[Federal Register Volume 77, Number 106 (Friday, June 1, 2012)]
[Proposed Rules]
[Pages 32483-32493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13305]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2011-0112; 4500030114]
RIN 1018-AX69


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for the Northern Spotted Owl (Strix occidentalis caurina)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of supplementary documents.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the 
availability of a draft economic analysis of the proposed revised 
designation of critical habitat for the northern spotted owl (Strix 
occidentalis caurina) under the Endangered Species Act of 1973, as 
amended. Also, a draft environmental assessment of this proposed action 
will

[[Page 32484]]

be made available to the public on June 4, 2012.

DATES: Written Comments: The public comment period on the proposal to 
revise critical habitat for the northern spotted owl has been extended 
to July 6, 2012. Please note comments submitted electronically using 
the Federal eRulemaking Portal (see ADDRESSES section, below) must be 
received by 11:59 p.m. Eastern Time on the closing date. If you are 
submitting your comments by hard copy, please mail them by July 6, 
2012, to ensure that we receive them in time to give them full 
consideration.
    Public Information Meetings: As announced previously, we will hold 
public information meetings on the following dates and times:
     Redding, California, on June 4, 2012, from 3 p.m. to 5 
p.m., and from 6 p.m. to 8 p.m.
     Tacoma, Washington, on June 12, 2012, from 3 p.m. to 5 
p.m., and from 6 p.m. to 8 p.m.
     Portland, Oregon, on June 20, 2012, from 2 p.m. to 4 p.m. 
This meeting will precede the public hearing at the same location and 
on the same date.
    In addition, we have added the following public information 
meetings:
     Roseburg, Oregon, on June 27, 2012, from 3 p.m. to 5 p.m., 
and from 6 p.m. to 8 p.m.
    Public Hearing: We will hold a public hearing in Portland, Oregon, 
on Wednesday, June 20, 2012, from 6 p.m. to 8 p.m.

ADDRESSES: Document availability: You may obtain copies of the proposed 
revised rule, draft economic analysis, and draft environmental 
assessment at http://www.regulations.gov at Docket Number FWS-R1-ES-
2011-0112, from the Oregon Fish and Wildlife Office's Web site (http://www.fws.gov/oregonfwo/--click on the link ``Spotted Owl Main 
Information Site''), or by contacting the Oregon Fish and Wildlife 
Office directly (see FOR FURTHER INFORMATION CONTACT).
    Comment Submission: You may submit comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R1-ES-2011-0112, which 
is the docket number for this rulemaking, and follow the directions for 
submitting a comment.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R1-ES-2011-0112; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    (3) At the public information meetings or the public hearing: 
Written comments will be accepted by Service personnel at any of the 
seven scheduled public meetings or the public hearing.
    We will post all comments received on http://www.regulations.gov. 
This generally means that we will post any personal information you 
provide us (see the Public Comments section below for more 
information). We request that you send comments only by the methods 
described above.
    Public Information Meetings: The seven public meetings will be held 
at the following locations:
     California: Redding Convention Center, 700 Auditorium 
Drive, Redding, California 96001; 530-229-0036.
     Washington: University of Washington, Tacoma Campus, 1900 
Commerce St., Jane Russell Commons, Tacoma, Washington; 253-692-4416.
     Portland, Oregon: Oregon Convention Center, Room C-120, 
777 NE Martin Luther King Blvd., Portland, Oregon; 503-235-7575.
     Roseburg, Oregon: Douglas County Central Library, Ford 
Community Room, 1409 NE Diamond Lake Blvd., Roseburg, Oregon; 541-440-
4305.
    Public Hearing: The public hearing will be held in Room C-120 at 
the Oregon Convention Center, 777 NE Martin Luther King Blvd., 
Portland, Oregon; 503-235-7575.

FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor, U.S. 
Fish and Wildlife Service, 2600 SE 98th Avenue, Suite 100, Portland, OR 
97266, by telephone (503-231-6179), or by facsimile (503-231-6195). 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: On March 8, 2012, the U.S. Fish and Wildlife 
Service (Service) published in the Federal Register a proposal to 
revise the designated critical habitat for the northern spotted owl 
under the Endangered Species Act of 1973, as amended (Act). Consistent 
with the best scientific data available, the standards of the Act, our 
regulations, and agency practice, the Service initially identified, for 
public comment, approximately 13,962,449 acres (ac) (5,649,660 hectares 
(ha)) in 11 units and 63 subunits in California, Oregon, and Washington 
that meet the definition of critical habitat. In addition, however, the 
Act provides the Secretary with the discretion to exclude certain areas 
from the final designation after taking into consideration economic 
impacts, impacts on national security, and any other relevant impacts 
of specifying any particular area as critical habitat. The Service 
identified and is considering a number of specific alternatives in the 
proposed rulemaking based on potential exclusions from the final rule. 
First, of the total area identified, we propose to exclude from the 
final designation approximately 2,631,736 ac (1,065,026 ha) of National 
Park lands, Federal Wilderness Areas, and other Congressionally 
reserved natural areas, as well as 164,776 ac (66,682 ha) of State Park 
lands. Second, we propose to exclude from a final designation 
approximately 936,816 ac (379,116 ha) of State and private lands that 
have a Habitat Conservation Plan, Safe Harbor Agreement, conservation 
easement, or similar conservation protection. And third, we are 
considering exclusion of an additional 838,344 ac (339,266 ha) of other 
non-Federal lands from the final designation. These specific 
alternatives will be considered on an individual basis or in any 
combination thereof. In addition, the final designation may not be 
limited to these alternatives, but may also consider other exclusions 
as a result of continuing analysis of relevant considerations (both 
scientific and economic, as required by the Act) and the public comment 
process.
    The comment period on the proposed rule had previously been 
extended to July 6, 2012, to allow all interested parties an 
opportunity to comment simultaneously on the proposed revised rule, the 
associated draft economic analysis, and draft environmental assessment. 
Comments previously submitted need not be resubmitted and will be fully 
considered in preparation of the final rule. We also previously 
announced our intent to hold a public hearing and several public 
information meetings on our proposed revised rule and associated 
documents; we announce two additional public information meetings here.

Presidential Memorandum

    On February 28, 2012, the President issued a memorandum to the 
Secretary of the Interior regarding the proposed revised critical 
habitat for the northern spotted owl, specifically on minimizing 
regulatory burdens. In that memo, the President gave the following 
direction to the Secretary:

    ``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,

[[Page 32485]]

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; and
    (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 landowners.''

