 
impact of changes other than from the proposed revised critical habitat 
designation, and did not evaluate the economic condition or status of 
the timber industry at large. Rather, it addressed the effects related 
to the impacts to Federal agencies and their activities, because 
Federal agencies are the only entities directly subject to the 
requirement to evaluate and consider effects of their actions on 
designated critical habitat.
    Nonetheless, we acknowledged that, ``[m]ultiple forces have 
contributed to the recent changes in the Pacific Northwest timber 
industry. In general, the timber industry is characterized as being 
highly competitive; there is a relatively low degree of concentration 
of production among the largest producers and there is essentially a 
single national price for commodity grades of lumber. In recent 
decades, competition has intensified with increased harvesting in the 
U.S. South and interior Canadian Provinces. New technologies and 
increased mechanization have led to mill closures; generally, less 
efficient mills located near Federal forests have been closed in favor 
of larger, more advanced facilities closer to major transportation 
corridors or private timberlands. In addition, other forces such as 
endangered species protections, fluctuations in domestic consumption, 
shifts in international trade, and changes in timberland ownership, 
have all contributed to changes in the Pacific Northwest timber 
industry'' (IEc 2012, p. 3-17).
    We acknowledge that Douglas County has experienced significant 
economic strain, but we conclude that the economic impacts analysis we 
conducted with the 2012 critical habitat designation remains an 
accurate assessment of the incremental economic effects of the 
designation of critical habitat, and does not provide a basis from 
which to exclude all of the areas of critical habitat currently 
designated in the county.
    Regarding Douglas County's request that we exclude private, State, 
and county lands, there are no private lands designated as critical 
habitat for the northern spotted owl; we primarily relied on Federal 
lands, with a small amount of State and local government lands, to meet 
the conservation needs of the northern spotted owl. We did not 
designate any county lands in Oregon as critical habitat. We did 
designate areas on some State lands in Washington, Oregon, and 
California where Federal lands are not sufficient to meet the 
conservation needs of the northern spotted owl. In our final 2012 
designation, we excluded State parks and natural areas and lands in 
Washington covered by a habitat conservation plan. See our Process for 
Exercising Discretion to Conduct an Exclusion Analysis in Consideration 
of Impacts Under Section 4(b)(2) of the Act.
    Comment (23): One commenter noted that a 2012 economic analysis 
from the Sierra Institute, ``Response to the Economic Analysis of 
Critical Habitat Designation for the Northern Spotted Owl by Industrial 
Economics'' (Kusel and Saah 2012), was not fully considered in the 2012 
designation and that a new economic analysis should be conducted.
    Our response: The Service fully considered the content of the Kusel 
and Saah report and found a great deal of overlap between that economic 
analysis and the FEA contracted by the Service and written by 
Industrial Economics (IEc 2012), even incorporating a summary of the 
Kusel and Saah report (2012) (see our response to Comment (201) in the 
December 4, 2012, critical habitat rule (77 FR 71876, p. 72040)). The 
Service maintains that the FEA conducted for the 2012 critical habitat 
designation (IEc 2012) is the most accurate reflection of the potential 
economic impacts of that designation (77 FR 71876). We have reviewed 
the FEA (IEc 2012) and determined that because we are proposing only to 
exclude (i.e., remove) additional areas from critical habitat and are 
not adding any new areas not included in the 2012 designation, the 
economic impact will be further reduced and a new analysis is not 
necessary.

Environmental Analysis Comments

    Comment (24): Commenters expressed that the Service must conduct a 
NEPA analysis and evaluate the exclusions in a biological opinion 
before finalizing exclusions.
    Our response: It is our position that, outside the jurisdiction of 
the U.S. Court of Appeals for the Tenth Circuit (see Catron County 
Board of Commissioners, New Mexico v. U.S. Fish and Wildlife Service, 
75 F.3d 1429 (10th Cir. 1996)), we do not need to prepare environmental 
analyses pursuant to 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 in Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995).
    Other than a small amount of Indian lands (which were previously 
managed by the BLM), the Service is only excluding lands identified for 
timber harvest under the 2016 BLM RMPs. These RMPs underwent rigorous 
NEPA review, including public comment on the identification of the 
Harvest Land Base lands. The Service then completed a Biological 
Opinion on these RMPs, which included an analysis of the effects of 
proposed timber harvest in designated critical habitat, and concluded 
that timber harvest under the plan would not adversely modify the 
critical habitat. Therefore, consistent with the ruling in Douglas 
County, conducting a NEPA analysis and a biological opinion on the 
proposed exclusions would be redundant, and an inefficient use of 
limited government resources. As we are withdrawing the exclusions 
finalized in the January Exclusion Rule, we make no assessment of 
whether or not a NEPA analysis and biological opinion on those 
exclusions would have been required.

4(b)(2) Exclusions Comments

    The Secretary has discretion whether to conduct an exclusion 
analysis under section 4(b)(2) in accordance with our regulations at 50 
CFR 17.90(c). The Secretary will conduct an exclusion analysis when the 
proponent of excluding a particular area (including but not limited to 
permittees, lessees or others with a permit, lease, or contract on 
federally managed lands) has presented credible information regarding 
the existence of a meaningful economic or other relevant impact

[[Page 62628]]

supporting a benefit of exclusion for that particular area. We provide 
our evaluation of whether commenters requesting the exclusions below 
have provided this credible information in Consideration of Impacts 
Under Section 4(b)(2) of the Act under the section entitled Process for 
Exercising Discretion to Conduct an Exclusion Analysis.
    Comment (25): Commenters variously requested that we exclude all 
O&C lands; all USFS matrix lands; all USFS and BLM lands; BLM lands 
outside the Harvest Land Base; and specifically, all Douglas County 
lands.
    We respond separately to each reason provided for these suggested 
exclusion requests first (except for assertions of economic impacts, 
which are addressed above in response to Comments (20-23)), and then 
provide a collective summary:
    (a) Commenters asserted that critical habitat conflicts with BLM 
and USFS management direction and constrains timber harvest, including 
salvage harvest, on O&C lands and matrix lands.
    Our response: We determined in our section 7 consultation on the 
BLM RMPs that BLM's management direction was consistent with the 
Endangered Species Act and that the actions proposed within the plans, 
including timber harvest in the Harvest Land Base on O&C lands over a 
50-year timeframe, did not result in adverse modification of the 
designated critical habitat. Similarly, our consultations under section 
7 with the USFS for its harvest actions carried out under the NWFP on 
matrix and O&C lands since the 2012 designation of critical habitat 
have resulted in determinations that the actions did not adversely 
modify critical habitat or jeopardize the continued existence of the 
northern spotted owl. Thus, these agencies have not been precluded from 
implementing timber harvests within designated critical habitat; they 
can and do implement harvest actions within critical habitat consistent 
with their management plans. As described in previous responses to 
comments, average annual timber harvest on these lands has actually 
increased after the 2012 designation. Additionally, as an example, in 
response to the 2020 wildfire season, we recently consulted on salvage 
harvest projects in critical habitat in the areas of the Archie Creek 
and South Obenchain wildfires to allow the BLM and the USFS to recover 
the economic value of trees proposed for removal. Critical habitat did 
not impede these projects from going forward nor did it require 
additional project changes to the actions the agencies proposed.
    (b) There are conflicting principles between the O&C Act and the 
Endangered Species Act, and the Service should consider the pending 
court remedy on O&C lands. One commenter suggested that we wait for the 
outcome of that proceeding before revising critical habitat; another 
commenter indicated the court ruling, even without the remedy order, 
supported the exclusion of all O&C lands from designated critical 
habitat.
    Our response: We note that there is ongoing litigation challenging 
BLM's management of O&C lands under the 2016 RMPs (BLM 2016a, 2016b). 
As we described in the proposed rule, one district court has upheld the 
RMPs in challenges asserting non-compliance with the Endangered Species 
Act, a conclusion affirmed by an appellate court (see Pac. Rivers v. 
U.S. Bureau of Land Mgmt., No. 6:16-cv-01598- JR, 2019 WL 1232835 (D. 
Or. Mar. 15, 2019), aff'd sub nom. Pac. Rivers v. Bureau of Land Mgmt., 
815 F. App'x 107 (9th Cir. 2020). In a separate proceeding a district 
judge on the U.S. District Court for the District of Columbia found 
that the BLM RMPs violate the O&C Act because BLM excluded portions of 
O&C timberland from sustained yield harvest (i.e., the BLM allocated 
some timberlands to reserves instead of the Harvest Land Base); see, 
American Forest Resource Council et al. v. Hammond, 422 F.Supp.3d 184 
(D.D.C. 2019). The parties briefed the court on the appropriate remedy, 
but the court has not yet issued an order. We considered this 
information in developing the proposed rule, and sought comment 
specifically on how we should address this information in the rule.
    This final rule is based on the 2016 RMPs as they are, and not as 
they may be modified in the future. The ultimate litigation outcome 
challenging the BLM's management of O&C lands is not certain. We 
acknowledge the potential for future reductions in the BLM reserve 
land-use allocations and changes in the Harvest Land Base. We will 
continue to monitor the litigation and once it has concluded (including 
any land-use planning if undertaken) will assess whether revisions to 
this designation are appropriate to propose. See also our response to 
Comment (6).
    (c) Commenters asserted that O&C lands managed by the BLM and lands 
managed by the USFS should be excluded because the NWFP and RMPs should 
guide management on Federal lands since they are consistent with the 
Revised Recovery Plan for the Northern Spotted Owl (FWS 2011).
    Our response: The Service agrees the NWFP and RMPs guide management 
on Federal lands, as informed by other plans, laws, designations and 
input. Federal land managers are skilled at incorporating a wide 
variety of required inputs and feedback when planning and carrying out 
land management actions, including public comment under the National 
Environmental Policy Act, recommendations from listed species' recovery 
plans, input from the Service and National Marine Fisheries Service 
through the section 7 consultation process, growth and yield models, 
and critical habitat designations, to name just a few. The BLM RMPs 
have undergone section 7 consultation recently, in 2016, with the 2012 
spotted owl critical habitat rule in place and were found to be 
consistent with the Endangered Species Act, including our determination 
that the management direction of the plans is consistent with the 
critical habitat designation.
    In contrast, we have not conducted an updated programmatic review 
of USFS land management plans as was done with BLM plans in 2016. All 
USFS actions carried out under the NWFP since the 2012 designation of 
critical habitat that may affect that habitat have undergone section 7 
consultation on a project-by-project basis and have been found to be 
consistent with the Endangered Species Act. Our January Exclusions Rule 
comment response stated that these consultations were sufficient to 
support exclusion of the USFS land areas because it supported the then-
Secretary's determination that extinction would not result. However, 
without a programmatic-scale look at USFS land management plans we lack 
the updated broad-scale information and assessment of the effects of 
harvest within designated critical habitat that would be necessary to 
sustain additional exclusions of all USFS O&C lands, whether they are 
located in reserves or in areas targeted for timber harvest. See our 
response to Comment (11) concerning the remaining O&C lands in the 
final critical habitat designation. See also our reconsideration of the 
weighing of the benefits of inclusion versus the benefits of excluding 
these lands and our extinction analysis in Consideration of Impacts 
Under Section 4(b)(2) of the Act.
    (d) Commenters stated that non-O&C BLM lands should be excluded for 
ease of administration.
    Our response: We are excluding lands within the BLM Harvest Land 
Base and certain Indian lands in this rulemaking, including some non-
O&C lands managed by BLM. Over 90 percent of

[[Page 62629]]

the Harvest Land Base occurs on O&C lands, but we also included the 
portion of the Harvest Land Base that does not occur on O&C lands in 
this exclusion. See responses to Comments (11) and (16) for an 
explanation of why additional lands managed by BLM are essential to the 
conservation of the northern spotted owl and are thus not being 
excluded.
    (e): Commenters stated that our reliance on the management under 
the BLM RMPs (BLM 2016a, 2016b) as a rationale for excluding the 
Harvest Land Base in those plans should also be applied to considering 
all O&C lands addressed in those plans, and that we should also rely on 
a similar rationale for excluding O&C lands and matrix lands managed by 
the USFS under the protections of the NWFP for exclusions.
    Our response: See our response to Comment (25c) above. 
Additionally, we acknowledge the continuing concern over the inclusion 
of O&C lands in the designation of critical habitat for the northern 
spotted owl. Since the mid-1970s, scientists and land managers have 
recognized the importance of forests located on portions of O&C lands 
for the conservation of the northern spotted owl and have attempted to 
reconcile this conservation need with other land uses (Thomas et al. 
1990, entire). Starting in 1977, BLM worked closely with scientists and 
other State and Federal agencies to implement northern spotted owl 
conservation measures on O&C lands. Over the ensuing decades, the 
northern spotted owl was listed as a threatened species under the Act, 
critical habitat was designated (57 FR 1796, January 15, 1992) and 
revised two times (73 FR 47326, August 13, 2008; 77 FR 71876, December 
4, 2012) on portions of the O&C lands, and a Recovery Plan for the owl 
was completed (73 FR 29471, May 21, 2008, p. 29472) and revised (76 FR 
38575, July 1, 2011). These and other scientific reviews consistently 
recognized the need for large portions of the O&C forest to be managed 
for northern spotted owl conservation while also providing for other 
uses of these lands.
    In 2016, the BLM revised their RMPs providing direction for the 
management of approximately 2.5 million acres (1 million hectares) of 
BLM-administered lands, which includes most of the O&C lands, for the 
purposes of producing a sustained yield of timber, contributing to the 
recovery of endangered and threatened species, providing clean water, 
restoring fire-adapted ecosystems, and providing for recreation 
opportunities (BLM 2016a, p. 20; BLM 2016b, p. 20). The BLM RMPs 
revised the land-use allocations of BLM-managed lands in western 
Oregon. We noted in the Revised Recovery Plan for the Northern Spotted 
Owl (FWS 2011, p. II-3) that the functionality of the critical habitat 
designation on BLM-managed lands and rangewide was anticipated to 
improve, in part as the land management agencies updated their land 
management plans to incorporate the Recovery Plan's recommendations.
    The total Harvest Land Base land use allocation on BLM lands, a 
portion of which is critical habitat and is now being excluded from 
critical habitat, comprises 19 percent (469,215 acres (189,884 
hectares)) of the overall land use allocations described in the RMPs 
and is where the majority of programmed timber harvest will occur (FWS 
2016, p. 9; BLM 2016a, pp. 59-63). Approximately 172,712 acres (69,779 
hectares) of the Harvest Land Base being excluded herein is O&C lands. 
Our analysis of the impacts to the habitat within the Harvest Land Base 
recognized that this land use allocation was not intended to be relied 
upon for demographic support of northern spotted owls (FWS 2016, p. 
553). Thus, through our analysis conducted for the section 7 
consultation for the 2016 RMPs, we have evaluated the role that these 
lands have in the recovery of the northern spotted owl. Based on that, 
we reconsidered the relative value of including them in a critical 
habitat designation.
    The O&C lands that remain within the critical habitat designation 
with this final rule are composed primarily of Late-Successional 
Reserve on BLM and USFS lands, and some forest ``matrix'' lands in 
National Forests where timber harvest was programmed to occur under the 
1994 NWFP. Our modeling results for the 2012 critical habitat 
designation indicated that the O&C lands make a significant 
contribution toward meeting the conservation objectives for the 
northern spotted owl. As described in the section, Changes From the 
Proposed Rule, in the December 4, 2012, critical habitat rule (77 FR 
71876; p. 71888), we tested possible habitat networks without many of 
the BLM (now Harvest Land Base) and USFS matrix lands, which resulted 
in a significant increase in the risk of extinction for the northern 
spotted owl (Dunk et al. 2012, pp. 57-59; Dunk et al. 2019, Figure 8). 
Likewise, in addition to our modeling results, peer review of both the 
Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) as well 
as our proposed rule to revise critical habitat in 2012 indicated that 
retention of high-quality habitat in portions of the matrix is 
essential for the conservation of the subspecies. Thus, while the 
exclusion of the Harvest Land Base acreage as described will not 
jeopardize the subspecies (as assessed in our Biological Opinion on the 
2016 RMPs), the O&C lands and USFS matrix lands that remain within the 
designation remain essential to the conservation of the northern 
spotted owl.
    Comment (26): Commenters requested that we exclude: Areas of 
younger forests; all critical habitat subunits that have 50 percent or 
more younger forests; areas that are not currently occupied by northern 
spotted owls; all unoccupied areas; unoccupied USFS matrix and adaptive 
management area lands; ``habitat capable'' lands; stands under 80 years 
old; and low-quality habitat; and areas described as dispersal habitat. 
We respond separately to these exclusion requests below:
    (a) Commenters asserted that younger forests, including stands 
under 80 years old, areas that are not currently occupied by northern 
spotted owls, and ``habitat capable'' lands do not currently provide 
habitat to the northern spotted owl. Commenters assert that an area is 
not habitat if modification or natural growth is required before it 
could actually support the subspecies. Comments stated that areas of 
younger forests and subunits dominated (greater than 50 percent) by 
younger forests should be excluded and that the benefits of including 
these areas is negligible. Some commenters provided a report and data 
showing areas within the critical habitat designation that had been 
harvested, experienced severe wildfire (see our response to Comment 
27), or are smaller fragmented parcels (see our response to Comment 28) 
(Mason, Bruce and Girard 2021 in AFRC 2021, appendices A-D). Commenters 
stated that even with these exclusions there would still be protections 
for the subspecies due to section 7 obligations.
    Our response: Younger forests are typically the result of past 
timber harvest, wildfire, or some other form of disturbance. Areas of 
younger forest in the critical habitat designation are part of the 
forest mosaic essential for the northern spotted owl. The fact that 
some younger forests may contain few habitat characteristics preferred 
by owls does not mean that such areas are not habitat for the owl--some 
areas may be, others may not be, depending on the site-specific 
characteristics. Nor does the Act preclude designation of areas that 
currently function as habitat for the northern spotted owl but are 
dynamic, such as a forested environment in which younger trees 
naturally grow over time and the area thereby transitions from

[[Page 62630]]

functioning primarily as dispersal or foraging habitat to the 
subspecies' preferred roosting and nesting habitat consisting of older 
stands. The Service's rule does not describe or anticipate 
modifications or natural changes to the designated areas for them to 
qualify as critical habitat or represent current habitat for the 
subspecies; indeed, the regulation explicitly indicates that 
``[n]othing in this rule requires land managers to implement, or 
precludes land managers from implementing, special management or 
protection measures.'' 50 CFR 17.95 (entry for northern spotted owl at 
paragraph 4).
    As to ``occupied'' versus ``unoccupied'' habitat, the commenter may 
be confusing the use of the term ``occupied'' as used when designating 
critical habitat, with the concepts of presence or absence of a species 
in section 7 consultations, which can also refer to the ``occupancy'' 
of the species at the time of the consultation. The two are not the 
same. The Service is required to designate critical habitat based on 
the occupied habitat ``at the time of listing'' which in the case of 
the northern spotted owl was 1990. After 1990, whether or not the 
species ``occupies'' that specific habitat does not dictate whether the 
area is critical habitat. Rather, in our evaluation in a section 7 
consultation for effects of a Federal action on specific designated 
critical habitat, we evaluate the effects to the physical and 
biological features of critical habitat and the post-project 
functionality of the network to provide for connectivity at the 
subunit, unit, and designation scales to ensure the landscape continues 
to support the habitat network locally, regionally, and across the 
designation. This evaluation is not conditional on critical habitat 
being currently occupied. Rather, ``occupancy'' at the time of a 
specific action resulting in a section 7 consultation is generally most 
relevant for assessing whether the proposed Federal action will 
``jeopardize'' the species, or incidentally ``take'' the species. See 
also our response to Comment (3).
    As was explained in the 2012 critical habitat designation, although 
some areas of younger forests may not have been used as nesting habitat 
by northern spotted owls at the time of listing, younger forests are 
often used by owls for dispersal or foraging behavior, both of which 
are essential life functions, and thus are considered as ``occupied'' 
for the purposes of critical habitat designation. Including these areas 
within the designation is beneficial because they provide the physical 
and biological features that currently support owl life functions 
(e.g., dispersal) and contain the habitat elements conducive to 
developing the physical or biological features of the higher-quality 
nesting and roosting habitat (they are of suitable elevation, climate, 
and forest community type over time). While some areas may not be used 
for nesting by spotted owls and may be lacking some element of the 
physical or biological features, such as large trees or dense canopies 
that are associated with the higher quality nesting habitat, these 
areas contain the dispersal and foraging habitat to support movement 
between adjacent subunits and are therefore essential to provide 
population connectivity for the northern spotted owl. In addition, 
northern spotted owls are regularly reproductively successful in home 
ranges that comprise a mosaic of habitat, including older and younger 
forest. Northern spotted owls have in fact been found occupying lower 
quality habitat consisting of younger forested stands, particularly 
when higher quality habitat is not available in the area (Glenn et al. 
2004). The critical habitat designation included younger forests that 
are in proximity to older forests to contribute to northern spotted owl 
occupancy and reproduction.
    In response to ``habitat capable'' lands, see our response to 
Comment (29c) below. In response to continuing section 7 obligations, 
see our response to Comment (3).
    (b) Commenters stated that the description of dispersal habitat is 
unclear and that the Recovery Plan for the Northern Spotted Owl (FWS 
2011) states that dispersal needs have not been thoroughly evaluated 
and therefore dispersal habitat is not determinable. Commenters further 
stated that habitat that does not meet a minimum threshold of 11 inches 
(in) (28 centimeters) (cm) diameter at breast height (dbh) does not 
meet the definition of dispersal habitat.
    Our response: There are sufficient data and scientific information 
to include dispersal habitat as a habitat type for northern spotted owl 
critical habitat. Ideally, dispersal habitat consists of higher-quality 
nesting, roosting, and foraging habitat, but in cases where the 
landscape does not support those habitat types, spotted owls will 
disperse through younger habitat as described in the 2012 critical 
habitat rule (FWS 2012, p. 71907). The Service focused on defining the 
lower limit for forest stands that support the transient phase of 
northern spotted owl dispersal as stands ``with adequate tree size and 
canopy closure to provide protection from avian predators and minimal 
foraging opportunities'' (FWS 2011, p. A-8). Corridors that contain 
these minimum characteristics for dispersal habitat, such as forested 
corridors through fragmented landscapes, serve primarily to support 
relatively rapid movement through such areas, rather than colonization 
(FWS 2012, p. 71901). In general, these areas contain trees with at 
least, but not limited to, 11 in (28 cm) dbh and a minimum 40 percent 
canopy cover. For instance, northern spotted owls will also disperse 
though non-forested areas, such as clearcuts, although they use them 
less than expected based on availability (Miller et al. 1997, p. 145).
    The risk of dispersing through a landscape of minimum or lower 
quality dispersal habitat is not well understood. Buchanan (2004, p. 
1341) evaluated this risk, concluding that ``strategies for management 
of spotted owl dispersal habitat may not produce conditions preferred 
by spotted owls and may result in dispersal-related mortality (due to 
starvation or predation) or other consequences that negatively 
influence juvenile recruitment.'' The relative effect to spotted owls 
dispersing though a lower-quality stand and landscape is the issue that 
has not been ``thoroughly evaluated or described'' (FWS 2011, p. vi), 
as opposed to the value of dispersal habitat generally for northern 
spotted owls. Mortality rates of juvenile dispersal exceed 70 percent 
in some studies, with known or suspected causes of mortality during 
dispersal including starvation, predation, and accidents (FWS 2011, p. 
A-7).
    In addition to assisting with dispersal in support of northern 
spotted owl life functions, young stands also assist in addressing the 
long-term viability and recovery of the owl. Habitat loss and 
degradation were identified as major threats to the northern spotted 
owl at the time of listing, and conservation and recovery of the 
subspecies are dependent in part on the development of currently low-
quality habitat into high-quality habitat to allow for population 
growth and recovery (77 FR 71876; p. 71917). Younger forests that meet 
the dispersal characteristics described in the 2012 designation provide 
for this environment as the stands age and develop the complex 
structural components of that higher quality habitat. To summarize, 
there is a clear biological need for young forests to contribute to 
spotted owl recovery both as dispersal habitat and as future breeding 
habitat to support population growth and recovery. Ideally, dispersal 
habitat consists of a large percentage of older habitat on the 
landscape, but younger stands also support movement

