[Federal Register Volume 77, Number 43 (Monday, March 5, 2012)]
[Presidential Documents]
[Pages 12985-12987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5369]

                        Presidential Documents 

Federal Register / Vol. 77, No. 43 / Monday, March 5, 2012 / 
Presidential Documents

[[Page 12985]]

                Memorandum of February 28, 2012

Proposed Revised Habitat for the Spotted Owl: 
                Minimizing Regulatory Burdens

                Memorandum for the Secretary of the Interior

                Today, compelled by court order, the Department of the 
                Interior (Department) proposed critical habitat for the 
                northern spotted owl. The proposal is an initial step 
                in gathering important information that will inform a 
                final decision on what areas should be designated as 
                critical habitat for the spotted owl, based on a full 
                evaluation of all key criteria: the relevant science, 
                economic considerations, the impact on national 
                security, and a balancing of other factors.

                Executive Order 13563 of January 18, 2011 (Improving 
                Regulation and Regulatory Review), explicitly states 
                that our ``regulatory system must protect public 
                health, welfare, safety, and our environment while 
                promoting economic growth, innovation, competitiveness, 
                and job creation'' (emphasis added). Consistent with 
                this mandate, Executive Order 13563 requires agencies 
                to tailor ``regulations to impose the least burden on 
                society, consistent with obtaining regulatory 
                objectives'' (emphasis added). Executive Order 13563 
                also requires agencies to ``identify and consider 
                regulatory approaches that reduce burdens and maintain 
                flexibility and freedom of choice'' while selecting 
                ``those approaches that maximize net benefits.'' To the 
                extent permitted by law, our regulatory system must 
                respect these requirements.

                The Endangered Species Act (ESA) states: ``[t]he 
                Secretary shall designate critical habitat . . . on the 
                basis of the best scientific data available and after 
                taking into consideration the economic impact, the 
                impact on national security, and any other relevant 
                impact, of specifying any particular area as critical 
                habitat'' (emphasis added). 16 U.S.C. 1533(b). The ESA 
                also provides that ``[t]he Secretary may exclude any 
                area from critical habitat if he determines that the 
                benefits of such exclusion outweigh the benefits of 
                specifying such area as part of the critical habitat, 
                unless he determines, 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'' (emphasis 
                added). Id. Under the ESA, scientific, economic, and 
                other considerations are relevant to critical habitat 
                designations. Under a regulation issued by the 
                Department in 1984, however, the economic analysis 
                follows the scientific assessment, rather than being 
                presented simultaneously with it; one of the purposes 
                of this memorandum is to direct you to propose 
                revisions to that regulation.

                Consistent with the ESA and Executive Order 13563, 
                today's proposed rule emphasizes the importance of 
                flexibility and pragmatism. The proposed rule notes the 
                need to consider ``the economic impact'' of the 
                proposed rule, outlines a series of potential 
                exclusions from the proposed critical habitat, and asks 
                for public comments on those exclusions and on other 
                possible exclusions. Private lands and State lands are 
                among the potential exclusions, based on a recognition 
                that habitat typically is best protected when 
                landowners are working cooperatively to promote forest 
                health, and a recognition--as discussed in the proposed 
                rule--that the benefits of excluding private lands and 
                State lands may be greater than the benefits of 
                including those areas in critical habitat.

[[Page 12986]]

                Importantly, the proposed rule recommends, on the basis 
                of extensive scientific analysis, that areas identified 
                as critical habitat should be subject to active 
                management, including logging, in order to produce the 
                variety of stands of trees required for healthy 
                forests. The proposal rejects the traditional view that 
                land managers should take a ``hands off'' approach to 
                forest habitat in order to promote species health; on-
                going logging activity may be needed to enhance forest 

                In order to avoid unnecessary costs and burdens and to 
                advance the principles of Executive Order 13563, 
                consistent with the ESA, I hereby direct you to take 
                the following actions:

                    (1) publish, within 90 days of the date of this 
                memorandum, a full analysis of the economic impacts of 
                the proposed rule, including job impacts, and make that 
                analysis available for public comment;
                    (2) consider excluding private lands and State 
                lands from the final revised critical habitat, 
                consistent with applicable law and science;
                    (3) develop clear direction, as part of the final 
                rule, for evaluating logging activity in areas of 
                critical habitat, in accordance with the scientific 
                principles of active forestry management and to the 
                extent permitted by law;
                    (4) carefully consider all public comments on the 
                relevant science and economics, including those 
                comments that suggest potential methods for minimizing 
                regulatory burdens;
                    (5) give careful consideration to providing the 
                maximum exclusion from the final revised critical 
                habitat, consistent with applicable law and science; 
                    (6) to the extent permitted by law, adopt the least 
                burdensome means, including avoidance of unnecessary 
                burdens on States, tribes, localities, and the private 
                sector, of promoting compliance with the ESA, 
                considering the range of innovative ecosystem 
                management tools available to the Department and 

                Executive Order 13563 states that our regulatory system 
                ``must promote predictability and reduce uncertainty.'' 
                Uncertainty on the part of the public may be avoided, 
                and public comment improved, by simultaneous 
                presentation of the best scientific data available and 
                the analysis of economic and other impacts. 
                Accordingly, in order to provide more complete 
                information in the future regarding potential economic 
                impacts when critical habitat proposals are first 
                offered to the public, I direct you to take prompt 
                steps to propose revisions to the current rule (which, 
                as noted, was promulgated in 1984 and requires that an 
                economic analysis be completed after critical habitat 
                has been proposed) to provide that the economic 
                analysis be completed and made available for public 
                comment at the time of publication of a proposed rule 
                to designate critical habitat.

                This memorandum is not intended to, and does not, 
                create any right or benefit, substantive or procedural, 
                enforceable at law or in equity by any party against 
                the United States, its departments, agencies, or 
                entities, its officers, employees, or agents, or any 
                other person.

[[Page 12987]]

                You are hereby authorized and directed to publish this 
                memorandum in the Federal Register.
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    Washington, February 28, 2012

[FR Doc. 2012-5369
Filed 3-2-12; 8:45 am]
Billing code 4310-10-P