    To comply with this directive, the Service has taken the following 
steps:
    1. We conducted and completed, as per our normal practice, an 
economic analysis on the probable impacts of the proposed revised 
critical habitat, specifically in the areas of timber harvest and 
linear projects, and included a consideration of potential impacts to 
jobs. In this document, we announce the availability of this draft 
economic analysis for public review and comment. As discussed in more 
detail below, we found that, depending on the decisions made and future 
directions taken by Federal action agencies, the incremental impacts of 
the proposed critical habitat revision will likely be minimal, or may 
even have a positive impact, if ecological forestry prescriptions are 
applied. This analysis will be refined and revised, based on 
information we receive during our comment period, and a final economic 
analysis will be made available at the time of publication of the final 
rule.
    2. In our proposed rule (77 FR 14062; March 8, 2012), we proposed 
several options that we are considering for our final designation, 
three of which address the potential exclusion of private and State 
lands from the final critical habitat determination. In making the 
final determination, we will consider the best available scientific and 
commercial information, including information we receive during our 
public comment period. This information will be used in our evaluation 
process, described in section 4(b)(2) of the Act, which will examine 
the benefits of inclusion and the benefits of exclusion of specific 
areas from the final critical habitat designation, so that the 
Secretary may make informed decisions regarding exclusions.
    3. In our proposed rule, we provided a description of ecological 
forestry management actions that are compatible with both northern 
spotted owl recovery and timber harvest, as recommended in the Revised 
Recovery Plan for the Northern Spotted Owl (76 FR 38575; July 1, 2011), 
which, in some areas, may actually increase harvest relative to recent 
realized levels. While it is outside the purview of the Service to 
direct forestry management, we will consult with Federal action 
agencies and make recommendations on the best measures to provide 
protections for the owl and have minimal negative economic impacts.
    4. It is the normal practice of the Service to solicit public 
review and comment on all rule-making actions, and, as noted above, we 
consistently follow the standard of using the best available scientific 
information in making critical habitat determinations. In our proposed 
rule (77 FR 14062; March 8, 2012), we requested specific information 
from all interested parties, and additionally have requested comment 
from expert peer reviewers. In this notice, we have added several 
additional specific questions for comment, including questions on the 
analytic framework and information in our draft economic analysis, and 
we will use all information received in our analysis and final 
determination.
    5. In our March 8, 2012, proposed rule (77 FR 14062), we identified 
several options we are considering for the final designation which 
include the consideration of excluding private, State, and 
Congressionally Reserved lands within the proposed critical habitat. 
Additionally, we have solicited comments and information regarding any 
other areas that may be appropriate for exclusion. Again, the Secretary 
will consider all appropriate exclusions, and use the best available 
scientific and commercial information to inform his evaluation in 
making any exclusions to the final designation, as provided by section 
4(b)(2) of the Act.
    6. The Service appreciates, and is sensitive to, the potential for 
regulatory burden that may result from our designation of critical 
habitat for the northern spotted owl under the Act. Our analysis 
indicates that the proposed revision of critical habitat, as informed 
by the Revised Recovery Plan for the Northern Spotted Owl (76 FR 38575; 
July 1, 2011), is anticipated to have little incremental effects above 
and beyond the conservation measures already required as a result of 
its threatened status, and thus is expected to impose minimal 
additional regulatory burden. The Service appreciates, and relies on 
the many partners we have in conservation, including private 
landowners, Tribes, States, and local governments, and strongly desires 
to promote conservation partnerships to conserve, protect, and enhance 
fish, wildlife, plants, and their habitats for the continuing benefit 
of the American people.

Public Comments

    We will accept written comments and information during this 
extended comment period on our proposed revised designation of critical 
habitat for the northern spotted owl that was published in the Federal 
Register on March 8, 2012 (77 FR 14062), our draft economic analysis, 
and draft environmental assessment of the proposed revised designation. 
We will consider information and recommendations from all interested 
parties. We are particularly interested in comments concerning:
    1. Specific information regarding:
    a. The amount and distribution of northern spotted owl habitat;
    b. What areas were occupied at the time of listing and contain 
features essential to the conservation of the species such that they 
should be included in the designation and why;
    c. Whether these essential features may require special management 
considerations or protection and what special management considerations 
or protection may be needed in critical habitat areas we are proposing;
    d. What areas not occupied at the time of listing are essential for 
the conservation of the species and why;
    e. Whether we have identified any areas occupied at the time of 
listing, but that do not contain features essential to the conservation 
of the species, and that therefore should not be included in the 
designation; and
    f. Whether we have identified any areas that may not have been 
occupied at the time of listing and that are not essential to the 
conservation of the species, such that they should not be included in 
the designation.
    2. Land-use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    3. Our proposed approach to effects determinations for the purposes 
of conducting consultation under section 7(a)(2) of the Act, in 
particular the application of a 500-ac (200-ha) scale as a screen for a 
determination of not likely

[[Page 32486]]