[[Page 62631]]

and are necessary where older habitat is lacking. Additionally, 
dispersal habitat is a biological need of the subspecies due to the 
need for successional development to supply additional older, higher-
quality habitat to address past and future habitat loss within critical 
habitat.
    Comment (27): Commenters requested that we exclude all California 
lands, areas of high or moderately high fire hazard risk or fire-prone 
forests, entire subunits in fire-prone areas, dry forest in California, 
dry forest in the Eastern Washington Cascades, areas that have 
experienced high-severity wildfire, and previously burned Late-
Successional Reserve, citing the following rationale:
    (a) Commenters stated that a conflict exists between critical 
habitat and management objectives for fuels reduction and active 
management, and that wildfire suppression costs are immense. They 
asserted that exclusion of certain lands would facilitate density 
management, dry forest restoration, and fuels reduction on the most 
vulnerable acres and prevent loss of northern spotted owl habitat.
    Our response: In the 2012 critical habitat rule, the Service 
accounted for the drier provinces and parts of the range and recognized 
that forest management needs to be tailored to the forest type and 
climatic conditions, including the dry forests in California and the 
Eastern Washington Cascades. As part of the critical habitat rule, the 
Service expressly encouraged land managers to consider implementation 
of active forest management, using ``ecological forestry'' practices, 
to restore natural ecological processes where they have been disrupted 
or suppressed (e.g., natural fire regimes). This flexibility is 
provided to reduce the potential for adverse impacts associated with 
commercial timber harvest when such harvest is planned within or 
adjacent to critical habitat and consistent with land-use plans (77 FR 
71876; p. 71877).
    On page 71908 of the December 4, 2012, critical habitat rule (77 FR 
71876), we stated that, in drier, more fire-prone regions of the owl's 
range, habitat conditions will likely be more dynamic, and more active 
management may be required to reduce the risk to the essential physical 
or biological features from fire, insects, disease, and climate change, 
as well as to promote regeneration following disturbance.
    The Service recognizes that land managers have a variety of forest 
management goals, including maintaining or improving ecological 
conditions where the intent is to provide long-term benefits to forest 
resiliency and restore natural forest dynamic processes (FWS 2011, III-
45).
    The Service has consulted under section 7 with Federal agencies on 
their fuels reduction, stand resiliency, and pine restoration projects 
in dry forest systems within the range of the northern spotted owl. For 
example, we have consulted with the BLM and the USFS on such actions in 
the Klamath Province of southern Oregon. The proposed actions may 
include treatment areas that reduce forest canopy to obtain desired 
silvicultural outcomes and meet the purpose and need of the project, 
including timber production. They can also promote ecological 
restoration and are expected to reduce future losses of spotted owl 
habitat and improve overall forest ecosystem resilience to climate 
change. We have to date concluded in these consultations that the 
actions do not adversely modify critical habitat. Thus, active 
management to reduce wildfire risk can and has been undertaken in 
designated critical habitat.
    In the 2012 critical habitat rule, we repeatedly reference the need 
for and appropriateness of conducting forest health treatments in 
spotted owl habitat, including designated critical habitat. Likewise, 
the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) 
encourages application of active forest management within spotted owl 
habitat to address forest health, wildfire risk, and impacts of climate 
change. Lastly, the 2016 Biological Opinion on the BLM's 2016 RMPs 
generally supports this need as well.
    In sum, there are almost always conflict and tradeoffs when 
conducting silvicultural projects that disturb existing forest stands. 
Spotted owl habitat conservation is just one of these tradeoffs; others 
include water quality, recreation, carbon sequestration, aesthetic 
values, economic opportunity, safety, and fire risk, to name a few. The 
2012 critical habitat rule and other documents prepared by the Service 
both before and after 2012 provide support for evaluating these 
tradeoffs and, where appropriate, proceeding with fuels management 
projects within critical habitat (Henson et al. 2013). The commenters' 
assertion that critical habitat conflicts with management objectives 
for fuels reduction and active management is overstated; therefore, we 
find this rationale does not support consideration of exclusion of 
additional lands.
    (b) Commenters requested the exclusion of burned areas to allow 
reforestation and fuels treatments to occur, stated that fire-dependent 
landscapes should be excluded because critical habitat does not benefit 
conservation or forest management in these areas. Commenters also 
stated that areas that have experienced high-severity burns no longer 
provide habitat for the northern spotted owl.
    Our response: Northern spotted owls use previously burned areas for 
foraging and nesting/roosting depending on the habitat conditions post-
fire (Gaines et al. 1997, King et al. 1998, Bond et al. 2002, Jenness 
et al. 2004; Clark 2007; Bond et al. 2009, Clark et al. 2011; Roberts 
et al. 2011; Lee et al. 2012; Clark et al. 2013; Bond et al. 2016; 
Jones et al. 2016; Bond et al. 2016; and Eyes et al. 2017). For 
example, in southwestern Oregon, spotted owls used areas that burned at 
all levels of burn severity, although they preferred areas that were 
unburned or burned at low to moderate severity (Clark 2007, pp. 111-
112). Spotted owls use all burn severities and fire-created edges at 
different spatial scales, although the use may change over time and be 
dependent on proximity to existing high-quality nesting, roosting, and 
foraging habitat where protective cover and structural complexity were 
not as affected by fire.
    In addition, the critical habitat rule provides the flexibility to 
conduct fuel treatments and reforestation activities, whose 
contribution to northern spotted owls will be amplified when conducted 
consistent with Recovery Action 12 (FWS 2011, p. III-49): ``In lands 
where management is focused on development of spotted owl habitat, 
post-fire silvicultural activities should concentrate on conserving and 
restoring habitat elements that take a long time to develop (e.g., 
large trees, medium and large snags, downed wood).''
    Additionally, natural disturbance processes, especially in drier 
regions, likely contribute to a pattern in which patches of habitat in 
various stages of suitability shift positions on the landscape through 
time. Sufficient area to provide for these habitat dynamics and to 
allow for the maintenance of adequate quantities of suitable habitat on 
the landscape at any one point in time is, therefore, essential to the 
conservation of the northern spotted owl. The recent loss of older 
habitat due to the 2020 and 2021 wildfires underscores the need for 
biological redundancy in the critical habitat designation to 
accommodate these habitat changes over time. We do not remove these 
areas from the designation when these changes occur, we anticipated 
this shift in suitability in the overall design of the critical habitat 
network.
    Because northern spotted owls use burned areas, and because 
management

[[Page 62632]]

activities such as reforestation may still occur within designated 
critical habitat, we do not agree with the commenter and find there is 
not sufficient credible information and rationale to support 
consideration of exclusion of burned areas from the designation. 
Additionally, the conservation of the northern spotted owl relies on a 
forested landscape that is provided for in the critical habitat 
designation and the designation of these areas benefits the subspecies 
by ensuring that the special management considerations identified in 
the 2012 critical habitat rule are considered in the design and 
implementation of forest management actions. We recognize that some 
areas may decrease or increase in habitat quality over time based on 
disturbance events and natural growth. These habitat changes are 
inherent to a forest mosaic and were considered in our overall critical 
habitat designation.
    (c) Commenters asserted that ``habitat capable'' lands do not meet 
the definition of critical habitat.
    Our response: We did not include lands described as ``habitat 
capable'' in the final critical habitat designation (77 FR 71876). We 
did include areas that contain dispersal and foraging habitat to 
support movement between adjacent subunits that we determined are 
essential to provide population connectivity. Many of these areas are 
also anticipated to develop into older and more complex habitat 
preferred by nesting pairs in the future. We note that various agencies 
may refer to ``capable habitat,'' but we did not describe or designate 
``capable habitat'' in the designation. We used the term ``capable'' in 
several portions of the 2012 designation to describe habitat areas that 
are already providing some function to support spotted owl life history 
(e.g., dispersal), but that are also capable and likely to develop into 
higher quality habitat that northern spotted owls prefer for additional 
life functions, such as nesting, roosting, or foraging, over time.
    Comment (28): Commenters requested that we exclude areas of less 
than 3,000 contiguous acres (1,214 hectares) and smaller, fragmented 
parcels because areas these small cannot support northern spotted owls.
    Our response: Northern spotted owl home ranges (also referred to as 
home territories) vary in size across the range of the subspecies from 
about 3,000 acres (1,214 hectares) in the southern part of the range to 
more than 9,000 acres (3,642 hectares) in Washington. Northern spotted 
owl home ranges comprise forested landscapes that are generally a mix 
of high-quality habitat with other forest types, disturbed areas, and 
openings. Data from southern Oregon indicate that northern spotted owl 
productivity and survival is at its zenith when the home range 
comprises less than 100 percent mid- and late-seral forests and is 
mixed with some early-seral and non-forest (Olson et al. 2004, p. 
1050), and northern spotted owls can reproduce successfully in home 
ranges that contain well less than 100 percent nesting and roosting 
habitat. This finding indicates northern spotted owl occupancy relies 
on a mix of forests and age classes within their home ranges.
    Recovery Action 10 in the Revised Recovery Plan for the Northern 
Spotted Owl (FWS 2011) recommends prioritizing known and historical 
northern spotted owl sites for reproducing owls when the site condition 
includes greater than 40 percent high-quality nesting/roosting habitat 
in the provincial home range (e.g., 1.3-mile radius) and greater than 
50 percent high-quality nesting/roosting habitat within the core home 
range (e.g., 0.5-mile radius) (FWS 2011, p. III-44). In addition, 
critical habitat is designed to provide for the maintenance of habitat 
conditions to support northern spotted owl occupancy over time, so 
areas that today contain less than an entire home range of contiguous 
high-quality habitat increasingly provide value as they develop more 
complex and high-quality characteristics over time. The areas of less 
than 3,000 contiguous acres (1,214 hectares) and smaller, fragmented 
parcels that are designated critical habitat are generally located in 
close, if not adjacent, proximity to other habitat within and outside 
the designation and in a spatial configuration that provides for 
dispersal across the landscape. Given the topographic, geologic, and 
microclimatic variation in these landscapes, it is normal for there to 
be some diversity of fragmented and heterogenous habitat conditions 
with these critical habitat areas. These areas also provide the 
redundancy built into the critical habitat designation that is 
necessary given the threats of wildfire and insect losses, particularly 
in the dry forest provinces.
    In sum, these areas provide a sufficient amount of habitat to 
support northern spotted owl home ranges, and dispersal. Because we 
find that areas of less than 3,000 contiguous acres and the smaller, 
fragmented areas designated are able to support northern spotted owls, 
we are not considering excluding these areas. See also Consideration of 
Impacts Under Section 4(b)(2) of the Act.
    Comment (29): Commenters requested that we exclude the White Pass 
Ski Area in Washington to avoid any ambiguity because this acreage does 
not function as northern spotted owl habitat.
    Our response: We addressed ski areas in the December 4, 2012, rule 
under Comment (186) (77 FR 71876; p. 72035): Although ski areas are 
found on a very small proportion of the Federal forested lands in the 
Pacific Northwest, our analysis found the lands associated with some 
ski areas can provide essential northern spotted owl habitat to the 
critical habitat network. Because of the value of the habitat found 
around ski areas on Federal lands, impacts to northern spotted owl 
habitat in these areas are currently subject to the section 7 
consultation process for effects to northern spotted owls. Our 
experience shows that ski area development actions generally tend not 
to conflict with northern spotted owl and critical habitat conservation 
needs, so we do not anticipate any significant regulatory burden 
associated with the continued designation of these lands as critical 
habitat. Removing lands managed under ski area special use permits 
would increase fragmentation of the critical habitat network and 
potentially continuous tracts of northern spotted owl habitat. 
Therefore, there is a greater benefit to the subspecies associated with 
retaining habitat located around and adjacent to ski areas in the 
critical habitat designation.
    Additionally, as noted in the 2012 critical habitat rule (77 FR 
71876; p. 72052), critical habitat does not include: (i) Humanmade 
structures (such as buildings, aqueducts, runways, roads, other paved 
areas, or surface mine sites) and the land on which they are located. 
We interpret this to mean that the developed portion of ski areas would 
fall within this exception.
    The January Exclusions Rule found that the benefit of excluding the 
White Pass Ski Area due to economic impacts outweighed the benefit of 
inclusion. However, we noted in the FEA (IEc 2012, p. 1-7) completed 
for the 2012 critical habitat rule that ski area development actions 
generally tend not to conflict with spotted owl and critical habitat 
conservation needs, and thus, upon reconsideration, we do not 
anticipate any significant regulatory burden associated with the 
designation of these lands as critical habitat (IEc 2012). No 
information or evidence was presented by the commenters to indicate 
that the critical habitat designation does or will impair the ski 
area's current operations, nor that it will unreasonably restrict any 
future expansion of the ski area given the small footprint and 
potential impacts within critical habitat. In sum, developed ski areas 
meet the

[[Page 62633]]

definition of areas narratively excepted from critical habitat 
designation as described above; if in the future the ski area proposes 
to expand into critical habitat areas, we will continue to work with 
the USFS and the ski area to efficiently address special management 
considerations in the operation of the ski area.
    Comment (30): Certain Tribes requested that Federal lands within 5 
miles (8 kilometers) of Indian land be excluded from critical habitat 
due to economic impacts, the need to maintain road infrastructure to 
access Indian land in checkerboard ownership, and to provide greater 
management flexibility to maintain forest health and prevent wildfires.
    Our response: The Service recognized in the 2012 critical habitat 
rule the need to actively manage forests, particularly in the drier 
provinces, to increase their resiliency to wildfires, including ladder 
fuels reduction, uneven age management, and prescribed burning. This 
recognition includes the forests that are within 5 miles (8 kilometers) 
of Indian lands. Existing roads are not considered critical habitat; 
thus, the designation should not hinder road maintenance anywhere, 
including access across Federal lands. Likewise, the Service concludes 
potential incremental economic impacts remain very low, as discussed in 
previous responses to comments, above. In sum, the critical habitat 
designation does not preclude active management or road maintenance of 
the lands adjacent to Indian lands, and we find that the commenter did 
not provide credible information to support consideration of exclusion 
of additional Federal lands adjacent to Indian land.
    Comment (31): Commenters requested that we exclude Adaptive 
Management Areas and Experimental Forests because placing additional 
constraints on actions in these areas will limit the ability to conduct 
scientifically credible work and address wildfire risks.
    Our response: The opportunities for scientific research and 
management experimentation associated with experimental forests and 
Adaptive Management Areas lend themselves to putting into practice the 
types of timber management the critical habitat rule recommends, 
thereby serving as a type of field laboratory to try new and 
alternative approaches that could prove useful in applying those 
approaches across a greater landscape. Additionally, there is enough 
flexibility built into the recommendations in the critical habitat rule 
that experimental forests and Adaptive Management Areas can continue to 
conduct their valuable work on their landscapes. We have completed 
section 7 consultations on actions carried out on Adaptive Management 
Areas since the 2012 designation of critical habitat that may affect 
that habitat and found those actions to be consistent with the Act. 
Additionally, our evaluation in the 2012 critical habitat rule found 
that the seven experimental forests included in the designation contain 
high-value occupied habitat for northern spotted owls within their 
borders. In many cases, the habitat in these experimental forests 
represents essentially an island of high-value habitat in a larger 
landscape of relatively low-value habitat; this is especially true in 
the Coast Range, a region where peer reviewers particularly noted a 
need for greater connectivity and preservation of any remaining high-
quality habitat. See our response to Comment (27a) regarding perceived 
conflicts between the critical habitat designation and active forest 
management that addresses the risk of wildfire.
    Comment (32): Commenters asserted that because the barred owl is 
now widespread and competes with the northern spotted owl, the 
designated critical habitat lacks the biological features necessary to 
restore northern spotted owl breeding populations and recover the 
subspecies and thus should be excluded. Commenters stated that it is 
unlikely the Service will have the financial and logistical capacity to 
effectively manage barred owls on all designated critical habitat.
    Our response: Although Franklin et al. (2021, p. 15) found that 
barred owl competition is the dominant negative effect on northern 
spotted owl populations, the authors recognized that habitat loss due 
to harvest, wildfire, and climatic changes may also continue to 
negatively affect populations. They emphasized the importance of 
addressing barred owl management and maintaining habitat across the 
range of the northern spotted owl regardless of current occupancy to 
provide areas for recolonization and dispersal (Franklin et al. 2021, 
p. 18). Although the January Exclusions Rule emphasized barred owls as 
the primary threat to the northern spotted owl, addressing both the 
threat of competition with barred owls and habitat loss is important to 
the survival and recovery of the northern spotted owl. The Service is 
currently developing a barred owl management strategy to help reduce 
the effect of barred owls on northern spotted owls. But, a successful 
barred owl management strategy will be possible only if sufficient 
habitat for the northern spotted owl remains available for recovery.
    Forest conditions that support northern spotted owls remain 
important even when those areas are also occupied by barred owls. Some 
northern spotted owls continue to occupy their traditional sites even 
in areas of dense barred owl populations, although they may modify 
their use of the area and expand their territories. Therefore, habitat 
remains vital to support these individuals.
    The essential physical or biological features in terms of forest 
condition remain present even if not being used currently by 
territorial spotted owls because of the presence of barred owls. See 
the primary constituent elements listed in the December 4, 2012, 
revised critical habitat rule for a description of the physical or 
biological features that are essential to the conservation of the 
northern spotted owl (77 FR 71876; p. 72051).
    Concerning the capacity to effectively manage barred owls, 
management actions will likely be shared by several Federal agencies as 
all Federal agencies have a responsibility in the recovery of listed 
species. Thus, any barred owl management will not be dependent solely 
on the financial and logistical capacity of the Service alone.

Comments on July 20, 2021, Proposed Rule

    We have incorporated comments received on the July 20, 2021, 
proposed rule in the preceding comments sections where comments were 
similar to comments received on the August 20, 2020, proposed rule. In 
this section, we summarize and respond to the remaining comments 
received on the July 20, 2021, proposed rule.
    Comment (33): Conservation groups commented that we should not 
exclude the Harvest Land Base lands given that recent annual demography 
reports indicate that management under the 2016 RMPs is not reversing 
the downward trend in northern spotted owl populations and that the 
RMPs have yet to demonstrate results.
    Our response: The Harvest Land Base lands represent a very small 
fraction of the total designated critical habitat (approximately two 
percent), and the harvest that is anticipated to occur on these lands 
is expected to have a relatively small incremental impact on long-term 
northern spotted owl recovery for several reasons. In the near term, 
direct take of spotted owls will be minimized or avoided. In the long 
term, harvest on these lands will be meted out over several decades. 
During this timeframe we expect habitat conditions