to adversely affect, as described in the section ``Determinations of 
Adverse Effects and Application of the `Adverse Modification' 
Standard'' of the proposed rule.
    4. Assistance in the identification of any private lands that are 
not expressly identified as intended for inclusion within critical 
habitat and that may have inadvertently been included within the 
designation, due to mapping and modeling limitations, as described in 
the section ``Proposed Revised Critical Habitat Designation'' of the 
proposed rule.
    5. Information on the potential impacts of climate change on the 
northern spotted owl and proposed critical habitat, and whether special 
management needs or protections may be needed to address this issue in 
the critical habitat areas we are proposing.
    6. Any probable economic, national security, or other relevant 
impacts of designating any area as critical habitat, and in particular, 
any impacts on small entities, and the benefits of including or 
excluding areas that exhibit these impacts. We particularly request 
information and comments on what activities may occur and the effects 
to those activities in the proposed revised critical habitat areas. 
Such information could include:
    a. The extent of possible activities, including temporal and 
spatial scale, relative to the critical habitat area within which they 
occur.
    b. The impact of possible activities on the habitat's likelihood of 
serving its intended conservation function or purpose.
    c. The consistency of possible activities with the recommendations 
of the Revised Recovery Plan for the Northern Spotted Owl or other 
landscape-level conservation plans.
    7. The potential economic impacts of the designation on timber 
harvest on private lands included in the proposed designation, 
especially on those lands which do not have habitat conservation plans 
(HCPs), safe harbor agreements (SHAs), or other conservation plans 
which are currently active or under development.
    8. Have we identified all potential impacts to private landowners 
within the proposed critical habitat?
    9. The conservation benefits that would result from the additional 
protections to northern spotted owl habitat, above and beyond all 
measures currently in place, that would be afforded by the proposed 
revised critical habitat designation.
    10. Whether the benefits of excluding the private and State lands 
with active conservation agreements (HCPs, SHAs, and other formal 
agreements) and congressionally reserved natural areas (e.g., 
wilderness areas, national scenic areas, national parks) that are 
proposed for exclusion outweigh the benefits of including them in 
critical habitat.
    11. We are considering the possible exclusion of non-Federal lands, 
especially areas in private ownership, in particular, and whether the 
benefits of exclusion may outweigh the benefits of inclusion of those 
areas. However, we seek comment more broadly on whether the benefits of 
excluding any other particular area from critical habitat outweigh the 
benefits of including that area in critical habitat under section 
4(b)(2) of the Act, after considering both the potential impacts and 
benefits of the proposed revised critical habitat designation. We, 
therefore, request specific information on:
    a. The benefits of including any specific areas in the final 
designation and supporting rationale.
    b. The benefits of excluding any specific areas from the final 
designation and supporting rationale.
    c. Whether the designation will result in disproportionate economic 
impacts to specific areas that should be evaluated for possible 
exclusion from the final designation.
    d. Whether any specific exclusions may result in the extinction of 
the species and why (see ``Exclusions'' section of the proposed rule).
    e. For private lands in particular, we are interested in 
information regarding the potential benefits of including private lands 
in critical habitat versus the benefits of excluding such lands from 
critical habitat. This information does not need to include a detailed 
technical analysis of the potential effects of designated critical 
habitat on private property. In weighing the potential benefits of 
exclusion versus inclusion of private lands, the Service may consider 
whether existing partnership agreements provide for the management of 
spotted owl habitat. We may consider, for example, the status of 
conservation efforts, the effectiveness of any conservation agreements 
to conserve the species, and the likelihood of the conservation 
agreement's future implementation. There may be broad public benefits 
of encouraging collaborative efforts and encouraging local and private 
conservation efforts, and these broad benefits are important 
considerations in our evaluation.
    12. Our process used for identifying those areas that meet the 
definition of critical habitat for the northern spotted owl, including 
the assumptions incorporated into the habitat modeling process, as 
described more fully in the section ``Criteria Used to Identify 
Critical Habitat'' of the proposed rule and also in our supporting 
documentation (Dunk et al. 2012).
    13. Information on the extent to which the description of potential 
economic impacts in the draft economic analysis is complete and 
accurate, specifically:
    a. Whether there are incremental costs of critical habitat 
designation (e.g., costs attributable solely to critical habitat 
designation) that have not been appropriately identified or considered 
in our economic analysis, including costs associated with future 
administrative costs or project modifications that may be required by 
Federal agencies related to section 7 consultation under the Act, and 
in particular, any impacts on small entities.
    b. Whether the draft economic analysis identifies all State and 
local costs. If not, what other costs should be included.
    c. Whether our approach in the draft economic analysis of 
evaluating three possible scenarios of potential impacts to timber 
harvest in younger forests in the Matrix land-use designation, based on 
the possible future decisions made by Federal land managers, covers all 
reasonable scenarios, and makes sound and reasonable projections in the 
three possible outcomes. These three scenarios are:
    i. Timber harvest volume does not change; thinning that is 
currently taking place will most likely continue.
    ii. Timber harvest volume may increase due to the application of 
ecological forestry practices in some areas of critical habitat.
    iii. Timber harvest volume may be reduced due to voluntary agency 
restriction in actions within designated critical habitat.
    d. Whether there are additional incremental economic impacts 
associated with linear projects, including pipelines, that have not 
been identified or correctly characterized in the economic analysis, 
including any potential project modifications or delay costs that may 
result from consultations associated with critical habitat on such 
projects.
    e. Whether the economic analysis correctly assesses the effect on 
regional costs and jobs associated with timber harvest and other 
activities that may derive from the designation.
    f. Are the estimates of job mulitpliers discussed in the draft 
economic analysis reasonable for the region and current? Please note 
that the scope of the analysis is limited to the incremental effects of 
critical habitat related to and

[[Page 32487]]

within the geographic area of the proposed designation for the northern 
spotted owl. The analysis does not consider potential changes in timber 
activities on lands outside the proposed critical habitat designation. 
As such, this analysis cannot evaluate the potential effects related to 
the timber industry as a whole.
    14. Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and any regulatory changes that 
will likely occur as a result of the designation of critical habitat.
    15. Whether the draft economic analysis identifies all Federal, 
State, and local costs and benefits attributable to the proposed 
revised designation of critical habitat, and information on any costs 
that may have been inadvertently overlooked.
    16. Whether the draft environmental assessment adequately presents 
the purpose of and need for the proposed action, the proposed action 
and alternatives, and the evaluation of the direct, indirect, and 
cumulative effects of the alternatives. Specifically:
    a. Have we properly identified the range of issues relevant to the 
designation of critical habitat for the northern spotted owl?
    b. Have we made reasonable conclusions regarding the certainty or 
uncertainty of the impacts of the proposed action and alternatives?
    c. Have we identified a reasonable range of alternatives to meet 
the purpose and need of the action, including alternatives considered, 
but not fully evaluated?
    d. Have we identified all reasonably foreseeable actions that could 
contribute to the cumulative effects of the action?
    17. Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    18. Specific information on ways to improve the clarity of this 
rule as it pertains to completion of consultations under section 7 of 
the Endangered Species Act.
    Our final determination concerning revised critical habitat for the 
northern spotted owl will take into consideration all written comments 
we receive during all comment periods, comments from peer reviewers, 
comments received during the public meetings, comments and public 
testimony received during the public hearing, and any additional 
information we receive in response to the draft economic analysis and 
draft environmental assessment. The comments will be included in the 
public record for this rulemaking, and we will fully consider them in 
the preparation of our final determination. On the basis of peer review 
and public comments, as well as any new information we may receive, we 
may, during the development of our final determination, find that areas 
within the proposed designation do not meet the definition of critical 
habitat, that some modifications to the described boundaries are 
appropriate, or that areas may or may not be appropriate for exclusion 
under section 4(b)(2) of the Act.
    If you previously submitted comments or information on this 
proposed rule, please do not resubmit them. We have incorporated them 
into the public record for this rulemaking, and will fully consider 
them in the preparation of our final determination.
    You may submit your written comments and materials concerning this 
proposed rule by one of the methods listed in ADDRESSES. Verbal 
testimony may also be presented during the public hearing (see DATES 
and ADDRESSES sections). We will post your entire comment--including 
your personal identifying information--on http://www.regulations.gov. 
If you submit your comment via U.S. mail, you may request at the top of 
your document that we withhold personal information such as your street 
address, phone number, or email address from public review; however, we 
cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Oregon Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Public Information Meetings and Public Hearing