[[Page 62634]]

on BLM's reserve lands to continue improving through natural 
recruitment and recovery. Thus, at a landscape level and over the 
decades, the remaining critical habitat on BLM and neighboring USFS 
lands will provide for spotted owl recovery.
    In our July 20, 2021, proposed rule, we stated that ``[m]onitoring 
will assess status and trends in northern spotted owl populations and 
habitat to evaluate whether the implementation of the RMPs is reversing 
the downward trend of populations and maintaining and restoring habitat 
necessary to support viable owl populations (BLM 2016a).'' 
Effectiveness monitoring under the RMPs occurs every 5 years in 
conjunction with the effectiveness monitoring program established under 
the NWFP. The most recent demographic meta-analysis (Franklin et al. 
2021) provided trend data for northern spotted owl populations from 
1993 through 2018 (see the results summarized in Comment (13)), and the 
effectiveness monitoring report for northern spotted owl habitat is due 
to be released later this year. Thus, Franklin et al. (2021) captures 
only 2 years of RMP implementation, and this is not a meaningful 
timeframe over which to evaluate the effectiveness of the BLM's 
implementation of the RMPs. We established benchmarks in our biological 
opinion on the RMPs for evaluating effectiveness of their program; 
these benchmarks are based on three triggers for reinitiation of the 
consultation on the RMPs: If a barred owl management strategy and 
monitoring program does not begin on BLM lands by year 8 of the RMP 
implementation; if decadal limits for northern spotted owl territorial 
abandonment are exceeded; and if certain benchmarks for the rate of 
northern spotted owl population change on BLM lands are not met. The 
first benchmark for evaluating whether the plan has met the population 
change trigger will occur in 2029 when the first demographic analysis 
will be completed following implementation of a barred owl management 
strategy.
    Comment (34): Conservation groups commented that we should not 
exclude the Harvest Land Base because critical habitat benefits the 
northern spotted owl as an essential tool for recovery that mandates a 
higher habitat conservation standard in section 7 consultation and 
provides guidance on the location of areas that are essential to the 
conservation of the northern spotted owl. They provided scientific 
literature (Taylor et al. 2005) that supports the effectiveness of 
critical habitat and found that species with a critical habitat 
designation are less likely to decline and more likely to recover than 
species without a critical habitat designation.
    Our response: We agree with the commenters that critical habitat 
provides these benefits to the northern spotted owl, and we have 
considered these benefits in our weighing of the benefits of inclusion 
versus the benefits of exclusion of the Harvest Land Base lands. See 
our reconsideration of the weighing of these benefits and our 
extinction analysis in Consideration of Impacts Under Section 4(b)(2) 
of the Act.
    Comment (35): Conservation groups, in expressing opposition to our 
exclusion of the Harvest Land Base lands, commented that our 2016 
Policy Regarding Implementation of Section 4(b)(2) of the Endangered 
Species Act directs the Service to prioritize the designation of 
critical habitat on Federal lands because of the affirmative 
conservation mandate Federal agencies have to utilize their authorities 
in furtherance of the purposes of the Act and to insure that any 
actions they authorize, fund, or carry out do not destroy or adversely 
modify critical habitat; and that exclusions from critical habitat are 
to focus on non-Federal lands. Commenters further stated that the 
Service failed to explain how these exclusions will not result in a 
significant increase in the risk of extinction.
    Our response: Although the 2012 critical habitat designation 
preceded the 2016 Policy Regarding Implementation of Section 4(b)(2) of 
the Endangered Species Act, we prioritized Federal lands in our 
designation: 97 percent of the 9.5 million acres (3.8 million hectares) 
designated are on Federal lands. The policy states that we would focus 
our exclusions on non-Federal land, but the policy did not preclude us 
from excluding Federal lands. As we stated in response to a comment on 
this issue in the 2016 policy, in most cases the benefits of inclusion 
will outweigh those of exclusion on Federal lands but there may be 
cases where that is not the case and exclusions of Federal land would 
be the outcome of the exclusion analysis. In any case, in adopting new 
regulations regarding section 4(b)(2) in December of 2020, we 
eliminated the presumption that we will not generally exclude Federal 
lands from critical habitat, and added provisions in support of 
considering such exclusions under 50 CFR 17.90(d)(1)(iv). See 85 FR 
55398 at 55402 and 85 FR 82376 at 82382. Although the Department of 
Interior proposed to rescind those regulations on October 27, 2021 (86 
FR 59346), they remain in effect until the Service takes final action 
on the proposal. We provide our exclusion analysis and analysis of the 
risk of extinction regarding exclusion of the Harvest Land Base lands 
in our Consideration of Impacts Under Section 4(b)(2) of the Act.
    It is important to note that, in proposing this exclusion, the 
Service considered the very specific circumstances of the 2016 RMPs 
developed by BLM pursuant to its authorities and responsibilities, 
including under the O&C Act, as well as our commitment to consider 
exclusions in the settlement of litigation regarding the 2012 critical 
habitat rule. Therefore, the Service does not consider the exclusion of 
Federal lands in this final rule to set precedent for other Federal 
lands.
    Comment (36): Conservation groups commented that the Service did 
not support the conclusion that the Harvest Land Base lands provide a 
relatively low level of short-term conservation value that is not 
similar or equal to that of the Late-Successional Reserve and that 
section 7 consultation would provide no incremental conservation 
benefit over what the RMPs themselves provide. Additionally, commenters 
suggested that our statement that maintaining critical habitat in the 
Harvest Land Base sends a confusing message to the public is arbitrary 
and capricious because Congress did not intend for the Service to 
ignore the purpose of the Act to avoid confusion.
    Our response: The Harvest Land Base land use allocation is where 
the majority of BLM's programmed timber harvest will occur. Harvest in 
this area is meted out over time and minimized in other land-use 
allocations in order to minimize near-term negative effects to northern 
spotted owl habitat in the Harvest Land Base as habitat continues to 
further develop late-successional characteristics in the reserve land 
use allocations. Our analysis conducted for the section 7 consultation 
for the 2016 RMPs recognized that this land-use allocation, contrary to 
the reserves, was not intended to be relied upon for demographic 
support of northern spotted owls (FWS 2016, p. 553). Based on that, we 
reconsidered the relative value of including them in a critical habitat 
designation. See also our response to Comment (19). As a result, we do 
not agree with the commenter's assertion that our discussion about 
clarifying public understanding about the difference in conservation 
value provided by the Harvest Land Base versus the reserves is 
arbitrary and capricious.

[[Page 62635]]

    Comment (37): Commenters stated that the Service failed to give 
weight to economic impacts in our section 4(b)(2) analysis because we 
stated that we are not excluding areas due to economic impacts.
    Our response: Our July 20, 2021, proposed rule stated, ``we are not 
now proposing to exclude any areas solely on the basis of economic 
impacts.'' This statement was referring to the proposed exclusions of 
the BLM's Harvest Land Base and lands transferred to be held in trust 
for the Tribes. However, we requested comments on any significant new 
information or analysis concerning economic impacts that we should 
consider in the balancing of the benefits of inclusion versus the 
benefits of exclusion in the final determination. We have considered 
those impacts in Consideration of Impacts Under Section 4(b)(2) of the 
Act.
    Comment (38): Commenters asserted that exclusions to critical 
habitat would eliminate the need for land management agencies to 
improve habitat.
    Our response: The BLM will continue to manage the Harvest Land Base 
according to the management direction in their RMPs. See our response 
to Comments 16-17 above for a discussion of how the RMPs are consistent 
with the recovery of the northern spotted owl and provide needed 
habitat management.
    Comment (39): A commenter requested that we not exclude specific 
areas of Harvest Land Base lands in critical habitat Unit 2 that are 
adjacent to or near a particular grove of old-growth trees in Late-
Successional Reserve stating that any harvest in that area would damage 
the grove.
    Our response: We appreciate the commenter's commitment to the 
conservation of this particular forest grove. However, as stated 
earlier, the Harvest Land Base will continue to be managed according to 
the management direction of the BLM's RMPs even if excluded from 
critical habitat. We encourage the commenter to provide public comment 
through the BLM's NEPA process if forest management projects are 
planned for this area.

Summary of Changes From Proposed Rule

    This final rule incorporates changes to our proposed rule based on 
the comments and information we received, as discussed above in the 
Summary of Comments and Recommendations. All changes made were included 
accordingly in the document, tables, and maps. As a result, the final 
designation of critical habitat reflects the following changes from the 
July 20, 2021, proposed rule (86 FR 38246):
    1. We corrected acreage calculation errors and considered updated 
boundaries for Harvest Land Base lands from the BLM in the acreages of 
lands proposed for exclusion in Subunits NCO 4, NCO 5, ORC 1, ORC 2, 
ORC 3, ORC 5, ORC 6, WCS 1, WCS 2, WCS 3, WCS 4, WCS 5, WCS 6, ECS 1, 
ECS 2, KLW 1, KLW 2, KLW 3, KLW 4, KLW 5, KLE 1, KLE 2, KLE 3, KLE 4, 
KLE 5, KLE 6. As a result, the exclusions in this final rule are 359 
acres (145 hectares) more than what was included in the proposed rule.
    2. We corrected the coordinates or plot points from which the maps 
were generated. The information is available at https://www.regulations.gov under Docket No. FWS-R1-ES-2020-0050, and from the 
Oregon Fish and Wildlife Office website at https://www.fws.gov/oregon.

Withdrawal of the January Exclusions Rule

    In our March 1, 2021, final rule (86 FR 11892) extending the 
effective date of the January Exclusions Rule, we acknowledged that the 
additional areas excluded in that final rule (more than 3.2 million 
acres (1.3 million hectares)) and the rationale for the additional 
exclusions were not presented to the public for notice and comment. We 
noted that several members of Congress expressed concerns regarding the 
additional exclusions, among other concerns, which they identified in a 
February 2, 2021, letter to the Inspector General of the Department of 
the Interior seeking review of the January 15, 2021, final rule. We 
also noted we received at least two notices of intent to sue from 
interested parties regarding allegations of procedural defects, among 
other potential defects, with respect to our rulemaking for the final 
critical habitat exclusions.
    We received a number of comments in response to our March 1, 2021, 
final rule wherein we invited public comment on: (1) Any issues or 
concerns about whether the rulemaking process was procedurally 
adequate; (2) whether the Secretary's conclusions and analyses in the 
January Exclusions Rule were consistent with the law, and whether the 
Secretary properly exercised his discretion under section 4(b)(2) of 
the Act in excluding the areas at issue from critical habitat; and (3) 
whether, and with what supporting rationales, the Service should 
reconsider, amend, rescind, or allow to go into effect the January 
Exclusions Rule. Commenters identified potential defects in the January 
Exclusions Rule--both procedural and substantive. We summarized these 
comments in our April 30, 2021, final rule delaying the effective date 
of the January Exclusions Rule until December 15, 2021 (86 FR 22876).
    Based on these comments and concerns, and comments we received on 
our July 20, 2021, proposed rule (86 FR 38246) (see Summary of Comments 
and Recommendations section above), we reconsidered the rationale and 
justification for the large exclusion of critical habitat identified in 
the January Exclusions Rule. As a result, the Service concludes that 
there was insufficient rationale and justification to support the 
exclusion of approximately 3,472,064 acres (1,405,094 hectares) from 
critical habitat for the northern spotted owl, an exclusion that 
removed an additional approximately 3.2 million acres (1.3 million 
hectares) from designation as compared with the August 2020 proposed 
rule. Our reexamination of the January Exclusions Rule identified 
defects and shortcomings, which we summarize in the following 
paragraphs. We received additional comments addressing these asserted 
defects and shortcomings in response to our July 20, 2021, proposed 
rule, and addressed those above, see responses to Comments A-G.
    We provided an insufficient opportunity for the public to review 
and comment on the changes made from the proposed to final exclusions 
in the January Exclusions Rule, which would have necessitated 
additional notice and an opportunity to comment. The January Exclusions 
Rule, had it gone into effect, would have excluded substantially more 
acres (36 percent of designated critical habitat versus the 2 percent 
proposed in the August 11, 2020, proposed revised rule). The January 
Exclusions Rule also excluded critical habitat in a much broader 
geographic area than proposed, including adding exclusions in 
Washington and California when only exclusions in Oregon had been 
included in the proposed rule. The January Exclusions Rule also 
included new rationales for the exclusions that were not identified in 
the August 11, 2020, proposed revised critical habitat rule (85 FR 
48487). These included generalized assumptions about the economic 
impact of both the listing of the northern spotted owl and the 
subsequent designation of areas as critical habitat; the stability of 
local economies and protection of the local custom and culture of 
counties; the presumption that exclusions would increase timber harvest 
and result in longer cycles between harvest, that timber harvest

[[Page 62636]]

designs would benefit the northern spotted owl, and that the increased 
harvest would reduce the risk of wildfire; and that northern spotted 
owls may use areas that have been harvested if some forest structure 
was retained. The public did not have an opportunity to review or 
comment on these new rationales. Further, the public did not have an 
opportunity to comment on the expanded critical habitat exclusions made 
in the January Exclusions Rule in light of the information included in 
the December 15, 2020, finding, with supporting species report (85 FR 
81144, FWS 2020), that the northern spotted owl warrants 
reclassification to endangered status that was published just 3 weeks 
before the January Exclusions Rule.
    Additionally, the January Exclusions Rule excluded all of the O&C 
lands managed by BLM and USFS including those allocated to reserves. In 
our January Exclusions Rule, we failed to reconcile our prior finding 
that areas designated on O&C lands were essential to the conservation 
of the subspecies. The Service previously concluded in our 2012 
critical habitat rule (77 FR 71876) that the O&C lands and portions of 
other lands managed as ``matrix'' lands for timber production 
significantly contribute to the conservation of the northern spotted 
owl, that recovery of the owl cannot be attained without the O&C lands, 
and that our analysis showed that not including some of these O&C lands 
in the critical habitat network resulted in a significant increase in 
the risk of extinction.
    In response to our March 1, 2021, rule (86 FR 11892) extending the 
effective date of the January Exclusions Rule, some commenters stated 
that we provided sufficient notice and an opportunity for the public to 
be aware of the potential for the expansion of the exclusions from the 
proposed to final rules. Industry groups asserted that the August 11, 
2020, proposed revised critical habitat rule (85 FR 48487) made clear 
that additional exclusions were being considered, in part, based on our 
request for information on additional exclusions we should consider 
(AFRC 2021, pp. 5-;6). In contrast, many other commenters objected to a 
lack of notice and opportunity to comment on the significant changes. 
These included comments from the newly impacted State fish and wildlife 
agencies (Washington Department of Fish and Wildlife 2021, California 
Department of Fish and Wildlife 2021). In addition, the exclusion of 
all ``matrix'' lands managed by the USFS amounted to over 2 million 
acres in areas of the National Forests in three States, with limited 
analysis of the effects of such exclusions on the conservation of the 
northern spotted owl and in hindsight, minimal supporting rationale. If 
we had decided to implement the January Exclusions Rule, in order to 
ensure a robust opportunity for public input on the changes, we would 
have erred on the side of transparency and would have opened a public 
comment period on that rule and considered that feedback before 
deciding to implement the rule. Based on our review, we proposed 
instead to withdraw the January Exclusions Rule, prior to its 
implementation, due to a number of concerns that the exclusions would 
be inconsistent with the conservation purposes of the Act, which we 
summarize below and affirm in this final rule.
    First, the large additional exclusions made in the January 
Exclusions Rule were premised on inaccurate assumptions about the 
status of the owl and its habitat needs. The large additional 
exclusions were based in part on an assumption that barred owl control 
is the primary requirement for northern spotted owl recovery, when in 
fact the best scientific data indicate that protecting late-
successional habitat also remains critical for the conservation of the 
spotted owl as well (FWS 2020, p. 83; Franklin et al. 2021, p. 18). 
Although they require different management approaches, both actions are 
fundamental to the spotted owl's recovery.
    In addition, in concluding that the exclusions of the January 
Exclusions Rule will not result in the extinction of the northern 
spotted owl (a finding necessary for any section 4(b)(2) exclusions), 
the January Exclusions Rule relied, in part, upon a large-scale barred 
owl removal program that is not yet in place. The Service is in the 
process of developing a barred owl management strategy, but the 
specific features of any such program and where they may be applied are 
yet to be determined, and the Service will engage public review and 
comment before deciding. As discussed above, our experimental removal 
of barred owls showed a strong, positive effect of that removal on the 
survival of spotted owls, but considerable economic, logistical, 
social, and regulatory issues remain before large-scale non-
experimental removal of barred owls could occur.
    Since completion of the Revised Recovery Plan for the Northern 
Spotted Owl (FWS 2011), the Service has worked closely with Federal and 
State land managers to minimize or avoid impacts to extant spotted owls 
due to timber harvest, while at the same time carrying out the barred 
owl removal experiment (Wiens et al. 2021) and initiating development 
of a barred owl management program. This approach has allowed for 
timber harvest to proceed under State and Federal land management plans 
(e.g., BLM's 2016 Resource Management Plans in western Oregon (BLM 
RMPs)) while minimizing impacts to long-term spotted owl recovery 
prospects. Potential timber harvest in the areas that would be excluded 
from critical habitat in the January Exclusions Rule would far exceed 
the level of impact to spotted owls that the Service anticipated in 
those land management plans. Thus, it is premature to rely solely on an 
anticipated barred owl management program to offset the potential loss 
of millions of acres of spotted owl critical habitat over time or to 
conclude that the loss would not result in the extinction of the 
subspecies.
    Second, the January Exclusions Rule undermined the biological 
redundancy of the critical habitat network by excluding large areas of 
critical habitat across the range of the northern spotted owl. The 2012 
critical habitat designation (77 FR 71876) increased in size compared 
to previous designations, in part to account for the likelihood of 
habitat loss due to more frequent wildfires. This increase provided for 
biological redundancy in northern spotted owl populations and habitat 
by maintaining sufficient habitat on a landscape level in areas prone 
to frequent natural disturbances, such as the drier, fire-prone regions 
of its range (Noss et al. 2006, p. 484; Thomas et al. 2006, p. 285; 
Kennedy and Wimberly 2009, p. 565). We will continue to monitor habitat 
impacts due to wildfire and other disturbances and evaluate the 
integrity of the spotted owl's critical habitat network.
    As stated earlier, in the development of habitat conservation 
networks generally, the intent of spatial redundancy is to increase the 
likelihood that the network and populations can sustain habitat losses 
by inclusion of multiple populations unlikely to be affected by a 
single disturbance event. This redundancy is essential to the 
conservation of the northern spotted owl because disturbance events 
such as fire can potentially affect large areas of habitat with near-
term negative consequences for northern spotted owls. This redundancy 
can also allow for a relatively small amount of human-caused 
disturbance such as timber harvest without jeopardizing the subspecies 
or adversely modifying its critical habitat, provided that

[[Page 62637]]

disturbance is carefully planned and evaluated within the appropriate 
temporal and spatial context such as projects consistent with BLM's 
2016 RMPs. The evaluation process used by the Service in our 2012 final 
critical habitat rule (77 FR 71876) addresses spatial redundancy at two 
scales: By (1) making critical habitat subunits large enough to support 
multiple groups of owl sites; and (2) distributing multiple critical 
habitat subunits within a single geographic region. This approach was 
particularly the case in the fire-prone Klamath and Eastern Cascades 
portions of the range. This increased habitat redundancy also provides 
for the conservation of northern spotted owls as they face growing 
competition from barred owls.
    The January Exclusions Rule also failed to consider the needs for 
connectivity between critical habitat units, particularly in southern 
Oregon where dispersal habitat is already limited in areas that were 
excluded in the January Exclusions Rule. Successful dispersal of 
northern spotted owls is essential to maintaining genetic and 
demographic connections among populations across the range of the 
subspecies (FWS 2020, p. 24). As stated previously, some critical 
habitat subunits that were designated to provide this support were 
reduced in the January Exclusions Rule by up to 90 percent. If these 
exclusions were implemented and management actions or plans were 
amended to allow for increased harvest at the scale of these 
exclusions, these subunits would no longer provide the demographic 
support for which they were designated. Again, as described above, the 
Service anticipates and plans for some amount of human-caused and 
natural disturbance in these critical habitat units, meted out over 
space and time in a manner that supports recovery over the long term. 
The January Exclusions Rule could facilitate timber harvest that could 
greatly accelerate those impacts well beyond what was anticipated in 
the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and 
various land management plans.
    The January Exclusions Rule also overstates the conservation value 
of areas not designated as critical habitat for the owl on other 
Federal lands, such as national parks and designated wilderness areas. 
These Federal lands do contain habitat for the northern spotted owl and 
are generally protected from proposed Federal activities that would 
result in significant removal of that habitat, and so they do provide 
areas that can serve as refugia for northern spotted owls. These 
protected areas, however, are relatively small and widely dispersed 
across the range of the owl. As we noted above, these areas are also 
typically high-elevation lands, and it is unlikely that the owl 
populations would be viable if their habitat were restricted to these 
areas (55 FR 26114, June 26, 1990; p. 26177). They are disjunct from 
one another and cannot be relied on to sustain the subspecies unless 
they are part of and connected to a wider reserve network as provided 
by the 2012 critical habitat designation (77 FR 71876, December 4, 
2012). As discussed above, that network would have been greatly 
diminished and fragmented by the January Exclusions Rule if 
implemented. See also our response to Comment (Cii).
    Third, under section 4(b)(2) of the Act, the Secretary cannot 
exclude areas from critical habitat if he or she finds, ``based on the 
best scientific and commercial data available, that the failure to 
designate such area as critical habitat will result in the extinction 
of the species concerned.'' The January Exclusions Rule relied upon a 
determination that the exclusions will not result in the extinction of 
the northern spotted owl based in part on a faulty interpretation of 
the science relevant to spotted owl conservation. Specifically, the 
then-Director in her memo to the Secretary of January 7, 2021 (FWS 
2021a) overestimated the probability that the northern spotted owl 
population would persist into the foreseeable future if a large portion 
of critical habitat was removed and subsequent timber harvest were to 
occur on those lands. The then-Director excluded 3,472,064 acres 
(1,405,094 hectares) from the total of 9,577,342 acres (3,875,812 
hectares) designated as critical habitat in 2012, or 36 percent of the 
total. Most of this exclusion is concentrated in Oregon and, due to its 
geographic location and habitat quality, it represents a significant 
portion of the subspecies' most important remaining habitat. The O&C 
lands, for example, encompass 37 percent of the lands that were covered 
under the NWFP in Oregon and provide important habitat for 
reproduction, connectivity, and survival in the Coast Range and 
portions of the Klamath Basin and provide connectivity through the 
Coast Range and between the Coast Range and western Cascades (Thomas et 
al. 1990, p. 382, BLM 2016c, p. 17).
    The best scientific information indicates that the northern spotted 
owl population is in a precipitous decline, and the Service recently 
concluded that the subspecies warranted reclassification to endangered 
status under the Act (85 FR 81144, December 15, 2020). The subspecies 
is essentially extirpated from British Columbia, rapidly declining to 
near extirpation in Washington and parts of Oregon, and is in the 
earlier stages of similar declines in the rest of its range. Northern 
spotted owls are declining at a rate of 5.3 percent across their range, 
and populations in Oregon and Washington have declined by over 50 
percent, with some declining by more than 75 percent, since 1995 
(Franklin et al. 2021). As the statutory definition of ``endangered'' 
states, the subspecies is in ``danger of extinction throughout all or a 
significant portion of its range.'' 16 U.S.C. 1532(5)(A)(6). 
Significant changes to habitat conservation of the type that were 
assumed by the January Exclusions Rule would greatly exacerbate this 
decline by working synergistically with the impacts from barred owl.
    The Director's memo failed to recognize that (1) spotted owl 
populations are declining precipitously due to a combination of 
historical habitat loss and more recent competition with the barred 
owl; and (2) the only way to arrest this decline and have a high 
probability of preventing extinction (in any timeframe) is to both 
manage the barred owl threat and conserve adequate amounts of high-
quality habitat distributed across the range in a pattern that provides 
acceptable levels of connectivity as well as protection from stochastic 
events. This conclusion is supported by the Revised Recovery Plan for 
the Northern Spotted Owl (FWS 2011), as well as more recent peer-
reviewed and published scientific research (Weins et al. 2021, Franklin 
et al. 2021). Franklin et al. (2021, p. 18) emphasizes the importance 
of maintaining northern spotted owl habitat, regardless of occupancy, 
in light of competition from barred owls to provide areas for 
recolonization and connectivity for dispersing northern spotted owls.
    The 2012 critical habitat designation--including the relatively 
minor exclusions (approximately two percent) proposed here on BLM land 
in the Harvest Land Base--preserves the habitat conservation portion of 
this goal. The much larger exclusion of 36 percent proposed in the 
January Exclusions Rule thwarts this goal, given its large size and its 
disproportionate concentration in high-quality habitat in Oregon. The 
Service finds that the January Exclusions Rule would have resulted in 
the northern spotted owl's extinction even though spotted owls are 
long-lived and are widely dispersed over a large geographic range. 
Individual spotted owls can live up to 20 years, and they

[[Page 62638]]

are widely distributed at low densities across three States. Extinction 
due to removal of large areas of critical habitat would not be 
immediate, but it is still a reasonable scientific certainty. For 
example, if the bulk of the northern spotted owl's habitat were to be 
removed on Federal lands except for the portion that exists in national 
parks, one could reasonably conclude the subspecies would not go 
extinct immediately, say within 1 to 5 years. Individual northern 
spotted owls remaining in those parks scattered across the range might 
persist for one or a few generations (that is, greater than 20 years). 
However, the subspecies is still likely to go extinct over a longer 
time period in this scenario. Basic conservation biology principles and 
metapopulation dynamics predict that those remnant and now isolated 
northern spotted owl subpopulations would likely die off without 
regular genetic and demographic interaction with northern spotted owls 
from neighboring subpopulations.
    Forces working against the persistence of these isolated 
subpopulations include genetic inbreeding and catastrophic stochastic 
events such as wildfire. Therefore, it is a reasonable scientific 
conclusion that the subspecies would go extinct under such conditions, 
but this extinction process will occur over decades as these forces 
manifest themselves and as long-lived individuals die off. The 
extinction would not occur immediately, as it might with rarer and more 
short-lived species, but eventual extinction remains a scientifically 
predictable outcome with a high likelihood of certainty. Yet by the 
time it becomes apparent that extinction were imminent, it would likely 
be too late to provide sufficient protected habitat. This was one of 
the issues that led to the listing of the northern spotted owl in the 
first place--the loss of old-growth habitat at such a rapid pace that 
it was predicted to disappear from federally managed forested habitats 
within several decades (55 FR 26114, June 26, 1990; p. 26175). The Act 
requires us to use the best available science when applying the 
discretion afforded in section 4(b)(2), and this includes making a 
reasonable and defensible scientific interpretation of extinction risk 
that is relevant to the species under consideration. In this final 
rule, we correct the previous misapplication of section 4(b)(2) 
extinction risk analysis, which would not meet the Act's purpose of 
conserving listed species and the ecosystems on which they depend.
    In sum, substantial issues were raised that the January Exclusions 
Rule would preclude the conservation of the northern spotted owl, a 
subspecies we recently found warrants reclassifying as an endangered 
species in danger of extinction throughout its range (85 FR 81144, 
December 15, 2020). Upon review and reconsideration as described above, 
the Service withdraws the January Exclusions Rule and instead excludes 
204,294 acres (82,675 hectares) within 15 counties in Oregon as 
explained further below. This relatively small exclusion represents 
only 2 percent of the total designated critical habitat, in contrast to 
the 36 percent proposed in the January Exclusions Rule, and it is 
consistent with the long-term recovery and conservation goals of the 
northern spotted owl.

Critical Habitat

Background

    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 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). Our regulation at 50 CFR 
424.02 also now defines the term ``habitat'' for the purposes of 
designating critical habitat only, as the abiotic and biotic setting 
that currently or periodically contains the resources and conditions 
necessary to support one or more life processes of a species. This new 
definition of ``habitat'' applies by its terms to new critical habitat 
designations only (see 85 FR 81411, December 16, 2020), and since this 
final rule excludes areas from critical habitat (rather than 
designating them) the new regulation does not apply to this rule. 
Nonetheless, given the number of comments received asserting that some 
areas we designated as critical habitat in 2012 are not ``habitat'' and 
seeking exclusions from the designation pursuant to section 4(b)(2) on 
that basis, we take this opportunity to review the existing critical 
habitat designation for conformance with the new regulatory definition. 
In summary, as explained further below, all the areas within the 
designation of critical habitat for the northern spotted owl are within 
the geographical area occupied by the species at the time of listing 
and encompass forested areas with specific characteristics which are 
the abiotic and biotic setting that currently or periodically contains 
the resources and conditions necessary to support one or more life 
processes of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot 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. Under our implementing regulations, this means the 
Federal action cannot directly or indirectly appreciably diminish the 
value of critical habitat as a whole for the conservation of the listed 
species, see 50 CFR 402.02, definition of ``destruction or adverse 
modification.'' 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.

[[Page 62639]]

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 is not required to abandon 
the proposed activity, nor to restore or recover the species; instead, 
the Federal action agency must implement ``reasonable and prudent 
alternatives'' to avoid destruction or adverse modification of critical 
habitat, or obtain an exemption from the Act's prohibitions under the 
relevant implementing regulations (see 50 CFR part 451).
    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 and 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 areas occupied 
by the species at the time of listing, we focus on the 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 may 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.
    In our December 4, 2012, final rule (77 FR 71876), we determined 
that all units and subunits met the Act's definition of being within 
the geographical area occupied by the species at the time of listing. 
Our determination was based on the northern spotted owl's wide-ranging 
use of the forested landscape, and the distribution of known owl sites 
at the time of listing. In addition, we noted that parts of most units 
and subunits contain a forested mosaic that includes younger forests 
that may not have been occupied at the time of listing. Even though we 
had reasonable certainty based on modeling that such areas were 
occupied at the time of listing, because we did not have complete 
survey data, we also evaluated these areas under the ``unoccupied'' 
standard, and found they were essential to the conservation of the 
species (77 FR 71876; p. 71971). Because the forest habitat is dynamic, 
we also noted the value of the younger forests in being the source of 
continued growth to develop more fully into the high-quality habitat 
preferred by owls for nesting, roosting, and foraging (77 FR 71876; p. 
71971).
    These ``younger forest'' stands that are part of the forest mosaic 
within the critical habitat units may not contain all of the high-
quality characteristics of the habitat preferred by owls for nesting 
and roosting, but they contain the resources and conditions necessary 
to support one or more life processes and are, thus, ``habitat'' for 
the northern spotted owl. Our December 4, 2012, final rule (77 FR 
71876) includes four PBFs (formerly referred to as primary constituent 
elements, or PCEs) specific to the northern spotted owl. In summary, 
PBF (1) is forest types that may be in early-, mid-, or late-seral 
stages and that support the northern spotted owl across its 
geographical range; PBF (2) is nesting and roosting habitat; PBF (3) is 
foraging habitat; and PBF (4) is dispersal habitat (see 77 FR 71876, 
December 4, 2012, pp. 72051-72052, for a full description of the PBFs). 
Not all of the designated critical habitat contains all of the PBFs, 
because not all life-history functions require all of the PBFs. Some 
subunits contain all PBFs and support multiple life processes, while 
some subunits may contain only PBFs necessary to support the species' 
particular use of those subunits as habitat. However, all of the areas 
designated as critical habitat support at least PBF (1), in conjunction 
with at least one other PBF. Thus, PBF (1) must always occur in concert 
with at least one additional PBF (PBFs 2, 3, or 4) (77 FR 71876, 
December 4, 2012, p. 71908). The younger forest areas are habitat for 
the owl and were included in the designation to provide, at a minimum, 
connectivity (physical and biological feature (PBF) (4)-dispersal 
habitat) between occupied areas, room for population growth, and the 
ability to provide sufficient habitat on the landscape for the owl in 
the face of natural disturbance regimes (e.g., fire). In some portions 
of the owl's range, younger forests can provide for additional life 
processes, including nesting if they contain some structural features 
of older forests, as well as foraging depending on prey availability 
(77 FR 71876; p. 71905).
    Some continue to assert that a few sentences in the 2012 critical 
habitat rule, or in memoranda developed in support of the economic 
analysis are proof that the Service inappropriately designated ``non-
habitat'' in the 2012 rule. We acknowledge that we may have been 
imprecise in our language in places in the 2012 critical habitat 
preamble, and/or in other places in the large rulemaking record, but as 
we explain and reaffirm here, the designated critical habitat for the 
northern spotted owl as described in the regulation itself at 50 CFR 
17.95(b) (the entry for ``Northern Spotted Owl (Strix occidentalis 
caurina)'') is all habitat for the northern spotted owl. In particular, 
the memoranda developed for the FEA was never intended to address the 
scientific question of whether particular areas function as current 
habitat for the northern spotted owl. Rather, as explained more fully 
below, for purposes of estimating the incremental economic impact of 
the designation over those caused by the listing of the species as 
threatened, the FEA identified areas of younger forest in the proposed 
designation that might not be currently occupied by the northern 
spotted owl. In such areas, Federal land managers might determine that 
proposed projects may result in ``no effect'' on northern spotted owls 
and are thereby the projects would not be subject to an ESA Section 7 
consultation premised on federal agencies' obligation to avoid jeopardy 
to the species. The economic-impact assumption was that projects in 
those areas therefore might only be subject to the additional 
regulatory cost of an ESA Section 7 consultation if designated as 
critical habitat. This was a simplifying and conservative

[[Page 62640]]

assumption from the standpoint of the economic analysis, but is 
interpreted by some as meaning that the Service determined that these 
areas of younger forest are not spotted owl habitat. That 
interpretation is incorrect, for all of the reasons explained above and 
below.
    While all of the critical habitat units designated consist of 
habitat for the owl, some areas within these units and subunits will at 
times not be used by individual northern spotted owls due to a variety 
of reasons, whether they may be human activity (e.g., timber harvest), 
catastrophic wildfire, displacement by competition with the nonnative 
barred owl, or due to natural and localized population fluctuations. 
This does not mean, however, that the areas are no longer designated 
critical habitat.
    Individual owls live for over twenty years, and during these two 
decades an individual owl may experience multiple disturbance events 
(e.g., a fire or a windstorm) within its large home range that renders 
portions of this range temporarily reduced in habitat quality. A 
catastrophically burned area of critical habitat, for example, may 
affect multiple owl home ranges and create diminished habitat 
conditions (e.g., reduced cover or nesting structure) that might not be 
used by the owl for all life functions in the near term (Jones et al. 
2020, entire). But even with reduced usage or temporary avoidance many 
burned areas still provide some habitat value such as foraging or 
dispersal, and this value tends to rebound as the forest conditions 
naturally begin recovering soon after the fire. We take this ecological 
process into account in reviewing federal actions during the section 7 
consultation process because even severely burned forest habitat often 
retains patchy habitat clumps within the burned area, and the burned 
areas regrow over time. Although there are multiple ecological factors 
that influence how quickly forests recover after a fire, such as 
whether the landscape is in the drier or moister portions of the range, 
this recovery usually begins immediately after the fire. The quality of 
the habitat--and its relative value to spotted owl conservation--
increases over time as forest succession occurs. In summary, ecosystems 
are not static, and a critical habitat designation must incorporate 
this dynamism of the owl's habitat into its design if the designation 
is to provide for the conservation of the species.
    When determining critical habitat boundaries for the December 4, 
2012, final rule, we made every effort to avoid including areas that 
lack physical or biological features for the northern spotted owl. Due 
to the limitations of mapping at fine scales, we were often not able to 
segregate these areas from areas shown as critical habitat on maps 
suitable in scale for publication within the Code of Federal 
Regulations. The following types of areas are not critical habitat 
because they are not and cannot support northern spotted owl habitat, 
and are not included in the 2012 designation: Meadows and grasslands, 
oak and aspen (Populus spp.) woodlands, and manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas), and the 
land on which they are located. Thus, we included regulatory text in 
the December 4, 2012, final rule clarifying that these areas were not 
included in the designation even if within the mapped boundaries of 
critical habitat (77 FR 71876; p. 72052). In our experience, Federal 
agencies undertaking section 7 consultation with us and evaluating 
impacts to designated critical habitat do not have difficulty 
discerning the non-habitat that we narratively excluded, nor do they 
have difficulty discerning the physical and biological characteristics 
that qualify stands as critical habitat. In any case, if anyone seeking 
to apply the critical habitat rule to any particular areas has 
questions about how to apply the rule, the Service is available to 
provide technical assistance.
    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 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 subspecies. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of these planning efforts calls for a 
different outcome.
    The exclusion of 204,294 acres (82,675 hectares) within 15 counties 
in Oregon as described in this document does not change the December 4, 
2012, final rule currently in effect with two exceptions: The only 
sections of the rule that published at 77 FR 71876 (December 4, 2012) 
that would change with this revision are table 8 in the Exclusions 
discussion (pp. 71948-71949), the subunit maps related to the 
exclusions (pp. 72057-72058, 72062, 72065-72067), and the index map of 
Oregon (p. 72054). The regulations concerning critical habitat have 
been revised and updated since 2012 (81 FR 7414, February 11, 2016; 84 
FR 45020, August 27, 2019; 85 FR 81411, December 16, 2020; 85 FR 82376, 
December 18, 2020). Our December 4,

[[Page 62641]]

2012, designation of critical habitat for the northern spotted owl and 
the revisions in this rule are in accordance with the requirements of 
the revised critical habitat regulations, with the exception of the use 
of the term ``primary constituent element'' (PCE) in the December 4, 
2012, final rule; here, we use the term ``physical or biological 
feature'' (PBF), as noted above, in accordance with the updated 
critical habitat regulations. The primary constituent elements (PCEs) 
are, however, the physical and biological features (PBFs) as described 
in the revised regulations: They are essential to the conservation of 
the subspecies, and they may require special management considerations 
or protection.

Final Revised Critical Habitat Designation

    Consistent with the standards of the Act and our regulations, 
9,373,676 acres (3,793,389 hectares) are now identified in 11 units and 
60 subunits as meeting the definition of critical habitat for the 
northern spotted owl. The 11 units are: (1) North Coast Olympics, (2) 
Oregon Coast Ranges, (3) Redwood Coast, (4) West Cascades North, (5) 
West Cascades Central, (6) West Cascades South, (7) East Cascades 
North, (8) East Cascades South, (9) Klamath West, (10) Klamath East, 
and (11) Interior California Coast Ranges. Land ownership of the 
designated critical habitat includes Federal, State, and local 
government lands. No Indian or private lands were included in the 
critical habitat designation in 2012; lands formerly managed by the BLM 
that were designated as critical habitat subsequently were transferred 
into trust for two Tribes, which meant that subsequently these Indian 
lands were within the critical habitat designation; we have excluded 
those lands with this final rule. The approximate area of each subunit 
and excluded area within critical habitat subunits is shown in table 1. 
Only the units and subunits that we have revised in this rule are 
described below; see the 2012 critical habitat rule for descriptions of 
the units and subunits that remain unchanged.

                                Table 1--Areas Excluded, by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                  Areas meeting the
                                                definition of critical     Areas excluded, in     Rationale for
             Unit               Specific area     habitat, in acres         acres (hectares)        exclusion
                                                    (hectares) \1\
----------------------------------------------------------------------------------------------------------------
1............................  NCO 4                  124,124 (50,231)              1,838 (744)  BLM Harvest
                                                                                                  Land Base.
1............................  NCO 5                  198,320 (80,258)            8,482 (3,433)  BLM Harvest
                                                                                                  Land Base.
2............................  ORC 1                  110,580 (44,750)              1,279 (518)  BLM Harvest
                                                                                                  Land Base.
2............................  ORC 2                 261,220 (105,712)            7,900 (3,197)  BLM Harvest
                                                                                                  Land Base/
                                                                                                  Indian Lands.
2............................  ORC 3                  204,036 (82,571)            4,907 (1,986)  BLM Harvest
                                                                                                  Land Base/
                                                                                                  Indian Lands.
2............................  ORC 5                  176,276 (71,337)           15,070 (6,099)  BLM Harvest
                                                                                                  Land Base.
2............................  ORC 6                   81,856 (33,126)            4,188 (1,695)  BLM Harvest
                                                                                                  Land Base/
                                                                                                  Indian Lands.
6............................  WCS 1                   92,528 (37,445)                880 (356)  BLM Harvest
                                                                                                  Land Base.
6............................  WCS 2                  151,319 (61,237)              1,087 (440)  BLM Harvest
                                                                                                  Land Base.
6............................  WCS 3                 318,161 (128,756)              1,922 (778)  BLM Harvest
                                                                                                  Land Base.
6............................  WCS 4                 378,744 (153,273)                    6 (2)  BLM Harvest
                                                                                                  Land Base.
6............................  WCS 5                 356,447 (144,249)                    2 (1)  BLM Harvest
                                                                                                  Land Base.
6............................  WCS 6                   99,436 (40,241)           18,120 (7,333)  BLM Harvest
                                                                                                  Land Base.
8............................  ECS 1                  125,473 (50,777)           16,458 (6,660)  BLM Harvest
                                                                                                  Land Base.
8............................  ECS 2                   66,039 (26,725)              2,379 (963)  BLM Harvest
                                                                                                  Land Base.
9............................  KLW 1                  147,154 (59,551)           15,316 (6,198)  BLM Harvest
                                                                                                  Land Base/
                                                                                                  Indian Lands.
9............................  KLW 2                  149,857 (60,645)                   19 (8)  BLM Harvest
                                                                                                  Land Base.
9............................  KLW 3                  146,005 (59,086)              1,685 (682)  BLM Harvest
                                                                                                  Land Base.
9............................  KLW 4                  158,710 (64,228)                785 (318)  BLM Harvest
                                                                                                  Land Base.
9............................  KLW 5                   31,062 (12,571)                  <1 (<1)  BLM Harvest
                                                                                                  Land Base.
10...........................  KLE 1                  242,713 (98,223)                  30 (12)  BLM Harvest
                                                                                                  Land Base/
                                                                                                  Indian Lands.
10...........................  KLE 2                  100,374 (40,620)          29,998 (12,140)  BLM Harvest
                                                                                                  Land Base/
                                                                                                  Indian Lands.
10...........................  KLE 3                  112,709 (45,612)          48,398 (19,586)  BLM Harvest
                                                                                                  Land Base.
10...........................  KLE 4                 255,888 (103,555)                    1 (1)  BLM Harvest
                                                                                                  Land Base.
10...........................  KLE 5                   38,222 (15,468)           12,166 (4,923)  BLM Harvest
                                                                                                  Land Base.
10...........................  KLE 6                  167,715 (67,872)           11,376 (4,604)  BLM Harvest
                                                                                                  Land Base.
----------------------------------------------------------------------------------------------------------------
\1\ Acreages differ slightly from those in 77 FR 71876 due to updated GIS analysis.

    This revision excludes from critical habitat areas identified by 
BLM as allocated to the Harvest Land Base land use in the 2016 RMPs. 
Under the BLM RMPs, some land-use allocations, such as Riparian 
Reserve, require identification of features on the ground. The BLM 
typically determines the location of such features as part of 
implementing actions and subsequently corrects land-use allocation 
boundaries consistent with the direction in the RMP. Therefore, some 
areas within the 2012 critical habitat designation that are currently 
mapped as Riparian Reserve in the RMPs are corrected on site-specific 
review to be mapped as Harvest Land Base. These corrections are 
expected to be minor in scope and reflect the most accurate 
information. As such, we assume such corrected acreage in the Harvest 
Land Base would be excluded by this final rule. The Late-Successional 
Reserve, where the majority of critical habitat overlaps BLM-managed 
lands, is not subject to these boundary adjustments.
    We used GIS data provided by BLM that identified land use 
allocations under their 2016 revised RMPs and lands transferred to be 
held in trust for Tribes under the Western Oregon Tribal Fairness Act 
to identify areas for exclusion in this final rule (BLM 2021b).

Consideration of Impacts 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

[[Page 62642]]

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 he or she determines that the benefits of such exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat, unless the Secretary 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 finalized a new regulation regarding the application of section 
4(b)(2) exclusion analyses on December 18, 2020 (85 FR 82376). Although 
the new regulation superseded our 2016 Policy and prior regulation 
regarding exclusion analyses, the new regulation ``primarily adopts and 
deepens the provisions contained in the previous policy and rule'' (85 
FR 82376). By its terms, that new regulation applies to ``critical 
habitat designations or revisions that FWS proposes after the effective 
date of this rulemaking action.'' Id. at 82376. As the revision to the 
2012 critical habitat designation we finalize here was initially 
proposed in our proposed rule of August 11, 2020 (85 FR 48487), we 
could reasonably conclude that the new regulation does not apply to the 
reproposal we made of the same in July of this year. To avoid any 
uncertainty, however, we will consider the exclusions pursuant to the 
new regulation.
    Thus, we considered the best information available regarding 
economic, national security, and other relevant impacts. ``Economic 
impacts'' may include, but are not limited to, the economy of a 
particular area, productivity, jobs, and any opportunity costs arising 
from the critical habitat designation (such as those anticipated from 
reasonable and prudent alternatives that may be identified through a 
section 7 consultation) as well as possible benefits and transfers 
(such as outdoor recreation and ecosystem services). ``Other relevant 
impacts'' may include, but are not limited to, impacts to Tribes, 
States, local governments, public health and safety, community 
interests, the environment (such as increased risk of wildfire or pest 
and invasive species management), Federal lands, and conservation 
plans, agreements, or partnerships. We describe below the process that 
we undertook for taking into consideration each category of impacts and 
our analyses of the relevant impacts.