    We are holding seven public information meetings and one public 
hearing on the dates listed in DATES at the locations listed in 
ADDRESSES. We are holding the public hearing to provide interested 
parties an opportunity to present verbal testimony (formal, oral 
comments) or written comments regarding the proposed critical habitat 
designation and the associated draft economic analysis and draft 
environmental assessment. A formal public hearing is not, however, an 
opportunity for dialogue with the Service or its contractors; it is 
only a forum for accepting formal verbal testimony. In contrast to the 
hearing, the public information meetings allow the public the 
opportunity to interact with Service staff and contractors, who will be 
available to provide information and address questions on the proposed 
rule and associated documents. We cannot accept verbal testimony at any 
of the public information meetings; verbal testimony can only be 
accepted at the public hearing. Anyone wishing to make an oral 
statement at the public hearing for the record is encouraged to provide 
a written copy of their statement to us at the hearing. In the event 
there is a large attendance, the time allotted for oral statements may 
be limited. Speakers can sign up at the hearing if they desire to make 
an oral statement. Oral and written statements receive equal 
consideration. There are no limits on the length of written comments 
submitted to us.
    Persons with disabilities needing reasonable accommodations to 
participate in the public hearing or public meetings should contact 
Paul Henson, Field Supervisor, Oregon Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT). Reasonable accommodation requests should 
be received at least 3 business days prior to the meeting or hearing to 
help ensure availability; at least 2 weeks prior notice is requested 
for American Sign Language or English as a second language interpreter 
needs.

Background

    It is our intent to discuss only those topics directly relevant to 
the proposed revised designation of critical habitat for the northern 
spotted owl in this document. For more information on previous Federal 
actions concerning the northern spotted owl, refer to the proposed 
revised designation of critical habitat published in the Federal 
Register on March 8, 2012 (77 FR 14062), which is available online at 
http://www.regulations.gov (at Docket Number FWS-R1-ES-2011-0112) or 
from the Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Critical Habitat

    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the

[[Page 32488]]

conservation of the species. If the proposed rule is made final, 
section 7(a)(2) of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency unless it is exempted pursuant to the 
provisions of the Act. See 16 U.S.C. 1536(e)-(n) & (p). Federal 
agencies proposing actions affecting critical habitat must consult with 
us on the effects of their proposed actions, under section 7(a)(2) of 
the Act.
    Consistent with the best scientific data available, the standards 
of the Act, and our regulations, we have initially identified, for 
public comment, approximately 13,962,449 acres (ac) (5,649,660 hectares 
(ha)) in 11 units and 63 subunits in California, Oregon, and Washington 
that meet the definition of critical habitat for the northern spotted 
owl. In addition, the Act provides the Secretary with the discretion to 
exclude certain areas from the final designation after taking into 
consideration economic impacts, impacts on national security, and any 
other relevant impacts of specifying any particular area as critical 
habitat.

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

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat. In the 
case of the northern spotted owl, the benefits of critical habitat 
include public awareness of the presence of the northern spotted owl 
and the importance of habitat protection, and, where a Federal nexus 
exists, increased habitat protection for the northern spotted owl due 
to protection from adverse modification or destruction of critical 
habitat. In practice, situations with a Federal nexus exist primarily 
on Federal lands or for projects undertaken by Federal agencies.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. We also consider 
the potential economic or social impacts that may result from the 
designation of critical habitat.
    We have identified, and are considering, a number of specific 
alternatives in this proposed rulemaking based on potential exclusions 
from the final rule. First, of the total area identified, we propose to 
exclude from the final designation approximately 2,631,736 ac 
(1,065,026 ha) of National Park lands, Federal Wilderness Areas, and 
other congressionally reserved natural areas, as well as 164,776 ac 
(66,682 ha) of State Park lands. Second, we propose to exclude from a 
final designation approximately 936,816 ac (379,116 ha) of State and 
private lands that have a Habitat Conservation Plan, Safe Harbor 
Agreement, conservation easement, or similar conservation protection. 
And third, we are considering exclusion of an additional 838,344 ac 
(339,266 ha) of other non-Federal lands from the final designation.
    These specific alternatives will be considered on an individual 
basis or in any combination thereof. In addition, the final designation 
may not be limited to these alternatives, but may also consider other 
exclusions as a result of continuing analysis of relevant 
considerations (scientific, economic, and other relevant factors, as 
required by the Act) and the public comment process. In particular, we 
solicit comments from the public on the physical and biological 
features currently identified in this proposal as being essential for 
the conservation of the species, whether all of the areas identified 
meet the definition of critical habitat, whether other areas would meet 
that definition, whether to make the specific exclusions we have 
proposed, and whether there are other areas that are appropriate for 
exclusion.
    The final decision on whether to exclude any areas will be based on 
the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a draft economic analysis and draft environmental 
assessment concerning the proposed critical habitat designation, which 
are available for review and comment (see ADDRESSES).

Existing Protections for the Northern Spotted Owl Absent Critical 
Habitat

    A variety of Federal, State, and local protections currently apply 
to the northern spotted owl due to its status as a threatened species 
under the Act; these protections, and any costs associated with them, 
are not associated with the designation of critical habitat and are in 
place regardless of whether they are overlaid by critical habitat. Here 
we describe the existing protections for the northern spotted owl 
absent critical habitat.
Habitat Protections on Federal Lands
    Approximately 86 percent (12,023,709 ac (4,864,823 ha)) of the 
proposed revised critical habitat designation is on Federal lands. 
These Federal lands already provide a variety of protections to the 
northern spotted owl and its habitat, regardless of the designation of 
critical habitat, including protections provided by the standards and 
guidelines of the Northwest Forest Plan (NWFP) and the protections 
provided by section 7 of the Act, as described more fully here. The 
NWFP adopted a series of reserves and management guidelines that were 
intended to protect spotted owls and their habitat. Currently, the 
guidelines for managing the large reserves of the NWFP are more 
restrictive than the recommendations for reserved lands in the Revised 
Recovery Plan for the Northern Spotted Owl. The protections to northern 
spotted owl habitat under the NWFP are in place regardless of the 
designation of critical habitat; critical habitat does not supersede or 
alter the standards and guidelines of the NWFP.
    Since it was signed on April 13, 1994, the NWFP has generally 
guided the management of Federal forest lands within the range of the 
spotted owl (USDA and USDI 1994a, b). All U.S. Forest Service (Forest 
Service) and U.S. Bureau of Land Management (BLM) lands within the 
proposed revised designation of critical habitat for the northern 
spotted owl are managed under the NWFP. The NWFP was designed to 
protect large blocks of late-successional forest and provide habitat 
for species that depend on those forests, including the spotted owl, as 
well as to ``produce a predictable and sustainable level of timber 
sales and non-timber resources that will not degrade or destroy the 
environment'' (USDA and USDI 1994a). The NWFP includes land-use 
allocations that would provide for population clusters of spotted owls 
(i.e.,