Process for Exercising Discretion To Conduct an Exclusion Analysis

    The Secretary has discretion whether to conduct an exclusion 
analysis under section 4(b)(2) in accordance with our regulations at 50 
CFR 17.90(c). The Secretary will conduct an exclusion analysis when the 
proponent of excluding a particular area (including but not limited to 
permittees, lessees, or others with a permit, lease, or contract on 
federally managed lands) has presented credible information regarding 
the existence of a meaningful economic or other relevant impact 
supporting a benefit of exclusion for that particular area. The 
Secretary may also otherwise decide to exercise discretion to evaluate 
any particular area for possible exclusion.
    We received requests to exclude many areas within the critical 
habitat designation for the northern spotted owl. In determining 
whether we would conduct an exclusion analysis, we first evaluated 
whether the proponent of those exclusions presented credible 
information of a meaningful impact supporting benefits of excluding 
these areas. We found several requests did not meet this standard as 
described below (similar requests have been grouped into categories).
    We received requests from several commenters to exclude younger 
forests; subunits with greater than 50 percent younger forests; low-
quality habitat; stands under 80 years old; habitat-capable lands; 
areas for dispersal or connectivity; areas occupied by barred owls; 
parcels of less than 3,000 acres (1,214 hectares); smaller, fragmented 
parcels; previously burned Late-Successional Reserve; areas that have 
burned at high severity; and all ``uninhabited'' lands. All of these 
requests for exclusion rely on assertions that the areas either do not 
meet the definition of habitat for the northern spotted owl and must, 
therefore, not be designated as critical habitat, or that these areas 
should not be designated because they are currently ``unoccupied'' by 
owls. We did not conduct an exclusion analysis for these areas because 
the requests were based on the assertion that these areas are not 
habitat or that they cannot be essential to the recovery of the 
northern spotted owl because they are not currently occupied. These 
requests are not subject to an exclusion analysis because they are 
premised on incorrect conclusions regarding whether areas are 
``habitat'' for the northern spotted owl in the first instance, 
misapprehend the concept of ``occupied at the time of listing'' which 
is the basis for critical habitat designation, or simply seek to re-
argue elements of the critical habitat designation in 2012 that were 
determined in that rulemaking. See also our responses to Comments (26-
28). Additionally, the Secretary did not otherwise decide to exercise 
discretion to evaluate these particular areas for possible exclusion. 
We note, however, there is some overlap with some of these requests for 
exclusions and the areas within the O&C lands and USFS matrix lands for 
which we did conduct an exclusion analysis, below. Our decision to 
conduct an exclusion analysis on the O&C lands and USFS matrix lands 
was not based on whether or not they met the definition of habitat, but 
rather on credible information that a meaningful impact may support 
benefits of exclusion of those lands.
    We received comments seeking exclusions of areas of moderate to 
high fire risk; fire-prone forests or specific subunits in fire-prone 
areas; and areas of dry forest in California and the eastern Washington 
Cascades; and stating that all California lands because the critical 
habitat designation is asserted to conflict with active forest 
management designed to reduce the risk of wildfire and lead to 
subsequent fire suppression costs and reduced revenue. We did not 
conduct an exclusion analysis for these areas because the requests are 
based on the assertion that the critical habitat designation impedes 
active forest management and the asserted costs and lost revenue are 
based on this misunderstanding.
    We find this assertion to be unfounded as described in our 
responses to Comments (Civ) and (27a) and explain how the critical 
habitat rule encourages and does not conflict with active forest 
management to reduce the risk of high-severity wildfire. Thus, we find 
that the commenters have not provided credible information that a 
meaningful impact may support benefits of excluding these areas. 
Additionally, the Secretary did not otherwise decide to exercise 
discretion to evaluate these particular areas for possible exclusion.
    We received requests to exclude adaptive management areas and 
experimental forests based on the assertion that critical habitat 
places additional constraints on actions in these areas that will limit 
the ability to conduct scientifically credible work; that they are not 
suitable habitat due to the age-class of certain stands or as evidenced 
by a lack of current occupancy; that their designation has economic 
impacts; and an assertion that

[[Page 62643]]

the critical habitat designation conflicts with active forest 
management designed to reduce the risk of wildfire. We find that the 
commenter's assertion about constraints due to critical habitat are not 
credible and find there is enough flexibility built into the 
recommendations in the critical habitat rule that experimental forests 
and Adaptive Management Areas can continue to conduct their valuable 
work on their landscapes. We did not conduct an exclusion analysis for 
these particular areas because the requests were based on the assertion 
that these areas are not habitat and that the critical habitat 
designation impedes active forest management. We do not agree with 
these assertions as described in our responses to Comment (31). 
Additionally, commenters did not provide information on economic 
impacts to these specific areas, and they requested exclusion of these 
areas in combination with USFS matrix lands but only provided economic 
impacts related to USFS matrix lands. Therefore, we find the commenters 
did not provide credible information that a meaningful impact may 
support benefits of excluding these areas. We have conducted an 
exclusion analysis of the USFS matrix lands below.
    We received requests from Douglas County to exclude several areas, 
including all USFS and BLM lands; private and State lands; county lands 
in Oregon; all lands in Douglas County; and BLM lands that are not O&C 
lands. They asserted various reasons for these requests, including: 
Reducing government processes (``red tape''), a need to provide 
management flexibility and ease of administration, economic impacts, 
and other reasons included in the requests described above. We did not 
conduct an exclusion analysis for these areas based on government 
process requirements or ease of administration because the commenters 
did not provide information pertaining to these areas that there are 
meaningful impacts related to these issues that may support benefits of 
excluding these areas. We do not agree with the assertion that the 
critical habitat designation conflicts with a need to provide 
management flexibility as described in our responses to Comments (B-C), 
(6), (12), (25a), and (27a); thus, we did not consider this to be 
credible information that these are meaningful impacts. We also did not 
conduct an exclusion analysis for these areas based on economic impacts 
because we found that Douglas County did not provide economic 
information for the exclusion requests listed here. Douglas County also 
requested exclusion of all O&C lands and USFS matrix lands, and 
provided information on economic impacts related to unoccupied matrix 
lands, which we have evaluated in our exclusion analysis for those 
lands below.
    We received requests from Lewis and Skamania Counties, Washington, 
to exclude the White Pass Ski Area. While the counties provided 
information pertaining to the economic benefits the ski area provides 
to the local community, they did not provide information regarding the 
impact of the critical habitat designation beyond the need to conduct 
section 7 analyses for critical habitat. No information or evidence was 
presented to indicate that the critical habitat designation does or 
will impair the ski area's current operations, nor that it has or will 
unreasonably restrict any future expansion of the ski area given the 
small footprint and potential impacts within critical habitat. And, as 
noted in our response to Comment (29), developed portions of ski areas 
are functionally excluded from critical habitat although the mapping 
may overlap some of the ski area footprint. Thus, we did not conduct an 
exclusion analysis for the ski area because the commenters did not 
provide credible information that there are meaningful impacts related 
to critical habitat, beyond the minor administrative or transactional 
costs to complete section 7 consultation that may support benefits of 
excluding these areas.
    The Secretary conducted exclusion analyses when the proponent of 
excluding a particular area (including but not limited to permittees, 
lessees, or others with a permit, lease, or contract on federally 
managed lands) presented credible information regarding the existence 
of a meaningful economic or other relevant impact supporting a benefit 
of exclusion for that particular area. These include requests for the 
exclusion of Indian lands, BLM Harvest Land Base lands, O&C lands and 
USFS matrix lands, and Douglas County lands. These exclusion analyses 
are below in Exclusions Based on Other Relevant Impacts.

Process for Consideration of Impacts

    When identifying the benefits of inclusion of an area as designated 
critical habitat, we primarily consider the additional regulatory 
benefits that that area would receive due to the protection from 
destruction or adverse modification as a result of actions with a 
Federal nexus (that is, an activity or program authorized, funded, or 
carried out in whole or in part by a Federal agency). We may also 
consider the educational benefits of mapping essential habitat for 
recovery of the listed species, benefits that may result from a 
designation due to State or Federal laws that may apply to critical 
habitat, and other benefits such as outdoor recreation or ecosystem 
services. In situations where economic benefits are relevant, we 
generally describe two broad categories of benefits of inclusion of 
particular areas of critical habitat: (1) Those associated with the 
primary goal of species conservation and recovery, and (2) those that 
derive from the habitat conservation measures to achieve this primary 
goal.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in economic benefits through creating or preventing the elimination of 
jobs, avoiding project delays or impediments that affect community 
interests, increased public health and safety, reduction of 
environmental risks (such as increased risk of wildfire or pest and 
invasive species management), and maintenance or fostering of 
partnerships that provide existing conservation benefits or may result 
in future conservation actions. The Secretary can consider the 
existence of conservation agreements and other land management plans 
with Federal, State, private, and Tribal entities when making decisions 
under section 4(b)(2) of the Act. The Secretary may also consider 
relationships with landowners, voluntary partnerships, and conservation 
plans, and weigh the implementation and effectiveness of these against 
that of designation to determine which provides the greatest 
conservation value to the listed species.
    In the case of the northern spotted owl, the benefits of including 
an area as designated critical habitat include public awareness of the 
presence of northern spotted owls and the need for conservation, 
including habitat protection, and, where a Federal nexus exists, 
increased habitat protection for northern spotted owls through the 
Act's section 7(a)(2) mandate that Federal agencies insure that any 
action they authorize, fund, or carry out is not likely to result in 
the destruction or adverse modification of critical habitat. 
Additionally, continued implementation of an ongoing management plan 
for the area that provides conservation equal to or greater than a 
critical habitat designation would reduce the benefits of including 
that specific area in the critical habitat designation.

[[Page 62644]]

    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. We weigh the 
benefits of including or excluding particular areas according to the 
following principles pursuant to 50 CFR 17.90(d):
    (1) We analyze and give weight to impacts and benefits consistent 
with expert or firsthand information in areas outside the scope of the 
Service's expertise unless we have knowledge or material evidence that 
rebuts that information. Impacts outside the scope of the Service's 
expertise include, but are not limited to, nonbiological impacts 
identified by federally recognized Indian Tribes; State or local 
governments; and permittees, lessees, or contractor applicants for a 
permit, lease, or contract on Federal lands.
    (2) We analyze and give weight to economic or other relevant 
impacts relative to the conservation value of the area being 
considered. We give weight to those benefits in light of the Service's 
expertise.
    (3) When weighing areas covered by conservation plans, agreements, 
or partnerships that have been authorized by a permit under section 10 
of the Act, we consider: Whether the permittee is properly implementing 
the conservation plan or agreement; whether the species for which 
critical habitat is being designated is a covered species in the 
conservation plan or agreement; and whether the conservation plan or 
agreement specifically addresses the habitat of the species for which 
critical habitat is being designated and meets the conservation needs 
of the species in the planning area.
    (4) When weighing areas that are covered by conservation plans, 
agreements, or partnerships that have not been authorized by a permit 
under section 10 of the Act, we consider: The degree to which the 
record supports a conclusion that designation would impair the 
realization of the benefits expected from the plan, agreement, or 
partnership; the extent of public participation in the development of 
the conservation plan; the degree to which agency review and required 
determinations have been completed; whether NEPA reviews or similar 
reviews occurred, and the nature of any such reviews; the demonstrated 
implementation and success of the chosen mechanism; the degree to which 
the plan or agreement provides for the conservation of the physical or 
biological features that are essential to the conservation of the 
species; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan or agreement will be implemented; and 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. If our analysis indicates 
that the benefits of exclusion outweigh the benefits of inclusion, then 
the Secretary will exclude the area under section 4(b)(2) unless, based 
on the best scientific and commercial data available, the failure to 
designate the area as critical habitat will result in the extinction of 
the species.
    Under section 4(b)(2) of the Act, we must consider all relevant 
impacts of the designation of critical habitat, including economic 
impacts. In addition to economic impacts (discussed in the Economic 
Analysis section, below), we considered a number of factors in a 
section 4(b)(2) analysis. We considered whether Federal or private 
landowners or other public agencies have developed management plans, 
habitat conservation plans (HCPs), or Safe Harbor Agreements (SHAs) for 
the area or whether there are conservation partnerships or other 
conservation benefits that would be encouraged or discouraged by 
exclusion from critical habitat in an area. We also considered other 
relevant impacts that might occur because of the designation. To ensure 
that our final determination is based on the best available 
information, we also considered comments received on economic, national 
security, or other potential impacts resulting from the 2012 
designation of critical habitat from governmental, business, or private 
interests and, in particular, any potential impacts on small 
businesses. Based on the information provided by entities seeking 
exclusion, as well as any additional public comments received, we 
evaluated whether certain lands in the proposed revised critical 
habitat were appropriate for exclusion from this final designation 
pursuant to section 4(b)(2) of the Act.

Exclusions

    Based on the information provided by entities supporting exclusions 
from critical habitat designation, as well as any additional public 
comments we received, we evaluated whether the areas proposed for 
exclusion were appropriate to exclude from the final designation under 
section 4(b)(2) of the Act. Our analysis indicated that the benefits of 
excluding these lands from the final designation outweigh the benefits 
of including the lands as critical habitat; therefore, the Secretary 
exercises her discretion to exclude these lands from the final 
designation. Accordingly, we exclude the areas identified in Table 8 
Addendum under section 4(b)(2) of the Act from the critical habitat 
designation for the northern spotted owl. Table 8 identifies the 
specific critical habitat units from the December 4, 2012, final rule 
(77 FR 71876), which is codified in title 50 of the Code of Federal 
Regulations (CFR) at Sec.  17.95(b), that we are excluding, at least in 
part; the approximate areas (ac, ha) of lands involved; and the 
ownership of the excluded areas. The Table 8 Addendum that follows 
displays this same information but in the format used in Table 8 in the 
December 4, 2012, final rule (77 FR 71876; pp.71948-71949).

  Table 8 Addendum \1\--Lands Excluded From the Final Revised Designation of Critical Habitat for the Northern
                                  Spotted Owl Under section 4(b)(2) of the Act
----------------------------------------------------------------------------------------------------------------
                                    Critical
       Type of agreement          habitat unit      State      Landowner/agency         Acres          Hectares
----------------------------------------------------------------------------------------------------------------
Resource Management Plan.......  NCO            OR             BLM Harvest Land  10,320............        4,177
                                                                Base
                                 ORC            OR             BLM Harvest Land  27,774............       11,240
                                                                Base

[[Page 62645]]

 
                                 WCS            OR             BLM Harvest Land  22,017............        8,910
                                                                Base
                                 ECS            OR             BLM Harvest Land  18,837............        7,623
                                                                Base
                                 KLW            OR             BLM Harvest Land  13,987............        5,660
                                                                Base
                                 KLE            OR             BLM Harvest Land  91,198............       36,906
                                                                Base
Indian lands...................  ORC            OR             CTCLUSI \2\       5,571.............        2,254
                                 KLE            OR             CCBUTI \3\        10,772............        4,359
                                 KLW            OR             CCBUTI            3,818.............        1,449
                                                                                --------------------------------
    Total additional lands       .............  .............  ................  204,294...........       82,675
     proposed for exclusion
     under section 4(b)(2) of
     the Act.
----------------------------------------------------------------------------------------------------------------
\1\ This table is an addendum to table 8 of the December 4, 2012, final rule (77 FR 71876); table 8 appears at
  77 FR 71948-71949.
\2\ CTCLUSI is the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians.
\3\ CCBUTI is the Cow Creek Band of Umpqua Tribe of Indians.

    These exclusions are based on new information that has become 
available since the December 4, 2012, critical habitat designation for 
the northern spotted owl (77 FR 71876), including BLM's 2016 revision 
to its RMPs for western Oregon (BLM 2016a, 2016b) and the Western 
Oregon Tribal Fairness Act (Pub. L. 115-103). In the paragraphs below, 
we provide a detailed analysis of our consideration of these lands 
excluded under section 4(b)(2) of the Act.

Consideration of Economic Impacts

    We did not exclude areas from our December 4, 2012, final critical 
habitat designation (77 FR 71876) based on economic impacts, and we are 
not now excluding any areas solely on the basis of economic impacts. 
The FEA of the 2012 critical habitat designation for the northern 
spotted owl found the incremental effects of the designation to be 
relatively small due to the extensive conservation measures already in 
place for the subspecies because of its listed status under the Act and 
because of the measures provided under the NWFP (USFS and BLM 1994) and 
other conservation programs (IEc 2012, pp. 4-32, 4-37). Thus, we 
concluded that the future probable incremental economic impacts were 
not likely to exceed $100 million in any single year, and impacts that 
are concentrated in any geographic area or sector were not likely as a 
result of designating critical habitat for the northern spotted owl. 
The incremental effects included: (1) An increased workload for action 
agencies and the Service to conduct reinitiated section 7 consultations 
for ongoing actions in newly designated critical habitat (areas 
proposed for designation that were not already included within the 
extant designation); (2) the cost to action agencies of including an 
analysis of the effects to critical habitat for new projects occurring 
in occupied areas of designated critical habitat; and (3) potential 
project alterations in areas where owls are not currently present 
within designated critical habitat.
    Although we considered the incremental impact of administrative 
costs to Federal agencies associated with consulting on critical 
habitat under section 7 of the Act, economic impacts are not the 
primary reason for the exclusions we are adopting in this rule. See the 
December 4, 2012, final rule for a summary of the FEA and our 
consideration of economic impacts (77 FR 71876; pp. 71878, 71945-71947, 
72046-72048). Our critical habitat regulations require that at the time 
of publication of a proposed rule to designate critical habitat, the 
Secretary make available for public comment a draft economic analysis 
of the designation (85 FR 82376, December 18, 2020). We reviewed the 
FEA (IEc 2012) as well as comments and additional information received 
on the proposed rule, and determined that because we were proposing 
only to exclude (i.e., remove) areas from critical habitat and are not 
adding any areas not included in the 2012 designation and already 
analyzed in the 2012 economic analysis, the economic impact of the 
original designation would be further reduced and an entirely new 
economic analysis was not necessary. Instead, we have considered the 
2012 economic analysis in conjunction with additional new information 
as described above and below.
    Further, we have determined that the exclusion of the Harvest Land 
Base lands from critical habitat for the northern spotted owl would not 
itself result in changes in management or conservation outcomes for 
those lands. The BLM considered the critical habitat designation in 
revising its RMPs in 2016, and the design and implementation of future 
projects will follow the RMP management direction for each land-use 
allocation. We analyzed the RMPs and concluded that the land-use 
allocations and the management direction--including carefully designed 
timber harvest within the Harvest Land Base--would not jeopardize the 
owl's continued existence, nor destroy or adversely modify its 
designated critical habitat. With the exclusions of the Harvest Land 
Base areas from critical habitat finalized

[[Page 62646]]

here, the RMP land-use allocations and management directions will 
continue to apply. The change in section 7 consultation as a result of 
these exclusions will be that BLM will no longer have to address 
whether its actions in the excluded Harvest Land Base areas result in 
the destruction or adverse modification of critical habitat.
    We note that during the public comment period on our prior proposed 
revised critical habitat rule (85 FR 48487, August 11, 2020), the 
American Forest Resource Council (AFRC 2020) and other commenters 
provided a new report prepared by The Brattle Group (2020) (Brattle 
Report) critiquing the 2012 critical habitat FEA (IEc 2012) and also 
provided a supplemental report prepared by The Brattle Group (2021) 
(Brattle supplement) in response to the July 20, 2021, proposed rule 
(86 FR 38246). The Brattle Report and supplement included updated 
estimates of the economic impacts of the 2012 rule using more recent 
data and/or different assumptions. We contracted with IEc to review the 
Brattle Report and provided a response to the report in the January 15, 
2021, final rule (86 FR 4820; pp. 4825-4827). We also contracted with 
IEc to review the Brattle supplement and have provided a response to 
the supplement in this rule. We incorporated our review and 
consideration of this information in our response to comments above 
(See Comments (20-23). The Brattle Report and supplement do not alter 
our assessment that because we are removing areas from designation 
(rather than adding them), no new economic analysis is needed. Because 
the entire 2012 designation did not reach the threshold for economic 
significance under Executive Order 12866, these exclusions, which 
represent a reduction in the overall cost, logically also do not meet 
this threshold.

Consideration of Impacts on National Security

    We did not exclude areas from our December 4, 2012, revised 
critical habitat designation based on impacts on national security, but 
we did exempt Joint Base Lewis-McChord lands based on the integrated 
natural resources management plan under section 4(a)(3) of the Act (77 
FR 71876; pp. 71944-71945). We did not receive any comments or 
additional information on the impacts of the proposed revised 
designation on national security or homeland security. Therefore, we 
are not excluding any additional areas on the basis of impacts on 
national security.

Exclusions Based on 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. 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, or candidate conservation agreements with 
assurances, or whether there are other conservation agreements and 
partnerships that would be encouraged by designation of, or exclusion 
from, critical habitat. In addition, we consider any Tribal forest 
management plans and partnerships and consider the government-to-
government relationship of the United States with Tribes. Consistent 
with our regulations (see 50 CFR 17.90(d)(1)), we consider impacts 
identified by experts in, or by sources with firsthand knowledge of, 
areas that are outside the scope of the Service's expertise, giving 
weight to those benefits consistent with the expert or firsthand 
information, unless we had knowledge or material evidence that rebuts 
that information.

Indian Lands

    Several Executive Orders, Secretarial Orders, and policies concern 
our working with Tribes. These guidance documents generally confirm our 
trust responsibilities to Tribes, recognize that Tribes have sovereign 
authority to control Indian 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, 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 Tribal 
relationships 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 always consider exclusions of Indian 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.
    In this final designation, the Secretary has exercised her 
discretion under section 4(b)(2) of the Act to exclude from this 
critical habitat designation certain Indian lands (lands held in trust) 
for two federally recognized Tribes: 14,590 acres (5,808 hectares) for 
the Cow Creek Band of Umpqua Tribe of Indians (CCBUTI) and 5,571 acres 
(2,254 hectares) for the Confederated Tribes of Coos, Lower Umpqua, and 
Siuslaw Indians (CTCLUSI). See table 1 for the unit and subunit 
locations of these Indian lands.
    In our December 4, 2012, final rule (77 FR 71876), we prioritized 
areas for critical habitat designation by looking first to Federal 
lands, followed by State, private, and Indian lands. No Indian lands 
were designated in our 2012 final rule because we found that we could 
achieve the conservation of the northern spotted owl by limiting the 
designation to other lands. However, on January 8, 2018, the Western 
Oregon Tribal Fairness Act (Pub. L. 115-103) was passed by Congress and 
signed by the President. This act mandated that certain lands managed 
by BLM be taken into trust by the United States for the benefit of two 
Tribes and transferred management authority of approximately 17,800 
acres (7,203 hectares) to CCBUTI and 14,700 acres (5,949 hectares) to 
CTCLUSI. Of the transferred lands, 20,161 acres (8,062 hectares) are 
located within designated critical habitat for the northern spotted 
owl. We considered this new information, as well as comments received 
on this proposed exclusion of these lands, and we are now excluding 
these Indian lands under section 4(b)(2) of the Act, as explained 
below.
Benefits of Inclusion--Indian Lands
    Federal agencies, in consultation with the Service, must ensure 
that their actions are not likely to jeopardize the continued existence 
of any listed species or result in the destruction or adverse 
modification of any designated critical habitat of such species. The 
difference in the outcomes of the jeopardy analysis and the adverse 
modification analysis represents the regulatory benefit and costs of 
critical habitat. A critical habitat designation requires Federal 
agencies to consult on

[[Page 62647]]

whether their activity would destroy or adversely modify critical 
habitat to the point where recovery could not be achieved.
    Another possible benefit is that the designation of critical 
habitat can serve to educate landowners and land managers and the 
general public regarding the potential conservation value of an area, 
and this may contribute to conservation efforts by other parties by 
clearly delineating areas of high conservation value for certain 
species. The designation of critical habitat, by providing information 
about the northern spotted owl and its habitat that reaches a wide 
audience, including other parties engaged in conservation activities, 
is considered of broad conservation value.
    Designation of critical habitat may also increase awareness of the 
conservation importance of the area when activities are addressed under 
other Federal laws that require consideration of the potential 
environmental effects of proposed projects. Designated critical habitat 
signals the presence of important habitat that can trigger additional 
environmental review under these laws, and can help to reinforce 
careful consideration of the effects of actions on the environment. For 
example, significant effects to designated critical habitat (even if 
not resulting in destruction or adverse modification under the Act) 
could lead to additional environmental review under the National 
Environmental Policy Act, or other Federal laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Thus, as Tribes compete for 
grants and other funding sources, wildlife-related conservation 
proposals that address areas of designated critical habitat may be more 
likely to be funded than projects not addressing critical habitat.
Benefits of Exclusion--Indian Lands
    The benefits of exclusion of Indian lands from designated critical 
habitat are significant, and are tied to our commitment to support 
Tribal self-determination. We generally defer to Tribes to develop and 
implement conservation and natural resource management plans for their 
lands and resources, which includes benefits to the northern spotted 
owl and its habitat that might not otherwise occur. The CCBUTI and 
CTCLUSI are the governmental entities best situated to manage and 
promote the conservation of the northern spotted owl on their trust 
land consistent with the principles and policies indicated in 
Secretarial Order 3206; Executive Order 13175; and the relevant 
provision of the Departmental Manual of the Department of the Interior 
(512 DM 2). Our deference to these Tribes for their management of their 
trust lands enhances our existing effective working relationships, and 
allows us to support the Tribes in the manner they consider most useful 
as they lead efforts for the conservation of the northern spotted owl 
and its habitat on these lands.
    We find that other conservation benefits are provided to the 
affected critical habitat subunits and the northern spotted owl and its 
habitat by excluding these lands from the designation. For example, the 
Continuous Forestry Management Approach adopted by the CCBUTI in their 
forest management plan takes proactive prevention, control, and 
recovery actions to mitigate damage and loss of forest values from 
wildfire, insects, and disease and other events. Additionally, the 
CTCLUSI has committed to coordination with the Service in developing 
its approach to conservation of listed species for these newly acquired 
lands. Both Tribes supported these exclusions in their comment letters 
in response to the proposed rule. For these reasons, we have determined 
that excluding these recently transferred lands from the designation of 
critical habitat for the northern spotted owl is of substantial benefit 
in aid of the unique relationship between the Federal Government and 
Tribes and in support of Tribal self-governance.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Indian Lands
    The benefits of including Indian lands in the critical habitat 
designation are limited to the incremental benefits gained through the 
regulatory requirement to consult under section 7 and consideration of 
the need to avoid adverse modification of critical habitat, agency and 
educational awareness, potential additional grant funding, and the 
reinforcing review of environmental effects under other laws. While 
these regulatory benefits are important, in the context here, the 
Tribes' commitment to continue to coordinate with us in conserving 
habitat for the northern spotted owl in these newly acquired areas as 
they manage the landscape is also important. Consistent with principles 
of self-determination and the unique Federal-Tribal relationship, we 
conclude that these Tribally led efforts will be more effective if 
these lands are excluded from the designation. We view this as a 
substantial benefit because we have developed a cooperative working 
relationship for the mutual benefit of endangered and threatened 
species, including the northern spotted owl. Because the Tribes will 
implement habitat conservation efforts on these newly acquired lands, 
and are aware of the value of their lands for northern spotted owl 
conservation, the educational benefits of a northern spotted owl 
critical habitat designation are less important than they would 
otherwise be. For these reasons, we have determined that designation of 
critical habitat would have few, if any, additional benefits beyond 
those that will result from the presence of the subspecies.
    In summary, the benefits of these Indian lands in critical habitat 
are limited to some enhanced regulatory processes. The benefits of 
excluding these areas from designation as critical habitat for the 
northern spotted owl are significant, and include encouraging the 
continued development and implementation of special management measures 
that the Tribes plan for the future or are currently implementing. 
These activities and projects will allow the Tribes to manage their 
natural resources to benefit the northern spotted owl. This approach is 
consistent with the government-to-government nature of our working 
relationship with the Tribes, and also consistent with our published 
policies on Native American natural resource management. The exclusion 
of these areas will likely also provide additional benefits to the 
species that would not otherwise be available to encourage and maintain 
cooperative working relationships with the Tribes. We find that the 
benefits of excluding this area from critical habitat designation 
outweigh the benefits of including this area.
Exclusion Will Not Result in Extinction of the Subspecies--Indian Lands
    We have determined that exclusion of these Indian lands will not 
result in extinction of the subspecies. Firstly, as discussed under 
Effects of Critical Habitat Designation Section 7 Consultation in the 
2012 critical habitat rule (77 FR 71876, December 4, 2012, p. 71937), 
if a Federal action or permitting occurs, the known presence of 
northern spotted owls or their habitat would require evaluation under 
the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will protect the subspecies 
against extinction. Secondly, the Tribes are committed to protecting 
and

[[Page 62648]]

managing these lands and species found on those lands according to 
their Tribal and cultural management plans and natural resource 
management objectives, which provide conservation benefits for the 
northern spotted owl and its habitat. Thirdly, the Indian lands we are 
excluding represent a very small percentage (0.0021 percent) of the 
critical habitat designation, and excluding these lands will not affect 
the overall function of critical habitat at the critical habitat-unit 
level or rangewide. Accordingly, we have determined that the 20,161 
acres (8,062 hectares) of Indian lands are excluded under subsection 
4(b)(2) of the Act because the benefits of exclusion outweigh the 
benefits of inclusion and will not cause the extinction of the 
subspecies.

Federal Lands

    The Secretary has broad discretion under the second sentence of 
section 4(b)(2) on how to weigh the impacts of designation. In 
particular, ``[t]he consideration and weight given to any particular 
impact is completely within the Secretary's discretion.'' (H.R. Rep. 
No. 95-1625, at 17 (1978)). In considering how to exercise this broad 
discretion, we are mindful that Federal land managers have unique 
obligations under the Act. First, Congress declared that ``all Federal 
departments and agencies shall seek to conserve endangered species and 
threatened species and shall utilize their authorities in furtherance 
of the purposes of this Act''; see section 2(c)(1). Second, all Federal 
agencies have responsibilities under section 7 of the Act to carry out 
programs for the conservation of listed species and to ensure their 
actions are not likely to jeopardize the continued existence of listed 
species or result in the destruction or adverse modification of 
critical habitat.
    Specific to critical habitat, the only direct consequence of its 
designation is the Act's requirement that Federal agencies ensure, 
through section 7 consultation, that any action they fund, authorize, 
or carry out does not destroy or adversely modify designated critical 
habitat. While the benefits of excluding non-Federal lands include 
development of new conservation partnerships, those benefits do not 
generally arise with respect to Federal lands, because of the 
independent obligations of Federal agencies under sections 2 and 7 of 
the Act.
    Accordingly, the benefits of including Federal lands in a 
designation are greater than non-Federal lands because there is a 
Federal nexus for projects on Federal lands. Thus, if a project for 
which there is discretionary Federal involvement or control is likely 
to adversely affect the critical habitat, a formal section 7 
consultation would occur and the Services would consider whether the 
project would result in the destruction or adverse modification of the 
critical habitat. The costs that this requirement may impose on Federal 
agencies can be divided into two types: (1) The additional 
administrative or transactional costs associated with the consultation 
process, and (2) the costs to Federal agencies and other affected 
parties, including applicants for Federal authorizations (e.g., 
permits, licenses, leases), of any project modifications necessary to 
avoid destruction or adverse modification of critical habitat.
    Thus, in any exclusion analysis for Federal lands, we will consider 
not only the transactional costs associated with section 7 consultation 
with a Federal agency, but also any potential costs to affected 
parties, including applicants for Federal authorizations (e.g., 
permits, licenses, leases, contracts), that would stem from any project 
modifications that may be required to avoid destruction or adverse 
modification of critical habitat. While we agree that the transactional 
costs of section 7 consultation with Federal agencies tend to be a 
relatively minor cost, we do not wish to foreclose the potential to 
exclude areas under Federal ownership in cases where the benefits of 
exclusion outweigh the benefits of inclusion. Consideration of other 
Federal agency transactional costs and other costs, including those to 
a permittee or lessee, are considered on a case-by-case basis.

BLM Harvest Land Base Lands

    In this final designation, the Secretary has exercised her 
discretion under section 4(b)(2) of the Act to exclude from this 
critical habitat designation 184,133 acres (74,613 hectares) of Harvest 
Land Base lands that are described and managed pursuant to the BLM RMPs 
revised in 2016 (BLM 2016a, 2016b). See table 1 for the unit and 
subunit locations of these exclusions.
    2016 BLM RMP Revisions--In 2011, the Service revised the northern 
spotted owl Recovery Plan (see 76 FR 38575, July 1, 2011), and the 
revised plan recommended ``continued application of the reserve network 
of the NWFP until the 2008 designated spotted owl critical habitat is 
revised and/or the land management agencies amend their land management 
plans taking into account the guidance in this Revised Recovery Plan'' 
(FWS 2011, p. II-3). In 2016, BLM revised its RMPs for western Oregon, 
resulting in two separate plans (BLM 2016a, 2016b). BLM's 2016 revision 
of its RMPs considered the 2011 Recovery Plan recommendations as well 
as the revised critical habitat designation made in 2012. These two BLM 
plans, the Northwestern Oregon and Coastal Oregon Record of Decision 
and Resource Management Plan (BLM 2016a) and the Southwestern Oregon 
Record of Decision and Resource Management Plan (BLM 2016b), address 
all or part of six BLM districts across western Oregon.
    The BLM RMPs provide direction for the management of approximately 
2.5 million acres (1 million hectares) of BLM-administered lands for 
the purposes of producing a sustained yield of timber, contributing to 
the recovery of endangered and threatened species, providing clean 
water, restoring fire-adapted ecosystems, and providing for recreation 
opportunities (BLM 2016a, p. 20). The management direction provided in 
the RMPs is used to develop and implement specific projects and actions 
during the life of the plans.
    The BLM RMP revisions assigned land-use allocations across BLM-
managed lands in western Oregon; the land-use allocations define areas 
where specific activities are allowed, restricted, or excluded. The BLM 
land-use allocations include Late-Successional Reserve, Congressionally 
Reserved Lands and National Conservation Lands, District-Designated 
Reserves, and Riparian Reserve (collectively considered ``reserve'' 
land use allocations) and Eastside Management Area and Harvest Land 
Base (BLM 2016a, pp. 55-74).
    Reserve land-use allocations comprise 74.6 percent (1,847,830 acres 
(747,790 hectares)) of the acres of BLM land under the RMPs (FWS 2016, 
p. 9). These lands are managed for various purposes, including 
preserving wilderness areas, natural areas, and structurally complex 
forest; recreation management; maintaining facilities and 
infrastructure; some timber harvest and fuels management; and 
conserving lands along streams and waterways. Of these lands, 51 
percent (948,466 acres (383,830 hectares)) are designated as Late-
Successional Reserve, 64 percent of which (603,090 acres (244,061 
hectares)) are located within the critical habitat designation for the 
northern spotted owl (FWS 2016, p. 9). The management objectives for 
Late-Successional Reserve are designed to promote older, structurally 
complex forest and to promote or maintain habitat for the northern 
spotted owl and the marbled murrelet (listed as threatened under the 
Act), although some timber harvest of varying intensity is allowed. The 
Revised Recovery Plan for the Northern

[[Page 62649]]

Spotted Owl relies on the Late-Successional Reserve network as the 
foundation for northern spotted owl recovery on Federal lands (FWS 
2011, p. III-41).
    The Harvest Land Base allocation comprises 19 percent (469,215 
acres (189,884 hectares)) of the overall land use allocations and is 
where the majority of programmed timber harvest occurs (FWS 2016, p. 9; 
BLM 2016a, pp. 59-63). Of these acres, 39 percent (184,133 acres 
(74,613 hectares)) are located within the 2012 critical habitat 
designation for the northern spotted owl. Over 90 percent of these 
acres that are allocated to the Harvest Land Base and within designated 
critical habitat (172,712 acres (69,779 hectares)) are located on O&C 
lands. Under the management direction for the Harvest Land Base, timber 
harvest intensity varies based on the suballocation (moderate-intensity 
timber area, light-intensity timber area, or uneven-aged timber area) 
within the Harvest Land Base (BLM 2016a, pp. 59-63).
    The management direction specific to the northern spotted owl (BLM 
2016a, p. 100) applies to all land-use allocations designated in the 
BLM RMPs. This direction provides for the management of habitat to 
facilitate movement and survival between and through large blocks of 
northern spotted owl nesting and roosting habitat.
    Based on new information provided in the revised BLM RMPs (BLM 
2016a, 2016b), we are excluding from critical habitat 184,133 acres 
(74,613 hectares) of BLM lands where programmed timber harvest is 
planned to occur, i.e., the Harvest Land Base as described in the 2016 
RMPs. Approximately 172,712 acres (69,779 hectares) of this Harvest 
Land Base are O&C lands.
Benefits of Inclusion--BLM Harvest Land Base
    As discussed above, the primary effect of designating any 
particular area as critical habitat is the Act's prohibition against 
the destruction or adverse modification of such habitat, which is 
evaluated in consultation with the Service under section 7 of the Act. 
Absent critical habitat designation, Federal agencies remain obligated 
under section 7 of the Act to consult with us on actions that may 
affect a federally listed species to ensure such actions do not 
jeopardize the species' continued existence.
    In general, this obligation to consult regarding effects to 
critical habitat remains a conceptual benefit of inclusion of the 
Harvest Land Base lands in the designated critical habitat. However, we 
completed a programmatic section 7 consultation on the BLM RMPs in 2016 
that specifically addressed the impact of the BLM's plans to undertake 
timber harvest in the Harvest Land Base, including the effects on 
designated critical habitat. In consultation, the Service found that 
the management actions, including the level of timber harvest 
anticipated under these RMPs over the 50-year proposed timeline, was 
not likely to jeopardize the subspecies or destroy or adversely modify 
critical habitat (FWS 2016, pp. 700-703).
    The programmatic approach of our section 7 consultation on the BLM 
RMPs allowed for the broad-scale evaluation of BLM's program to ensure 
that the management direction and objectives of the program are 
consistent with the conservation of listed species, while also 
providing a framework for site-specific consultation at the stepped-
down, project-level scale. As individual projects are proposed under 
these RMPs, BLM consults at the project-specific level with the Service 
as necessary under section 7 to ensure that the site-specific actions 
will not jeopardize the subspecies, or destroy designated critical 
habitat. The step-down consultations also provide an opportunity for 
BLM to further minimize impacts to northern spotted owls as on-the-
ground actions are designed and implemented.
    As described in our Biological Opinion issued to the BLM (FWS 2016, 
pp. 4-5) and compared to a status quo without the BLM RMPs in place, 
the Service expects an overall net improvement in northern spotted owl 
populations on BLM lands under the RMPs, including when taking into 
account any take or adverse impacts to northern spotted owls due to 
timber harvest, fuels management, recreation, and other activities 
occurring under the RMPs. Our analysis of the impacts on the lands 
within the Harvest Land Base recognized that, while this land-use 
allocation was not intended to be relied upon for demographic support 
of northern spotted owls, the management direction under the BLM RMPs 
includes provisions that would contribute to the further development of 
late-successional habitat, including additional critical habitat 
features over time (FWS 2016, p. 553; 77 FR 71876, December 4, 2012, 
pp. 71906-71907). Although late-successional habitat currently existing 
within the Harvest Land Base may not remain on the landscape for the 
long term, the presence of northern spotted owl habitat within the 
Harvest Land Base in the short term would assist in northern spotted 
owl movement (PBF 4) across the landscape and could potentially provide 
refugia from barred owls while habitat continues to mature into more 
complex habitat and develop additional high-quality physical and 
biological features over time in reserved land-use allocations (FWS 
2016, p. 553; 77 FR 71876, December 4, 2012, pp. 71906-71907).
    Several aspects of the RMPs are expected to provide for northern 
spotted owl dispersal between physiographic provinces and between and 
among large blocks of habitat designed to support clusters of 
reproducing northern spotted owls even with the expected focus of 
harvest in the Harvest Land Base (FWS 2016, p. 698): The spatial 
configuration of reserves; the management of those reserves to retain, 
promote, and develop northern spotted owl habitat; and the management 
and scheduling of timber sales within the Harvest Land Base. In 
particular, BLM refined their preferred alternative management approach 
to minimize the creation of strong barriers to northern spotted owl 
east-west movement and survival between the Oregon Coast Range and 
Oregon Western Cascades physiographic provinces, and north-south 
movement and survival between habitat blocks within the Oregon Coast 
Range province, by augmenting its allocation to Late-Successional 
Reserve in those areas (BLM 2016c, p. 17). Therefore, BLM-planned 
timber harvest during the interim period while a barred owl management 
strategy is considered is not expected to substantially influence the 
distribution of northern spotted owls at the local, action area, or 
rangewide scales.
    Of the designated critical habitat on BLM-managed lands in western 
Oregon addressed by the 2016 RMPs, 15 percent of critical habitat is 
designated on the Harvest Land Base and 85 percent is designated on 
other land-use allocations. We determined that the Harvest Land Base 
portion of the BLM landscape will provide less contribution to northern 
spotted owl critical habitat over time, while the reserve portions of 
the BLM lands will provide the necessary contributions for northern 
spotted owl conservation (FWS 2016, p. 554).
    BLM will continue to rely on the effectiveness monitoring 
established under the NWFP for the northern spotted owl and late-
successional and old-growth ecosystems. Effectiveness monitoring will 
assess status and trends in northern spotted owl populations and 
habitat to evaluate whether the implementation of the BLM RMPs is 
reversing the downward trend of populations and maintaining and

[[Page 62650]]

restoring habitat necessary to support viable owl populations (BLM 
2016a).
    In sum, the revised BLM RMPs provide for the conservation of the 
essential PBFs throughout the reserve land-use allocations and 
distribute the impacts to northern spotted owl habitat in the Harvest 
Land Base over time while the habitat conditions in the reserve land-
use allocations improve. Based on our analysis in the Biological 
Opinion on the BLM RMPs (FWS 2016, pp. 700-703) and the BLM's 
conclusions in its records of decision adopting the RMPs, the 
conservation strategies in the RMPs are likely to be effective. These 
conservation measures will continue to be in effect regardless of 
whether the Harvest Land Base areas are designated as critical habitat 
for the northern spotted owl.
    The Harvest Land Base areas provide a relatively low level of 
short-term conservation value for northern spotted owls. Retaining them 
as designated critical habitat, which suggests that they have a 
conservation value similar or equal to that of the reserve lands, sends 
a confusing message to the public and local land managers. Also, 
Federal actions in the Harvest Land Base that may affect designated 
critical habitat require section 7 consultation to address the effect 
on the designated habitat. Our experience in section 7 consultations to 
date indicates that these consultations provide little incremental 
conservation benefit over what is already provided for in these updated 
BLM RMPs and the section 7 consultations for activities that may affect 
the northern spotted owl for review of whether the activities 
jeopardize the subspecies. Section 7 consultations require considerable 
efforts by the involved BLM and Service biologists to identify and 
assess the effects to the designated critical habitat acres and 
increases the transactional time and effort spent on consultations, 
even though the conclusion by the Service has to date been consistently 
that no adverse modification has resulted. Thus, continuing to consult 
on adverse modification of critical habitat for actions in the Harvest 
Land Base is not an efficient use of limited consultation and 
administrative resources, given the thorough section 7 consultation 
already conducted on the 2016 RMPs and in the project-specific 
consultations conducted since the 2016 RMPs. The benefits of continuing 
to include Harvest Land Base areas within critical habitat for the 
northern spotted owl are, therefore, limited.
    Another benefit of including lands in a critical habitat 
designation is that it generally serves to educate landowners, land 
managers, State and local governments, and the public regarding the 
potential conservation value of an area. Identifying areas of high 
conservation value for the northern spotted owl can help focus and 
promote conservation efforts by other parties. Any additional 
information about the needs of the northern spotted owl or its habitat 
that reaches a wider audience can be of benefit to future conservation 
efforts. This function is being achieved with the retention of critical 
habitat in the reserve land-use allocations. As discussed in the 
benefits of exclusion, however, this is is not the case for the BLM 
Harvest Land Base lands.
Benefits of Excluding--BLM Harvest Land Base
    There are appreciable benefits that will be realized by excluding 
Harvest Land Base areas from critical habitat. Executive Order 12866 
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. Excluding Harvest Land Base lands from the northern spotted 
owl critical habitat designation reduces the burden of additional 
section 7 consultation beyond any requirements to consult on effects to 
the subspecies for these lands that serve primarily to meet BLM's 
timber sale volume objectives (see our response to Comment (3) for an 
explanation of the distinction between analyses completed for critical 
habitat versus the subspecies under section 7). As stated above, 
critical habitat in the Harvest Land Base has been determined to have 
relatively lower conservation value when compared to reserve areas, and 
there is a benefit to communicating this distinction to the public and 
land managers. Retaining them as designated critical habitat, which 
suggests that they have a conservation value similar or equal to that 
of the reserve land-use allocation lands, may send a confusing message 
to the public and local land managers, especially given that we 
confirmed in our biological opinion that the 2016 RMPs would not 
destroy or adversely modify this critical habitat. Therefore, excluding 
these Harvest Land Base lands from the critical habitat designation 
would provide some incremental benefit by clarifying that these lands 
(as compared with those in the reserve allocations) do not play a 
primary role in relation to northern spotted owl conservation, and by 
eliminating any unnecessary regulatory oversight.
    In addition, a benefit of exclusion of these lands is that it 
signals our support for the BLM's consideration of the conservation 
needs of the northern spotted owl in its resource management planning 
efforts. By incorporating and addressing those needs at the planning 
level, including engaging with the Service to help ensure a productive 
and robust network of reserves for the northern spotted owl, the BLM 
was able to develop RMPs and land-use allocations that also provide for 
timber production consistent with the conservation of the subspecies. 
This allows the Service to exclude areas to lessen regulatory burdens 
while conserving the northern spotted owl.
Benefits of Exclusion Outweigh the Benefits of Inclusion--BLM Harvest 
Land Base
    The biological and regulatory benefits of including the BLM Harvest 
Land Base in critical habitat are minimal given the management 
objective for this land-use allocation, which is to provide a sustained 
yield of timber. As we determined in our section 7 consultation with 
BLM regarding the RMPs, such management when considered with the other 
elements of habitat management in the RMPs provide for the conservation 
of the owl. Although these lands provide some short-term conservation 
value, we already determined that timber harvest of these areas will 
not result in the destruction or adverse modification of critical 
habitat as that term is defined in our implementing regulations under 
the Act. We have also conducted numerous site-specific consultations 
with the BLM regarding the effects of projects on designated critical 
habitat since the 2016 RMPs went into effect, and we have not found any 
actions that would destroy or adversely modify critical habitat.
    Section 7 consultations to address adverse modification of critical 
habitat for activities within the Harvest Land Base going forward would 
provide no incremental conservation benefit over the conservation 
already provided for in the BLM RMPs. Consultations to address effects 
to designated critical habitat in the Harvest Land Base would not be an 
efficient use of limited consultation and administrative resources that 
could be better utilized to address other forest-related issues, such 
as consultations on critical habitat for forest treatments in Late-
Successional Reserve that improve the quality of northern spotted owl 
nesting, roosting, and foraging habitat or reduce susceptibility to 
disturbances, such as wildfire. Informational benefits of including the 
BLM Harvest Land Base in critical habitat is minimal, and retaining

[[Page 62651]]

these areas as designated critical habitat, which suggests that they 
have a conservation value similar or equal to that of the Late-
Successional Reserve, may be confusing to the public.
    In contrast, the benefits derived from excluding the Harvest Land 
Base outweigh the minimal benefit of including these lands in the 
designation. Excluding these areas clarifies the distinction between 
the management direction for reserves versus the Harvest Land Base. 
Additionally, excluding the Harvest Land Base reduces the unnecessary 
regulatory burden of additional section 7 analysis that will provide no 
additional conservation beyond what is already provided in the BLM RMPs 
and section 7 consultations for the owl under the ``jeopardy'' prong 
and may redirect limited resources towards section 7 consultations on 
actions that would improve critical habitat in the Late-Successional 
Reserve. Thus, the Secretary has determined that the benefits of 
excluding the BLM Harvest Land Base described in the 2016 BLM RMPs from 
the designation of critical habitat for the northern spotted owl 
outweigh the benefit of including these areas in critical habitat.
Exclusion Will Not Result in Extinction--BLM Harvest Land Base
    We find that excluding the Harvest Land Base acres from the 
critical habitat designation, as finalized in this document, will have 
only a minor impact on the long-term conservation of the northern 
spotted owl and its habitat assuming that the conservation measures in 
the BLM RMPs are implemented as planned. Our 2016 Biological Opinion on 
the BLM RMPs found that the management actions anticipated under the 
RMPs, including harvest anticipated in the designated critical habitat 
in the Harvest Land Base, would not jeopardize the subspecies or 
destroy or adversely modify critical habitat (FWS 2016, pp. 700-703). 
Additionally, the Harvest Land Base lands represent only a small 
portion (less than 2 percent) of the overall critical habitat 
designation and represent only 19 percent of the land base managed by 
the BLM under the 2016 RMPs, with the remaining lands largely managed 
as reserves that provide demographic support of northern spotted owls. 
Therefore, and when considering that the remaining 98 percent of 
designated critical habitat is being retained on the landscape, we find 
that these exclusions will not result in extinction of the subspecies.