[[Page 32489]]

demographic support) and maintain connectivity between population 
clusters. Certain land-use allocations in the NWFP contribute to 
supporting population clusters: Late-Successional Reserves (LSRs), 
Managed Late-Successional Areas, and Congressionally Reserved Areas. 
Riparian Reserves, Adaptive Management Areas and Administratively 
Withdrawn Areas can provide both demographic support and connectivity/
dispersal between the larger blocks, but are not necessarily designed 
for that purpose. ``Matrix'' land-use allocation areas are designed to 
support timber production while also retaining biological legacy 
components important to old-growth obligate species that would persist 
into future managed timber stands.
    The proposed revised designation of critical habitat for the 
northern spotted owl includes 2,631,736 ac (1,065,026 ha) of 
Congressionally-reserved wilderness areas and National Park lands. In 
these land allocations, there is generally little or no timber 
management beyond, potentially, removal of hazard trees or fuels 
reduction to protect structures and road maintenance, in addition to 
fire-management activities. Such areas thus protect habitat for the 
northern spotted owl absent the designation of critical habitat.
    In addition, we estimate that the vast majority of the proposed 
revised critical habitat on Federal lands is currently occupied by the 
northern spotted owl; therefore, these lands are already subject to 
consultation under section 7(a)(2) of the Act. Section 7(a)(2) provides 
that Federal agencies must, in consultation with the Service, ensure 
that any action authorized, funded, or carried out by that Federal 
agency is not likely to jeopardize the continued existence of a listed 
species (this is referred to as the ``jeopardy standard''); for the 
northern spotted owl, impacts to its habitat are considered as part of 
this analysis. The jeopardy standard applies to the northern spotted 
owl on all Federal lands occupied by the species within the proposed 
revised critical habitat, which, as noted above, constitutes the 
majority of the proposed designation. In areas where spotted owls 
occur, Federal agencies, such as the Forest Service and Bureau of Land 
Management, are already consulting with the Service on the potential 
effects of their proposed actions under the jeopardy standard, 
regardless of whether these lands are currently designated as critical 
habitat. The only additional requirement for these Federal agencies, 
subsequent to the designation of critical habitat, is that these 
agencies must additionally ensure that their actions are not likely to 
result in the destruction or adverse modification of critical habitat.
Non-Federal Lands
    The proposed revised designation of critical habitat includes 
671,306 ac (271,558 ha) of State lands. Most of these State lands are 
either covered under a Habitat Conservation Plan (HCP) or are composed 
of State Parks or State Fish and Wildlife lands. Many of these lands 
have State regulations or guidelines in place that provide habitat 
protection for northern spotted owls, regardless of critical habitat. 
For example, in the State of Washington, timber harvest activities must 
comply with the State Forest Practices Act and the Washington State 
Environmental Policy Act, and the management of State trust lands is 
guided by the State Forest Resource Plan, which requires the Washington 
Department of Natural Resources (DNR) to analyze and potentially modify 
the impacts of its activities on watersheds, wildlife habitat, special 
ecological features, wetlands, and other natural resources to maintain 
healthy forests for future generations. In addition to these State 
policies for Washington, all forest lands managed by the DNR and 
considered in the proposed rule are covered by a Habitat Conservation 
Plan designed to provide habitat for a number of species, including the 
northern spotted owl.
    In Oregon, timber harvests on State lands in Oregon are guided by 
the Forest Practices Act and Forest Practices Rules. In California, 
timber harvests are regulated by the California Forest Practice Rules, 
which contain specific provisions for the protection of the northern 
spotted owl. The protections provided by these State regulations and 
guidelines on State lands included in the proposed revised designation 
are in place regardless of the designation of critical habitat.
    The proposed revised designation additionally identifies 1,267,704 
ac (512,279 ha) of private lands as potential critical habitat for the 
northern spotted owl. Of these lands, approximately 873,621 ac 
(353,541ha) (69 percent) are already subject to existing or proposed 
HCPs or Safe Harbor Agreements (SHAs). An additional 89,400 ac (36,179 
ha) (7 percent) are subject to other existing conservation protections, 
such as conservation easements. Thus, only 306,869 ac (124,185 ha) of 
private lands are without existing formal habitat protections for the 
northern spotted owl. However, these lands are still subject to 
applicable State regulations, such as State Forest Practice Rules. All 
of these protections are in place regardless of the designation of 
critical habitat.
    Finally, State and private lands may also be subject to 
consultation under section 7(a)(2) of the Act if a ``Federal nexus'' 
exists, meaning the Federal government authorizes, funds, or carries 
out an activity on privately-held or State-owned property. For example, 
a Federal nexus may exist because a project involves Federal funding or 
requires a Federal permit, such as a Clean Water Act permit or an 
incidental take permit for another listed species that co-occurs with 
the northern spotted owl. In areas occupied by the northern spotted 
owl, the protections provided by consultation under the jeopardy 
standard for the northern spotted owl would apply regardless of 
critical habitat.
    In addition to the protections afforded by the jeopardy standard of 
Section 7 of the Act, as discussed above, on all lands regardless of 
ownership the northern spotted owl also benefits from the protections 
of section 9 of the Act (which prohibits the ``take'' of listed 
wildlife species, defined as ``harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or attempt to engage in any 
such conduct'') and section 10 of the Act (under section 10(a)(1)(B), a 
landowner or local government may develop an HCP for a listed animal 
species to meet the conditions for issuance of an incidental take 
permit in connection with a land or water use activity or project). 
These protections are considered baseline protections attributable to 
the listed status of the species, and they are in place regardless of 
the designation of critical habitat.
    Section 4(b)(2) of the Act specifies that the Secretary [of the 
Interior] shall designate critical habitat ``after taking into 
consideration the economic impact, and any other relevant impact, of 
specifying any particular area as critical habitat.'' This 
consideration does not extend to revisiting the impacts associated with 
the listed status of the species. Thus, to understand the impacts 
attributable solely to the designation of critical habitat, it is first 
necessary to understand the baseline protections and costs that are 
already on the landscape, regardless of the critical habitat 
designation. The potential impacts of the proposed revised critical 
habitat for the northern spotted owl are, therefore, the economic costs 
and other relevant costs associated with the designation above and 
beyond those baseline protections and associated costs summarized 
above, and as described more fully in the draft

[[Page 32490]]

economic analysis of our proposed revision of critical habitat for the 
northern spotted owl (see below). Because the northern spotted owl is 
already subject to existing protections throughout most of its range, 
due to its threatened status under the Act, the costs attributable to 
the additional designation of critical habitat over and beyond existing 
costs are estimated to be relatively modest.

Draft Economic Analysis

    The purpose of the draft economic analysis is to identify and 
analyze the potential economic impacts associated with the proposed 
critical habitat designation for the northern spotted owl. The economic 
impact of the proposed critical habitat designation is analyzed by 
comparing scenarios both ``with critical habitat'' and ``without 
critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, considering protections 
already in place for the species (e.g., under the Federal listing and 
other Federal, State, and local regulations and guidelines, as 
described above in the section ``Existing Protections for the Northern 
Spotted Owl Absent Critical Habitat''). The baseline, therefore, 
represents the costs incurred regardless of whether critical habitat is 
designated. The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts are those not expected to occur absent the 
designation of critical habitat for the species. In other words, the 
incremental costs are those attributable solely to the designation of 
critical habitat, above and beyond the baseline costs; these are the 
costs we may consider in the final designation of critical habitat when 
evaluating the benefits of excluding particular areas under section 
4(b)(2) of the Act. The incremental costs of critical habitat do not 
include baseline costs that are associated with the listed status of 
the northern spotted owl, since these costs are in place regardless of 
critical habitat. For a further description of the methodology of the 
analysis, see the section ``Framework for the Analysis'' in the draft 
economic analysis.
    The draft economic analysis provides estimated costs of the 
potential economic impacts of the proposed revised critical habitat 
designation for the northern spotted owl. It identifies potential 
incremental costs as a result of the proposed critical habitat 
designation; as described above, these are those costs attributed to 
critical habitat over and above those baseline costs attributed to 
listing. The draft economic analysis quantifies, to the extent 
possible, potential economic impacts of northern spotted owl 
conservation efforts associated with timber management and other 
activities, such as linear projects (e.g., pipelines), as well as 
potential impacts on jobs that may be attributable to the designation 
of critical habitat.
    The draft economic analysis concludes that only a small fraction of 
the overall proposed revised designation could potentially result in 
more than minor, incremental administrative costs. Specifically, of the 
total acreage proposed for designation, the draft economic analysis 
concludes that changes in timber harvest practices attributable solely 
to the designation of critical habitat may occur on 1,389,787 ac 
(562,427 ha) of U.S. Forest Service and BLM land, or approximately 9 
percent of the total area proposed. In addition, potential exists for 
the owners of 306,869 ac (124,185 ha) of private land to experience 
changes in harvest levels due to the designation of critical habitat 
(approximately 2 percent of total acres proposed). No changes in 
harvests are expected on State lands as a result of the designation.
    There is uncertainty regarding the economic impacts due to the 
revised critical habitat for the northern spotted owl, especially 
regarding the extent to which critical habitat may lead to changes in 
forest management by land owners, in particular Federal land managers. 
In the past, it has generally been assumed that active forest 
management and conservation of critical habitat were incompatible land 
management goals. However, the Revised Recovery Plan, as reiterated by 
the proposed critical habitat rule, encourages Forest Service and BLM 
to consider some active forest management, both in dry and moist 
forests, as they carry out their management responsibilities.
    For the past two decades, Federal land managers have worked 
collaboratively with the Service to consult on actions occurring within 
spotted owl critical habitat. However, the current proposed revision of 
critical habitat is larger than the final designations of 1992 and 
2008, and, given the uncertainty regarding possible future actions by 
Federal land managers, we believed it expedient to evaluate in the 
draft economic analysis three scenarios of potential impact on Federal 
timber harvest. No one scenario is a precise prediction of what might 
happen in the future. Rather, these scenarios serve to bracket 
potential outcomes, and thereby inform the Secretary and the Service in 
making the best decision.
Scenario 1--Federal Land Managers Choose Prescriptions to Maintain 
Timber Harvest in Matrix Lands at Levels Similar to Recent Harvest
    In this scenario, it is assumed that Federal land managers will 
continue to manage these Matrix forests in a manner similar to that 
done in recent years under the 1992 and 2008 critical habitat. Federal 
timber harvest has been planned under the Standards and Guidelines of 
the Northwest Forest Plan, with an emphasis on thinning and some 
regeneration harvest. However, much of the regeneration harvest has 
been contentious, and has sometimes been legally challenged, based on a 
variety of environmental and social concerns (Baker 2011), whether it 
is within critical habitat or not. Therefore, in this scenario, it is 
assumed that harvest will continue to be mostly from thinning, and will 
continue at recent levels. This scenario results in little change in 
timber harvest from recent realized levels of harvest. The total 
annualized impacts to timber harvest operations under this scenario 
could range from $185,000 to $316,000.
Scenario 2--Federal Land Managers Choose To Implement Ecological 
Forestry Prescriptions in Matrix Lands
    In this scenario, Federal land managers implement ecological 
forestry prescriptions compatible with the considerations identified in 
the Revised Recovery Plan and the Standards and Guidelines of the 
Northwest Forest Plan. This approach may allow for some broader public 
support (i.e., reduced challenges) for variable retention harvest and 
thinning to meet long-term ecosystem management and restoration goals. 
Such an outcome should not result in harvest levels lower than Scenario 
2 above, and may result in a net increase above recent levels of 
realized harvest. The recommendations of the Revised Recovery Plan may 
allow agencies to choose to thin in some areas of Matrix within 
critical habitat, where formerly they took a more cautious hands off 
approach, or in certain forest types within the Matrix, they may choose 
to conduct some variable retention harvest or other activities, as 
appropriate and consistent with the recommendations of the Revised 
Recovery Plan. The total annualized increased revenue to timber harvest 
operations under this scenario could range from $1.23 million to $3.07 
million.