O&C Lands and Northwest Forest Plan Matrix Lands

    The January Exclusions Rule determined that the benefits of 
exclusion of all O&C lands and NWFP matrix lands from the critical 
habitat designation outweighed the benefits of inclusion. We have 
reconsidered the benefits of inclusion and exclusion and the weighing 
of these benefits in this rule. As stated above, the Secretary has very 
broad discretion under the second sentence of section 4(b)(2) on how to 
weigh the impacts of a critical habitat designation.
    The O&C lands we address here are those O&C lands within the 
designation, about 1.2 million acres (485,623 hectares), that are 
located on lands managed by the BLM outside the BLM's Harvest Land Base 
land-use allocation as determined in the 2016 RMPs, as well as O&C 
lands managed by the USFS. Collectively, these lands (all in Oregon) 
comprise other land-use allocations, the majority (77 percent) of which 
are Late-Successional Reserve and Riparian Reserve, and occur on lands 
managed by both the BLM (about 970,723 acres (392,837 hectares)) and 
USFS (about 237,561 acres (96,137 hectares)). The USFS matrix lands 
altogether (in three States) included in the 2012 critical habitat 
designation total about 2.1 million acres and (849,840 hectares) are 
managed by the USFS under the NWFP generally for timber harvest. The 
USFS manages some lands within the designated critical habitat that 
overlap, i.e., areas that are both O&C lands and allocated as 
``matrix'' (about 75,818 acres (30,682 hectares)).
    Background on O&C Lands--The O&C lands were revested to the Federal 
Government under the Chamberlin-Ferris Act of 1916 (39 Stat. 218). The 
Oregon and California Revested Lands Sustained Yield Management Act of 
1937, Pub. L. 75-405 (O&C Act), addresses the management of O&C lands. 
The O&C Act identifies the primary use of revested timberlands for 
permanent forest production. These lands occur in western Oregon in a 
checkerboard pattern intermingled with private land across 18 counties. 
The intermingled private lands are largely industrial timberlands 
managed primarily for timber production; as such, these private lands 
contain very little high-quality habitat for the northern spotted owl 
(and no designated critical habitat). Most of the O&C lands (82 
percent) are administered by BLM (FWS 2019, p. 1) pursuant to its RMPs. 
BLM's RMPs identify certain revested timberlands for commercial timber 
harvest. The O&C Act provides that these lands be managed ``for 
permanent forest production, and the timber thereon shall be sold, cut, 
and removed in conformity with the principle of sustained yield for the 
purpose of providing a permanent source of timber supply, protecting 
watersheds, regulating stream flow, and contributing to the economic 
stability of local communities and industries, and providing 
recreational facilities.'' The counties where O&C lands are located 
participate in a revenue-sharing program with the Federal government 
based on commercial receipts (e.g., income from commercial timber 
harvest) generated on these Federal lands.
    Since the mid-1970s, scientists and land managers have recognized 
the importance of forests located on O&C lands to the conservation of 
the northern spotted owl and have attempted to reconcile this 
conservation need with other land uses (Thomas et al. 1990, entire). 
Starting in 1977, BLM worked closely with scientists and other State 
and Federal agencies to implement northern spotted owl conservation 
measures on O&C lands. Over the ensuing decades, the northern spotted 
owl was listed as a threatened species under the Act (55 FR 26114, June 
26, 1990), critical habitat was designated (57 FR 1796, January 15, 
1992) and revised two times (73 FR 47326, August 13, 2008; 77 FR 71876, 
December 4, 2012) on portions of the O&C lands, and a recovery plan for 
the owl was completed (73 FR 29471, May 21, 2008, p. 29472) and revised 
(76 FR 38575, July 1, 2011). These and other scientific reviews 
consistently recognized the need for large portions of the O&C forest 
to be managed for northern spotted owl conservation while also 
providing for other uses of these lands.
    Background on USFS Matrix Lands--The USFS matrix lands are managed 
under the 1994 NWFP amendments to forest plans and support timber 
production while also retaining some biological legacy components 
important to old-growth obligate species that would persist into future 
managed timber stands. Matrix lands occur across the range of the 
northern spotted owl in Washington, Oregon, and California. This land-
use allocation was first identified in 1994. In 2012, we designated as 
critical habitat a subset of USFS matrix lands--those matrix lands that 
contain the features essential to the conservation of the subspecies 
and function as highly valuable northern spotted owl habitat. These 
areas are essential to providing for demographic support and successful 
dispersal of the

[[Page 62652]]

northern spotted owl and for buffering competition with the barred owl.
    Although we work closely with the USFS to incorporate northern 
spotted owl conservation considerations into the USFS's ongoing land 
management actions through the section 7 consultation process, the USFS 
has not yet revised its forest plans and applied the recommendations of 
the 2011 Revised Recovery Plan nor expressly taken into consideration 
the 2012 critical habitat designation into these plans as has the BLM 
with their 2016 RMPs. The USFS has, however, initiated efforts to 
update the individual forest plans in the range of the northern spotted 
owl and is expected to complete this process in coming years. We will 
continue to work closely with the USFS to address the conservation 
needs of the northern spotted owl as the agency updates its various 
forest plans.
Benefits of Inclusion--O&C Lands and Matrix Lands
    As discussed above, the primary effect of designating any 
particular area as critical habitat is the requirement for Federal 
agencies to consult with us under section 7 of the Act to ensure 
actions they carry out, authorize, or fund do not destroy or adversely 
modify designated critical habitat. Absent critical habitat 
designation, Federal agencies remain obligated under section 7 of the 
Act to consult with us on actions that may affect a federally listed 
species to ensure such actions do not jeopardize the species' continued 
existence. The January Exclusions Rule stated that the benefits of 
including the O&C lands and matrix lands are small because agencies 
would still be required to ensure that discretionary actions they fund, 
authorize, or carry out would not jeopardize the continued existence of 
the subspecies, regardless of whether those lands are designated as 
critical habitat. Upon reconsideration, we find that the section 7 
consultations on critical habitat provide significant benefits as 
described below.
    The critical habitat designation benefits the northern spotted owl 
as a rangewide conservation strategy and network that connects large 
blocks of habitat that are able to support multiple clusters of 
northern spotted owls. Both the O&C lands and USFS lands included in 
the designation provide connectivity and habitat areas in a spatial 
configuration that is essential to the conservation of the northern 
spotted owl. The O&C lands, for example, encompass 37 percent of the 
lands that were covered under the NWFP in Oregon and provide important 
habitat for reproduction, connectivity, and survival in the Coast Range 
and portions of the Klamath Basin; they provide connectivity through 
the Coast Range; and they provide connectivity between the Coast Range 
and western Cascades (Thomas et al. 1990, p. 382, BLM 2016c, p. 17). 
Similarly, USFS matrix lands within the designation provide 2.14 
million acres of important habitat and connectivity across all three 
States. Our 2012 final critical habitat designation reduced the amount 
of matrix lands from what we proposed to ensure that only essential 
habitat was designated (77 FR 71876; 71889). Our evaluation in the 2012 
critical habitat rule found that we cannot achieve recovery of the 
northern spotted owls without the majority of O&C lands and remaining 
matrix lands currently designated as critical habitat. Additionally, 
recent scientific findings and our December 15, 2020, finding (and 
supporting species report) that the northern spotted owl warrants 
reclassification to endangered status emphasize the importance of 
maintaining habitat in light of competition with barred owls (Wiens et 
al. 2021, pp. 1, 2; Franklin et al. 2021, p. 18; 85 FR 81144; FWS 2020, 
p. 83).
    The critical habitat designation also identifies areas on the 
landscape that may require special management considerations or 
protection. These considerations are of even more importance given the 
statutory purpose of the O&C lands and the management direction for 
USFS matrix lands that focus primarily on commercial timber harvest 
(see Special Management Considerations and Protection in our 2012 
critical habitat rule (77 FR 71876; p. 71908)). Through the critical 
habitat designation and the section 7 consultation process, the Service 
is able to work collaboratively with the USFS and the BLM to help 
design how timber harvest can occur in these areas while also 
minimizing impacts to spotted owl recovery.
    Conserving extant, high-quality habitat and addressing the threat 
from barred owls are key components of the special management 
considerations in our 2012 critical habitat rule as well as our 
biological opinion on the BLM's 2016 RMPs. Because the barred owl is 
present throughout the range of the northern spotted owl, special 
management considerations or protections may be required in all or many 
of the critical habitat units and subunits to ensure the northern 
spotted owl has sufficient habitat available to withstand competitive 
pressure from the barred owl (Dugger et al. 2011, pp. 2459, 2467; 
Franklin et al. 2021, p. 18; 85 FR 81144; FWS 2020, p. 83; Wiens et al. 
2021, pp. 1, 2). In particular, studies by Dugger et al. (2011, p. 
2459) and Wiens (2012, entire) indicated that northern spotted owl 
demographic performance is better when additional high-quality habitat 
is available in areas where barred owls are present.
    Additionally, scientific peer reviewers of the 2011 Revised 
Recovery Plan for the Northern Spotted Owl (FWS 2011, entire) and 
Forsman et al. (2011, p. 77) recommended that we address currently 
observed downward demographic trends in northern spotted owl 
populations by protecting currently occupied sites, as well as 
historically occupied sites, and by maintaining and restoring older and 
more structurally complex multilayered conifer forests on all lands 
(FWS 2011, pp. III-42 to III- 43).
    The types of management or protections that may be required to 
achieve these goals and maintain the physical or biological features 
essential to the conservation of the owl in occupied areas vary across 
the range of the subspecies. Some areas of northern spotted owl 
habitat, particularly in wetter forest types, are unlikely to be 
enhanced by active management activities, but instead need protection 
of the essential features; whereas other forest areas would likely 
benefit from more proactive forestry management. For example, in drier, 
more fire-prone regions of the owl's range, habitat conditions will 
likely be more dynamic, and more active management may be required to 
reduce the risk to the essential physical or biological features from 
fire, insects, disease, and climate change, as well as to promote 
regeneration following disturbance. The designation of these areas as 
critical habitat benefits the subspecies by ensuring that the special 
management considerations identified in the 2012 critical habitat rule 
are considered in the design and implementation of timber harvest 
projects in these areas.
    The additional analysis required for critical habitat in a section 
7 consultation requires action agencies to evaluate the effects of 
their actions on the critical habitat components that support the life 
history of the northern spotted owl regardless of whether the area is 
currently occupied by northern spotted owls; these are identified in 
the critical habitat rule as the physical and biological features (or 
primary constituent elements) that provide for nesting, roosting, 
foraging, and dispersal. In our consultations, the Service evaluates 
how those actions affect the conservation value of the critical habitat 
subunit to provide those features, and the analysis is then scaled up 
to evaluate those effects at the

[[Page 62653]]

critical habitat unit scale and the critical habitat designation as a 
whole. Evaluating habitat at multiple scales in consultations on timber 
harvest actions in critical habitat ensures the landscape continues to 
support the habitat network locally, regionally, and rangewide.
    We previously concluded in a Biological Opinion that the BLM's 2016 
RMPs provide adequate contributions for the recovery of the spotted 
owl, and thus the exclusion of the Harvest Land Base lands from 
critical habitat and some harvest of these lands is likewise consistent 
with recovery. In reconciling the sometimes conflicting goals of 
spotted owl recovery with providing a reliable timber harvest from 
Federal lands, we worked with BLM in their 2016 RMPs to greatly 
minimize impacts to spotted owls. We conclude that the relatively small 
amount of impact to spotted owls from timber harvest on these BLM lands 
is offset by the increase in conservation of extant forest on BLM 
lands, the recruitment of improved habitat in the future on those 
lands, and the BLM's commitment to help manage barred owls.
    In contrast, we do not yet have an updated programmatic Biological 
Opinion on USFS land management plans that addresses critical habitat 
for the northern spotted owl, although the USFS completes section 7 
consultation with us at the project level on actions that affect 
critical habitat for the subspecies. To date, our review in section 7 
consultations has found all proposed timber harvest under the NWFP on 
National Forest System lands in critical habitat to: (1) Be compatible 
with northern spotted owl conservation, and (2) not destroy or 
adversely modify critical habitat. These consultations on critical 
habitat provide a benefit to the northern spotted owl in that they 
provide an opportunity for the Service to review projects that will 
occur within critical habitat to ensure the function of the network 
will remain intact. We conclude that review of projects proposed in 
critical habitat on USFS matrix lands and O&C lands through the ongoing 
section 7 consultation processes under current land management plans 
continues to be an appropriate way to evaluate effects of USFS and BLM 
actions on critical habitat function and is an important benefit of 
including these lands in the critical habitat designation.
    Another benefit of including lands in a critical habitat 
designation is that it generally serves to educate landowners, State 
and local governments, and the public regarding the potential 
conservation value of an area. Identifying areas of high conservation 
value for the northern spotted owl can help focus and promote 
conservation efforts by other parties. Any additional information about 
the needs of the northern spotted owl or its habitat that reaches a 
wider audience can be of benefit to future conservation efforts. There 
is a benefit to communicating to the public and land managers that 
despite the O&C lands and matrix lands designations, the habitat areas 
found on these lands are essential to the conservation of the northern 
spotted owl.
    We work closely with both the BLM and USFS in our coordinated 
section 7 consultation processes, and have a keen understanding of the 
agencies' mission and mandates. Our local biologists meet regularly to 
discuss upcoming and ongoing Federal projects and their effects to both 
the subspecies and its critical habitat, and to address any concerns 
about the section 7 consultation process. Additionally, we meet 
regularly with local and regional forest managers with both agencies. 
This process and partnership, established under the NWFP, has been 
effective for many years. We conclude that this collaborative approach, 
which includes reviewing projects and discussing how they affect the 
physical and biological features of critical habitat for the northern 
spotted owl, is a benefit of including these lands in the critical 
habitat designation.
Benefits of Exclusion--O&C Lands and Matrix Lands
    There would be benefits realized by excluding O&C lands and USFS-
managed matrix lands from critical habitat. Executive Order 12866 
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. Excluding O&C lands and USFS-managed matrix lands from the 
northern spotted owl critical habitat designation would reduce the 
burden of additional section 7 consultation beyond any requirements to 
consult on effects to the subspecies for these lands (see our response 
to Comment (3) for an explanation of the distinction between analyses 
completed for critical habitat versus the species under section 7). The 
January Exclusions Rule stated that eliminating the requirement to 
complete section 7 consultation on critical habitat, in effect 
lessening one of the regulatory hurdles, could lead to increased timber 
production in support of the management of the O&C lands for the 
production of timber. The January Exclusions Rule further stated that, 
because land management plans or amendments would undergo programmatic 
section 7 consultation to ensure that management actions do not 
jeopardize the continued existence of the subspecies, consulting on 
critical habitat is not an efficient use of limited consultation and 
administrative resources.
    Upon reconsideration, however, we find greater value in continuing 
to consult programmatically and at the project level under section 7 on 
critical habitat on O&C lands outside of those allocated by BLM to the 
Harvest Land Base, and on USFS-managed matrix lands. The benefits 
derived in these section 7 consultations to address effects to critical 
habitat ensure special management considerations are taken into account 
when designing and implementing landscape-scale management programs and 
subsequent timber harvest projects within critical habitat. The 
consultations allow the Service to evaluate the effects on the 
functionality of the critical habitat network, and ensure that 
functionality is not significantly impaired. Since the implementation 
of the 2016 RMPs, we have the benefit of several years of experience in 
section 7 consultations with the BLM regarding the effect of proposed 
actions on the O&C lands. We find that focusing our consultation and 
administrative capacity on section 7 consultations in the O&C lands 
outside of the BLM's Harvest Land Base lands is a priority given that 
the majority of this area is designated as Late-Successional Reserve 
and Riparian Reserve that contribute essential habitat for the northern 
spotted owl. Likewise, we find that focusing our resources on 
consultations in the USFS-managed matrix lands is also a priority given 
that programmatic consultation has not occurred for critical habitat on 
these lands.
    Additionally, as stated above, the O&C lands outside of the BLM 
Harvest Land Base allocation, and USFS-managed matrix lands included in 
the critical habitat designation, provide areas of higher-quality 
habitat that owls prefer for nesting, roosting, and foraging behavior 
and lower-quality habitat to provide for dispersal for northern spotted 
owls. Excluding them as designated critical habitat, which suggests 
that they have a conservation value that is less than that of the 
reserve land-use allocation lands, may send a confusing message to the 
public and local land managers. Therefore, the benefit of excluding the 
O&C lands and

[[Page 62654]]

USFS matrix lands from the critical habitat designation is reduced.
    Based on our FEA (IEc 2012), we found that the most potential for 
economic impacts from the critical habitat designation would occur in 
relation to ``unoccupied matrix lands'' (at the time of the 2012 
designation, BLM's Harvest Land Base lands were also considered matrix 
lands under the NWFP), which is where the difference between habitat 
being designated as critical, or not, would likely make the most 
difference. ``Unoccupied matrix lands'' in the FEA means areas of 
forested habitat (generally of less high quality relative to northern 
spotted owl needs) that at the time of the proposed project being 
consulted on under section 7 would not have resident northern spotted 
owls.
    In the absence of a critical habitat designation, the Federal 
agency would have to first evaluate whether or not the proposed habitat 
modification would have an effect on northern spotted owls. Generally 
speaking, if there are no resident owls present and the habitat is not 
of particularly high quality nor designated as critical, Federal 
actions that would modify that habitat are less likely to create an 
adverse effect on the owl at an individual, let alone species level. 
And, in some cases, especially if the habitat to be modified is of 
marginal quality for the owl, the Federal agency may determine there is 
no effect on the species at all, in which case no section 7 
consultation with the Service is required. If, on the other hand, the 
habitat being modified by the Federal action is designated as critical 
habitat, the current presence or absence of owls in the area is less 
relevant because the effect being analyzed is to that habitat, and the 
effect of the modification on the conservation value of the habitat for 
the species has to be considered. Thus, the critical habitat 
designation could require the Federal agency to undertake consultation 
with the Service and be precluded from adverse modification of the 
designated critical habitat, in an area where, absent that designation, 
the Federal agency might not have to consult at all because of the 
absence of effects to the species.
    However, the FEA of the 2012 critical habitat designation for the 
northern spotted owl found the incremental effects of the designation 
to be relatively small due to the extensive conservation measures 
already in place for the subspecies because of its listed status under 
the Act and because of the measures provided under the NWFP (USFS and 
BLM 1994) and other conservation programs (IEc 2012, pp. 4-32, 4-37). 
The incremental effects included: (1) An increased workload for action 
agencies and the Service to conduct reinitiated section 7 consultations 
for ongoing actions in newly designated critical habitat (areas 
proposed for designation that were not already included within the 
extant designation); (2) the cost to action agencies of including an 
analysis of the effects to critical habitat for new projects occurring 
in occupied areas of designated critical habitat; and (3) potential 
project alterations in areas where owls are not currently present 
within designated critical habitat.
    The FEA (IEc 2012) evaluated three scenarios to capture the full 
range of potential economic impacts of the designation. The first 
scenario contemplates that minimal or no changes to current timber 
management practices will occur, thus the incremental costs of the 
designation would be predominantly administrative. The potential 
additional administrative costs due to critical habitat designation on 
Federal lands range from $185,000 to $316,000 on an annualized basis 
for timber harvest. The second scenario posits that Federal agencies 
may choose to implement management practices that yield an increase in 
timber harvest relative to the baseline (current realized levels of 
timber harvest). For this scenario, baseline harvest projections were 
scaled upward by 10 percent, resulting in a positive impact on Federal 
lands ranging from $893,000 to $2,870,000 on an annualized basis for 
timber harvest. The third scenario considers that action agencies may 
choose to be more restrictive in response to critical habitat 
designation, resulting in a decline in harvest volumes relative to the 
baseline. To illustrate the potential for this effect, baseline harvest 
projections were scaled downward by 20 percent, resulting in a negative 
impact on timber harvest on Federal lands ranging from $2,650,000 to 
$6,480,000 on an annualized basis.
    The USFS and BLM suggested certain alterations to the baseline 
timber harvest projections, based on differing assumptions regarding 
northern spotted owl occupancy in matrix lands and projected levels of 
timber harvest relative to historical yields. The FEA presents the 
results of a sensitivity analysis considering these alternative 
assumptions, which widen the range of annualized potential impacts to 
Federal timber harvest relative to the scenarios described above (IEC 
2012b, pp. 4-37 to 4-39). This sensitivity analysis contemplated a 
situation in which 26.6 percent of northern spotted owl habitat on BLM 
matrix lands is unoccupied, and a 20 percent increase in baseline 
timber harvest in USFS Region 6 relative to historical yields. The 
range of incremental impacts under these alternative assumptions widens 
to a potential annualized increase of $700,000 under Scenario 2, and an 
annualized decrease of $1.4 million under Scenario 3, relative to the 
results reported above.
    The January Exclusions Rule states that, recognizing the expertise 
of locally elected governments in areas relating to economic stability, 
exclusion of the O&C and matrix lands would benefit local counties and 
communities by supplying jobs and county revenues for schools and 
roads, and protecting the local tax base. In our reconsideration of 
that rule, we agree that economic benefits to the counties may 
ultimately accrue if O&C lands and matrix lands were excluded from the 
critical habitat designation because there would be a potential 
increase in timber harvest in some areas where, but for the critical 
habitat designation, the habitat modification would not be precluded 
via the Act otherwise. However, our 2012 FEA identified a range of 
potential outcomes due to the designation, including positive and 
negative effects. The analysis identified those counties that may be 
more sensitive to future changes in timber harvests, industry 
employment, and Federal land payments. Potential timber harvest changes 
related to critical habitat designation, whether positive, negative, or 
neutral, are one potential aspect of this sensitivity. The counties 
identified as relatively more sensitive to future changes in timber 
harvests, employment, and payments were Del Norte and Trinity Counties, 
California; Douglas and Klamath Counties, Oregon; and Skamania County, 
Washington. With regard to jobs, increases or decreases in timber 
harvests from Federal or private lands could result in positive or 
negative changes in jobs, respectively. The FEA notes that many factors 
affect timber industry employment (IEc 2012, Chapter 6). The scope of 
our analysis was limited to the incremental effects of critical habitat 
within the area proposed for designation by the northern spotted owl. 
The FEA did not consider potential changes in timber activities outside 
the proposed critical habitat designation, and did not evaluate the 
potential effects related to the timber industry as a whole.
    We also considered information concerning economic impacts 
submitted by commenters, including AFRC and several counties, in the 
Brattle Report and Brattle supplement. See our responses to Comments 
(20-23) addressing several issues with the