[[Page 32491]]

Scenario 3--Federal Land Managers Choose To Reduce Timber Harvest in 
Matrix Lands From Recent Levels
    In this scenario, it is assumed that Federal land managers will 
choose to reduce their timber management by 20 percent from the 
realized harvest levels of the recent past. That is, they will conclude 
that some of their timber harvest activities would be incompatible with 
the goals of critical habitat, and they will decide to reduce or not 
plan timber harvest in some portion of the Matrix forests that are 
within proposed critical habitat. If the BLM or the Forest Service does 
reduce planned harvest due to critical habitat, it will likely be in 
those portions of the Matrix that they believe have greater value to 
spotted owl recovery and should not be subject to timber management. 
The total annualized impacts to timber harvest operations under this 
scenario could range from $2.46 million to $6.14 million, based on 
potential reductions in timber harvest on Federal lands.
    Which of these scenarios, or combinations of these scenarios, comes 
to pass is largely dependent on the approaches undertaken by the land 
management agencies and the cooperative section 7 processes between the 
Forest Service or BLM and the Fish and Wildlife Service. Both the 
Forest Service and the BLM manage their timberlands under the direction 
of the NWFP, which includes provisions for management both within and 
outside of reserved areas. Inside reserves, we believe the guidance for 
development of late-successional forest characteristics is consistent 
with our recommendations for implementing ecological forestry methods 
to benefit the retention and development of spotted owl habitat. In the 
non-reserved, or the Matrix, portion of the landscape which these 
agencies manage, the NWFP provides minimum levels and sizes of standing 
trees that must remain post-harvest, depending on specific location 
within the range of the species. The NWFP does not, however, mandate 
that retaining only these minimum levels of retained trees is 
necessary. Indeed, in the past decade, the BLM and Forest Service have 
shifted their timber management emphasis in the Matrix from a 
regeneration harvest dominated program to one more focused on thinning 
prescriptions that leave more trees per acre than the minimums allowed 
under the NWFP. Since both the BLM and Forest Service have a proven 
track record of planning and implementing these thinning sales, we 
believe there will be a smooth transition to designing and implementing 
timber sales that are consistent with the ecological forestry 
recommendations in the Revised Recovery Plan and the proposed critical 
habitat designation and with the green-tree retention levels of the 
NWFP.
    The draft analysis also considers and provides a means of 
estimating potential employment impacts associated with the potential 
change in timber harvest under the above three scenarios. Increases or 
decreases in timber harvests from Federal or private lands could result 
in positive or negative changes in jobs, respectively. As discussed in 
the draft economic analysis, a recent report published by the Pacific 
Northwest Research Station of the USFS states that in Oregon there were 
9.4 direct jobs per MMBF of timber harvested in 2010, and 9.9 direct 
jobs per MMBF in Washington, for a weighted average of 9.61. Other 
studies focusing on specific geographic regions or earlier time periods 
estimate a broader range of jobs multipliers, suggesting the number of 
direct jobs affected in a specific geographic location could be smaller 
or larger, depending on the specific characteristics of the industry in 
that affected region (see discussion in draft economic analysis). Thus, 
increases or decreases in timber harvests from Federal or private lands 
could result in positive or negative changes in jobs, respectively. 
Scenario 1 does not forecast any reduction in harvest on Federal lands. 
Scenario 2 estimates an increase in timber harvest of 12 million board 
feet over the next 20 years on Federal lands. Scenario 3 estimates a 
reduction in timber harvest on Federal lands of 24 million board feet 
over the next 20 years. Please note that the scope of the analysis is 
limited to the incremental effects of critical habitat related to and 
within the geographic area of the proposed designation for the northern 
spotted owl. The analysis does not consider potential changes in timber 
activities on lands outside the proposed critical habitat designation. 
As such, this analysis cannot evaluate the potential effects related to 
the timber industry as a whole.
    Finally, the draft economic analysis estimates potential impacts to 
linear projects may be from $10,800 to $19,400. Therefore, the total 
potential impacts under the three scenarios for both timber industry 
and linear projects is estimated at from $196,000 to $335,000 under 
scenario 1, a net increase in revenue of from $0.89 million to $2.87 
million under scenario 2, and a net impact of from $2.65 million to 
$6.48 million under scenario 3.
    These outcomes, or variations and combinations of them, are 
primarily dependent on future policy decisions by the Federal agencies. 
For example, the Secretaries of Interior and Agriculture have expressed 
their support for active forest management to restore forest health and 
provide jobs to rural communities. The Service has also expressed 
support in the Revised Recovery Plan and the proposed critical habitat 
rule for some levels of active forest management within critical 
habitat as consistent with long term forest conservation and 
restoration goals. Of course, specific proposed actions must also be 
considered through the normal section 7 consultation process.
    As we stated earlier, we are soliciting data and comments from the 
public on the draft economic analysis and all aspects of the proposed 
rule. We may revise the proposed rule or supporting documents to 
incorporate or address information we receive during the public comment 
period. In particular, we may exclude an area from critical habitat if 
the Secretary determines that the benefits of excluding the area 
outweigh the benefits of including the area, provided the exclusion 
will not result in the extinction of this species.

Draft Environmental Assessment

    Outside the jurisdiction of the U.S. Court of Appeals for the Tenth 
Circuit, we do not need to prepare environmental analyses pursuant to 
the National Environmental Policy Act of 1969 (NEPA) 42 U.S.C. 4321 et 
seq., in connection with designating critical habitat under the Act, 
for the reasons outlined in a notice published 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 a challenge to the first 
rulemaking designating critical habitat for the northern spotted owl. 
Douglas County v. Babbitt, 48 F. 3d 1495 (9th Cir. 1995), cert. denied 
416 U.S. 1042 (1996)). Nevertheless, the Service, as a matter of 
discretion and not as a legal requirement, is preparing a draft 
environmental assessment.
    The draft environmental assessment will present the purpose of and 
need for critical habitat designation, the proposed action and 
alternatives, and an evaluation of the direct, indirect, and cumulative 
effects of the alternatives under the requirements of NEPA as 
implemented by the Council on Environmental Quality regulations (40 CFR 
1500 et seq.) and according to the Department of the Interior's NEPA 
procedures.
    The draft environmental assessment will assist the Service in 
deciding whether or not critical habitat will be

[[Page 32492]]

designated as proposed; if the proposed action requires refinement, or 
if another alternative is appropriate; or if further analyses are 
needed through preparation of an environmental impact statement. The 
draft environmental assessment will be available on June 4, 2012, at 
http://www.regulations.gov at Docket Number FWS-R1-ES-2011-0112, from 
the Oregon Fish and Wildlife Office's Web site (http://www.fws.gov/oregonfwo/--click on the link ``Spotted Owl Main Information Site''), 
or by contacting the Oregon Fish and Wildlife Office directly (see FOR 
FURTHER INFORMATION CONTACT). We are soliciting comments from the 
public on our draft environmental assessment.

Required Determinations--Amended

    In our March 8, 2012, proposed rule (77 FR 14062), we indicated 
that we would defer our determination of compliance with several 
statutes and executive orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the draft economic 
analysis. We have now made use of the draft economic analysis data to 
make these determinations. In this document, we affirm the information 
in our proposed rule concerning Executive Order (E.O.) 12866 
(Regulatory Planning and Review), E.O. 13563 (Improving Regulations and 
Regulatory Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 
12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, 
and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's 
memorandum of April 29, 1994, ``Government-to-Government Relations with 
Native American Tribal Governments'' (59 FR 22951). However, based on 
the draft economic analysis data, we are amending our required 
determination concerning the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.).

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 forestry and logging operations 
with fewer than 500 employees and annual business less than $7 million. 
To determine if potential economic impacts to these small entities are 
significant, we considered the types of activities that might trigger 
regulatory impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    Under the RFA, as amended, and following recent court decisions, 
Federal agencies are only required to evaluate the potential 
incremental impacts of rulemaking on those entities directly regulated 
by the rulemaking itself, and not the potential impacts to indirectly 
affected 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 insure 
that any action authorized, funded, or carried by the Agency is not 
likely to adversely modify critical habitat. Therefore, only Federal 
action agencies are directly subject to the specific regulatory 
requirement (avoiding destruction and adverse modification) imposed by 
critical habitat designation. Under these circumstances, it is our 
position that only Federal action agencies will be directly regulated 
by this designation. Therefore, because Federal agencies are not small 
entities, the Service may certify that the proposed critical habitat 
rule will not have a significant economic impact on a substantial 
number of small entities.
    We acknowledge, however, that in some cases, third-party proponents 
of the action subject to permitting or funding may participate in a 
section 7 consultation, and thus may be indirectly affected. We believe 
it is good policy to assess these impacts if we have sufficient data 
before us to complete the necessary analysis, whether or not this 
analysis is strictly required by the RFA. While this regulation does 
not directly regulate these entities, in our draft economic analysis, 
we have conducted a brief evaluation of the potential number of third 
parties participating in consultations on an annual basis in order to 
ensure a more complete examination of the incremental effects of this 
proposed rule in the context of the RFA. As discussed earlier in this 
notice and in more detail in our March 8, 2012, proposed rule (77 FR 
14062) and our draft economic analysis, we believe that the incremental 
effects of this proposed designation to be relatively small due to the 
extensive conservation measures already in place for the species, due 
to its being listed under the Act and because of measures provided 
under the NWFP and other conservation programs.
    Importantly, the incremental impacts of the rule must be both 
significant and substantial to prevent certification of the rule under 
the RFA and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the critical habitat designation, but the per-entity 
economic impact is not significant, the Service may certify. Likewise, 
if the per-entity economic impact is likely to be significant, but the 
number of affected entities is not substantial, the Service may also 
certify. Because per-entity impacts are currently uncertain, our 
evaluation focused on the number of small entities potentially 
affected.
    In our draft economic analysis (DEA), we determined that there may 
be third-party participants to consultations involved with timber 
harvest and linear projects. In estimating the potential number of 
entities involved with consultations on timber harvest, we used the 
projection of 1,000 consultations over the 20-year time horizon of the 
DEA related to timber harvest management, providing an assumption of 50 
consultations per year. We predict that many of these consultations 
will not involve third

[[Page 32493]]

parties, but data is lacking about third-party participation rates. For 
the sake of our evaluation, we assumed that third parties are involved 
with these consultations and that each party is a small entity, 
providing an annual estimate of 50 small entities that may be involved 
over the 20-year time horizon of the study. This is likely an over 
estimate of the number of third parties involved with timber management 
consultations and therefore an over estimate of the number of small 
entities involved as well. The DEA further explored the projection of 
small businesses in timber-related sectors in the geographic areas 
overlapping the critical habitat designation which differed depending 
on the specific data sets used, either 7,140 entities or 2,616 
entities. Using our conservative estimate of 50 small entities involved 
annually, the proportion of entities potentially impacted by the 
designation would be 0.70 percent and 1.9 percent, respectively, over 
the 20-year time horizon of the study. Based on these calculations, we 
have concluded that these proportions do not represent a substantial 
number of small business entities potentially affected in the timber 
management sector. Please refer to Appendix A of the DEA for further 
details of our evaluation.
    Next we explored the potential impact to third parties that may be 
involved with consultations related to linear projects. On the basis of 
similar conservative assumptions explained in the DEA, we concluded 
that there may be a total of 11 projects in a given year that may 
involve third parties. If we similarly assume that each of these 
parties represent small entities, then we estimate that 11 small 
entities in a given year could be impacted by the designation. However, 
based on an evaluation of the relative proportion these 11 entities may 
represent of the specific sector, we believe that they are unlikely to 
represent a substantial number. Further, the projected impacts to third 
parties resulting from the consultations on linear projects are 
anticipated to be administrative in nature. Thus, based on our 
conservative estimates in identifying third parties in this sector that 
potentially may be impacted and the projected proportion of the number 
of entities and types of impacts, we conclude that the designation 
would not result in a significant impact to a substantial number of 
small business entities in this sector. Please refer to Appendix A of 
the DEA for further details of our evaluation.
    In conclusion, we believe that, based on our interpretation of 
directly regulated entities under RFA and relevant case law, this 
designation of critical habitat will only directly regulate Federal 
agencies which are not by definition small business entities. However, 
though not necessarily required by the RFA, we chose to consider and 
evaluate the potential effects to third parties that may be involved 
with consultations with Federal action agencies related to the 
designation of critical habitat. As discussed above, we determined that 
there may be entities that would most likely be involved with 
consultations in two sectors--timber management and linear projects. 
However, based on our conservative evaluation of the number of entities 
in these sectors potentially impacted, the proportion of the affected 
entities to those representing the sector in the study area, and the 
types of impacts, we certify that, if promulgated, the proposed revised 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. As such, an 
initial regulatory flexibility analysis is not required.

Authors

    The primary authors of this notice are the staff members of the 
Oregon Fish and Wildlife Office, Pacific Region, U.S. Fish and Wildlife 
Service.

Authority

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

    Dated: May 1, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-13305 Filed 5-29-12; 4:15 pm]
BILLING CODE 4310-55-P