[[Page 62655]]

analysis provided in the Brattle reports, specifically the assumptions 
or data used to produce the estimate of negative annualized timber 
harvest impacts due to the critical habitat designation. As discussed 
in our responses to Comments (20-23), we do not agree with their 
ultimate conclusions and find that the FEA provides the best available 
information on the incremental impacts of the 2012 critical habitat 
designation, as supplemented by the additional information provided by 
IEc (IEc 2020, 2021). Commenters also provided comments referring to 
Sierra Institute for Community and Environment and Spatial Informatics 
Group, titled ``Response to the Economic Analysis of Critical Habitat 
Designation for the Northern Spotted Owl by Industrial Economics.'' We 
addressed this report in our 2012 critical habitat rule; see our 
responses to Comments (201-213) in that rule (77 FR 71876; 72040-
72043).
    The January Exclusions Rule stated that making more lands available 
for timber harvest could lead to longer cycles between harvests or to 
harvests designed to benefit the northern spotted owl and reduce the 
risk of catastrophic wildfire, and that northern spotted owls can use 
second-growth timber that leaves a few snags or old trees on the 
harvested land. Upon reconsideration, we find there is much uncertainty 
about the potential that harvest cycles would be extended were the O&C 
lands and USFS matrix lands excluded. Rotation ages of federally 
managed lands are determined by the BLM and USFS considering a wide 
range of information and responsibilities, not just related to the 
northern spotted owl, or even the Act. In addition, the assumption in 
the January Exclusions Rule that excluding the O&C lands and USFS 
matrix lands would improve the management of Federal forested lands to 
reduce wildfire risks rests on an incorrect assumption that the 
critical habitat designation generally precludes habitat management to 
reduce wildlife risk. As stated throughout the 2012 critical habitat 
rule, active management of forests is encouraged, where appropriate, to 
reduce the risk of catastrophic wildfire.
    We agree that while northern spotted owls may use second-growth 
forests, this is not their preferred habitat for meeting all of their 
life history needs. Their use of these areas is dependent on the age, 
diversity, and condition of those forests as well as on their proximity 
to large blocks of habitat that provide for reproduction and population 
growth. Scientific peer reviewers of the 2011 Revised Recovery Plan for 
the Northern Spotted Owl (FWS 2011, entire) and Forsman et al. (2011, 
p. 77) recommended that we address currently observed downward 
demographic trends in northern spotted owl populations by protecting 
currently occupied sites, as well as historically occupied sites, and 
by maintaining and restoring older and more structurally complex 
multilayered conifer forests on all lands (FWS 2011, pp. III-42 to III- 
43).
Benefits of Inclusion Outweigh the Benefits of Exclusion--O&C Lands and 
Matrix Lands
    When weighing the benefits of inclusion and the benefits of 
exclusion of areas, we analyze and give weight to impacts and benefits 
consistent with expert or firsthand information in areas outside the 
scope of the Service's expertise unless we have knowledge or material 
evidence that rebuts that information. Impacts outside the scope of the 
Service's expertise include, but are not limited to, nonbiological 
impacts identified by federally recognized Indian Tribes; State or 
local governments; and permittees, lessees, or contractor applicants 
for a permit, lease, or contract on Federal lands. We also analyze and 
give weight to economic or other relevant impacts relative to the 
conservation value of the area being considered. We give weight to 
those benefits based on the Service's expertise.
    We considered economic information submitted from commenters in the 
Brattle Report and supplement; however, the 2012 FEA (IEc 2012) and 
subsequent review of the report and supplement by IEc rebuts the 
information in those reports (IEc 2020, 2021). We acknowledge there is 
uncertainty over whether economic impacts will occur and to what 
extent, as well as uncertainty over whether exclusion of the O&C lands 
and matrix lands would result in economic benefits to the counties and 
communities where critical habitat is designated. We also acknowledge 
that the economic impacts, depending on the analysis and assumptions 
used, are not insignificant. However, even assuming the high end of the 
economic impacts identified in our economic analysis, or the higher 
economic impacts suggested by some commenters, such as AFRC and 
counties, based on the Brattle Report and supplement, ultimately we 
give greater weight to the conservation value of the O&C lands and USFS 
matrix lands than to potential economic benefits of excluding these 
lands, for the following reasons.
    First, these areas are of significant conservation value to the 
spotted owl given the geographical location of the O&C lands and USFS 
matrix lands and the essential habitat they provide for the northern 
spotted owl. Our evaluation of the O&C lands and matrix lands in our 
2012 critical habitat rule, and that of peer reviewers who reviewed the 
rule, demonstrates their importance to the conservation of the northern 
spotted owl. Additionally, our evaluation of a habitat network with 
reduced areas of high-value habitat on O&C lands and USFS matrix lands 
indicated a significant increase in extinction risk to the subspecies.
    Second, our evaluation of the best available information on the 
status of the subspecies resulted in our recent finding that the 
northern spotted owl's status has declined such that we would be 
warranted in concluding that is now an ``endangered'' species under the 
Act, and not just ``threatened,'' i.e., it is in danger of extinction 
throughout all or a significant portion of its range and warrants 
reclassification, but that such ``uplisting'' is precluded by other 
priorities (such as work to evaluate whether to list a species not 
already on the list). This ``warranted but precluded'' finding, which 
was made just prior to the January Exclusions Rule, reinforces the 
importance of ensuring essential habitat remains across the landscape 
conservation network provided by the designation.
    Third, subsequent to this ``warranted but precluded'' finding, the 
most recent demographic meta-analysis (Franklin et al. 2021) found that 
northern spotted owls are declining at an accelerated rate (5.3 percent 
across their range), and populations in Oregon and Washington have 
declined by over 50 percent, with some declining by more than 75 
percent, since 1995.
    Fourth, the requirement for the USFS and BLM to consult with the 
Service concerning proposed impacts to critical habitat in the O&C 
lands outside of the BLM's Harvest Land Base and on the USFS matrix 
lands provides for meaningful coordination between the Service and the 
agencies regarding actions they are proposing and the needs of the 
northern spotted owl, providing a conservation benefit to owl recovery 
in Oregon, California, and Washington. The benefits derived in these 
section 7 consultations ensure special management considerations are 
taken into account when designing and implementing timber harvest 
projects within critical habitat and provide an opportunity to evaluate 
the effects those projects have on the functionality of the critical 
habitat network given the nature of projects that are likely to occur 
in these areas.

[[Page 62656]]

    Fifth, designation of these areas as critical habitat clearly and 
unambiguously communicates to the public their disproportionate 
conservation value to spotted owl recovery, while excluding them from 
critical habitat would serve to confuse the public about their 
importance.
    In sum, we find that the benefits of retaining as critical habitat 
the areas of O&C lands (outside of BLM's Harvest Land Base) and the 
currently designated USFS matrix lands outweigh the benefits of 
excluding these areas from critical habitat.
Exclusion Will Result in Extinction--O&C Lands and Matrix Lands
    Under section 4(b)(2) of the Act, the Secretary cannot exclude 
areas from critical habitat if she finds, ``based on the best 
scientific and commercial data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species concerned.'' We find, contrary to the January Exclusions Rule, 
that even were we to conclude that the benefits of exclusion of the O&C 
Act lands and the USFS matrix lands outweighed the benefit of their 
inclusion, their exclusion would result in the extinction of the 
northern spotted owl, and so such exclusion is prohibited under the 
Endangered Species Act. See also our analysis in Withdrawal of the 
January Exclusions Rule above.
    There are large areas of important high-quality northern spotted 
owl habitat located on O&C lands and USFS matrix lands that were 
designated as critical habitat in 2012. Lower-quality habitat also 
occurs within these lands that provide for connectivity between areas 
of higher-quality habitat and nesting and roosting when higher-quality 
habitat is not available in a particular location. The 2012 critical 
habitat designation included northern spotted owl habitat in reserve 
land-use allocations, O&C lands, and the matrix that we found essential 
for the conservation of the subspecies based on our modeling results, 
expert biological opinion, and peer review. We determined that we 
cannot attain recovery of the northern spotted owl without conserving 
the habitat on these lands and that excluding them significantly 
increased the risk of extinction. Peer reviewers of both the Revised 
Recovery Plan for the Northern Spotted Owl (FWS 2011) and our proposed 
rule to revise critical habitat in 2012 supported this finding.
    The January Exclusions Rule stated that, because competition with 
barred owls is the largest negative contributing factor to the decline 
of northern spotted owls, barred owl management must occur in order to 
protect the northern spotted owl from extinction. Upon reconsideration, 
we agree that barred owl management is necessary to prevent extinction 
of the northern spotted owl but also find that a reduction in habitat 
conservation (through exclusions from designated critical habitat) at 
the scale of all O&C lands and USFS matrix lands, in concert with the 
impacts from the barred owl, will result in the extinction of the 
northern spotted owl. As discussed in our recent 12-month finding and 
supporting documentation, the subspecies is in precipitous decline and 
warrants reclassification as endangered (85 FR 81144, December 15, 
2020)--that is, the subspecies is in danger of extinction throughout 
all or a significant portion of its range. The northern spotted owl has 
experienced rapid population declines and potential extirpation in 
Washington and parts of Oregon, is functionally extirpated from British 
Columbia, and continues to exhibit similar declines in other parts of 
the range. Northern spotted owls are declining at a rate of 5.3 percent 
across their range, and populations in Oregon and Washington have 
declined by over 50 percent, with some declining by more than 75 
percent, since 1995 (Franklin et al. 2021). Franklin et al. (2021, p. 
18) emphasizes the importance of maintaining northern spotted owl 
habitat, regardless of occupancy, in light of competition from barred 
owls to provide areas for recolonization and connectivity for 
dispersing northern spotted owls. Exclusion of large areas of critical 
habitat undermines this principle.
    The January Exclusions Rule stated that, although 3.4 million acres 
(1.4 million hectares) were excluded in that rule, the conservation 
provided to northern spotted owls in national parks and designated 
wilderness areas would ensure that the subspecies would not become 
extinct. See our reconsideration of the conservation value provided by 
these lands in our response to Comment (Cii). As we stated in our July 
20, 2021, proposal, some of these areas are widely dispersed and cannot 
be relied on to sustain the subspecies unless they are part of and 
connected to a wider reserve network as provided by the 2012 critical 
habitat designation (77 FR 71876).
    The January Exclusions Rule further stated that section 7 
consultations on the subspecies would ensure the exclusion of the lands 
would not result in extinction of the northern spotted owl. As we 
discussed previously, section 7 consultations regarding whether or not 
a Federal action that adversely affects the species will ultimately 
jeopardize the continued existence of the species is an important tool 
for protecting a species even in absence of a critical habitat 
designation. Upon further review, however, that protection against 
``jeopardy'' is not a complete stand-in for an analysis of effects to 
important habitat necessary for the subspecies, particularly when 
considering the difference in scale between the January Exclusions Rule 
and what we exclude in this final rule.
    In this final rule, we are excluding about two percent of the 
designated critical habitat based on a programmatic consultation that 
considered the long-term effects of removal of that habitat by timber 
harvest and found it would not adversely modify the critical habitat, 
nor jeopardize the subspecies. We have since then conducted a number of 
evaluations in consultation on site-specific projects removing habitat 
in the Harvest Land Base and have again concluded, based on the best 
scientific information, that the actions will not result in the adverse 
modification of the value of the critical habitat to the subspecies nor 
result in jeopardy to the subspecies. These together give us confidence 
in the appropriateness of the exclusions we finalize today.
    The January Exclusions Rule, on the other hand, would have excluded 
nearly 36 percent of the current designated critical habitat, without 
benefit of a programmatic approach by the relevant Federal land-
managing agencies and a section 7 consultation to confirm the effects 
would not adversely modify the critical habitat for the subspecies nor 
would jeopardize it. Neither do we have the experience of several years 
of consultations at a project-specific level to consider the effects of 
removal of this habitat from the landscape and affirm it would not 
jeopardize the subspecies. To the contrary, based on the information we 
have, we conclude that such exclusions would result in the extinction 
of the owl. In such an instance, reliance on the section 7 ``jeopardy'' 
standard in future consultations alone is not a sufficient basis to 
affirm the benefits of exclusion.
    The NWFP and the BLM RMPs provide adequate landscape-scale 
conservation for the northern spotted owl while allowing for relatively 
small areas of critical habitat to be harvested over time. Exclusion of 
all the O&C lands (including currently allocated to reserves) and all 
the USFS matrix lands could enable subsequent land management plan 
changes that would support habitat removal in areas that are essential 
to the conservation of the northern spotted owl. Exclusion of these O&C 
lands and USFS matrix lands

[[Page 62657]]

would not only preclude the recovery of the northern spotted owl (as we 
determined in 2012), but given the most recent and best available 
information we also find it would result in the subspecies' extinction. 
Given that northern spotted owls are long-lived and widely dispersed 
over a large, geographic range, extinction would not be immediate but 
would result if these lands were excluded.

State Lands

    We also evaluated whether additional exclusions from the critical 
habitat designation under section 4(b)(2) of the Act should be 
considered on State lands. In our December 4, 2012, critical habitat 
designation (77 FR 71876), we excluded State lands in Washington and 
California that were covered by HCPs and other conservation plans. In 
Oregon, State agencies are currently working on HCPs that will address 
State forest lands in western Oregon, including the Elliott State 
Forest (managed by the Oregon Department of State Lands) and other 
State forest lands in western Oregon (managed by the Oregon Department 
of Forestry).
    Habitat conservation plans in support of applications for 
incidental take permits under section 10(a)(1)(B) of the Act must be 
consistent with the long-term recovery needs of the species. When we 
undertake a discretionary section 4(b)(2) exclusion analysis, we 
consider areas covered by an HCP that have been authorized by a permit 
under section 10 of the Act, and generally exclude such areas from a 
designation of critical habitat if three conditions are met: (1) 
Whether the permittee is properly implementing the conservation plan or 
agreement;; (2) whether the species for which critical habitat is being 
designated is a covered species in the conservation plan or agreement; 
and (3) whether the conservation plan or agreement specifically 
addresses the habitat of the species for which critical habitat is 
being designated and meets the conservation needs of the species in the 
planning area.
    The proposed State forest HCPs and any section 10 permitting 
decisions by the Service will not be completed prior to the publication 
of this document; thus, we are not able to assess all of the above 
criteria. As a result, we are not excluding additional State lands from 
the critical habitat designation for the northern spotted owl.

Available Conservation Measures

    In publishing final rules to carry out the purposes of the Act, we 
include a description of any conservation measures available under the 
rule. As this rule is a revision to critical habitat excluding certain 
areas from that designation, there are no particular conservation 
measures specifically available under this rule. Rather, the 
conservation measures already in place and available to the entities 
managing the excluded lands (the BLM, the Confederated Tribes of Coos, 
Lower Umpqua, and Siuslaw Indians, and the Cow Creek Band of Umpqua 
Tribe of Indians) remain available and unaffected by this rule.

Determinations of Adverse Effects and Application of the ``Adverse 
Modification'' Standard

    In publishing final rules to revise critical habitat, we are, to 
the maximum extent practicable, required to include a brief description 
and evaluation of those activities (whether public or private) that 
might occur in the area, and which, in the opinion of the Secretary, 
may adversely modify such habitat or be affected by such designation. 
As this revision to critical habitat is exclusions from critical 
habitat, the exclusions will, by definition, eliminate the requirement 
for consideration of adverse modification of the excluded habitat. Our 
discussion in the 2012 critical habitat rule (77 FR 71876; pp. 71938-
71944) still adequately addresses actions that may adversely modify 
critical habitat or be affected by the areas of critical habitat that 
remain designated.

Required Determinations

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

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine 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 the 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

[[Page 62658]]

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 by this revised critical 
habitat designation. There is no requirement under the RFA to evaluate 
the potential impacts to entities not directly regulated. Moreover, 
Federal agencies are not small entities. Therefore, because no small 
entities would be directly regulated by this rulemaking, the Service 
certifies that the revised critical habitat designation will not have a 
significant economic impact on a substantial number of small entities. 
Therefore, a regulatory flexibility analysis is not required.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare statements of energy effects when undertaking 
certain actions. In our FEA for the December 4, 2012, revised critical 
habitat designation for the northern spotted owl (77 FR 71876), we did 
not find that the critical habitat designation would significantly 
affect energy supplies, distribution, or use. Any administrative costs 
due to the designation of critical habitat would be reduced because we 
are excluding additional lands from the designation in this final rule. 
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 final rule will not produce a Federal mandate. In general, 
a Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The revised 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 because we are only excluding areas 
from the northern spotted owl's critical habitat designation; we are 
not designating additional lands as critical habitat for the 
subspecies. 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 northern spotted owl 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 
revised designation of critical habitat for northern spotted owl, 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 final 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 revised 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 States and local 
governments, or for anyone else. As a result, this final 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

[[Page 62659]]

levels of government. As noted above, the decision set forth in this 
document removes areas from the designation.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation with the Federal agency 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. Further, in this document, we are 
excluding areas from the northern spotted owl's critical habitat 
designation; we are not designating additional lands as critical 
habitat for the subspecies.

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 are revising critical 
habitat in accordance with the provisions of the Act. To assist the 
public in understanding the habitat needs of the northern spotted owl, 
the December 4, 2012, final rule (77 FR 71876) identifies the elements 
of physical or biological features essential to the conservation of the 
subspecies, and we are not proposing any changes to those elements in 
this document. The areas we are excluding from the designated critical 
habitat are described in this rule and the maps and coordinates or plot 
points or both of the subject areas are included in the administrative 
record and are available at https://www.fws.gov/oregonfwo and at 
https://www.regulations.gov under Docket No. FWS-R1-ES-2020-0050.

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 (see Catron Cty. Bd. of Comm'rs, New 
Mexico v. U.S. Fish & Wildlife Serv., 75 F.3d 1429 (10th Cir. 1996), we 
do not need to prepare environmental analyses pursuant to 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 in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
1995).

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 Indian lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Tribal culture, and to make 
information available to Tribes. To fulfill our responsibility under 
Secretarial Order 3206, we have consulted with the Cow Creek Band of 
Umpqua Tribe of Indians and the Confederated Tribes of Coos, Lower 
Umpqua, and Siuslaw Indians, which both manage Indian land within the 
areas designated as critical habitat for the northern spotted owl.

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 Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this final rule are the staff members of the 
Oregon Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, for the reasons discussed above in the preamble, we 
hereby 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. Revise the authority citation to part 17 to read as follows:

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

0
2. In Sec.  17.95(b), amend the entry for ``Northern Spotted Owl (Strix 
occidentalis caurina)'' by revising paragraph (7), the second map in 
paragraph (9), and paragraphs (10), (14), (16), (17), and (18) to read 
as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *
Northern Spotted Owl (Strix occidentalis caurina)
* * * * *
    (7) Note: Index map of critical habitat units for the northern 
spotted owl in the State of Oregon follows: Figure 2 to Northern 
Spotted Owl (Strix occidentalis caurina) paragraph (7)

[[Page 62660]]

[GRAPHIC] [TIFF OMITTED] TR10NO21.000

* * * * *
    (9) Unit 1: North Coast Ranges and Olympic Peninsula, Oregon and 
Washington. Maps of Unit 1: North Coast Ranges and Olympic Peninsula, 
Oregon and Washington, follow:
* * * * *
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[[Page 62661]]

[GRAPHIC] [TIFF OMITTED] TR10NO21.001

    (10) Unit 2: Oregon Coast Ranges, Oregon. Map of Unit 2, Oregon 
Coast Ranges, Oregon, follows:

[[Page 62662]]

[GRAPHIC] [TIFF OMITTED] TR10NO21.002

* * * * *
    (14) Unit 6: West Cascades South, Oregon. Map of Unit 6, West 
Cascades South, Oregon, follows:

[[Page 62663]]

[GRAPHIC] [TIFF OMITTED] TR10NO21.003

* * * * *
    (16) Unit 8: East Cascades South, California and Oregon. Map of 
Unit 8, East Cascades South, California and Oregon, follows:

[[Page 62664]]

[GRAPHIC] [TIFF OMITTED] TR10NO21.004

    (17) Unit 9: Klamath West, Oregon and California. Map of Unit 9: 
Klamath West, Oregon and California, follows:

[[Page 62665]]

[GRAPHIC] [TIFF OMITTED] TR10NO21.005

    (18) Unit 10: Klamath East, California and Oregon. Map of Unit 10: 
Klamath East, California and Oregon, follows:

[[Page 62666]]

[GRAPHIC] [TIFF OMITTED] TR10NO21.006

* * * * *

Martha Williams,
Principal Deputy Direcctor, Exercising the Delegated Authority of the 
Director.
[FR Doc. 2021-24365 Filed 11-9-21; 8:45 am]
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