[Federal Register Volume 86, Number 10 (Friday, January 15, 2021)]
[Rules and Regulations]
[Pages 4820-4860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00484]



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Vol. 86

Friday,

No. 10

January 15, 2021

Part XI





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. 10 / Friday, January 15, 2021 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2020-0050; FF09E21000 FXES11110900000 212]
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.

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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 (Act) by excluding approximately 3,472,064 acres (1,405,094 
hectares) in Whatcom, Okanogan, Skagit, Chelan, Snohomish, King, 
Kittitas, Pierce, Yakima, Lewis, Cowlitz, Skamania, Clark, and 
Klickitat Counties in Washington; Tillamook, Washington, Multnomah, 
Hood River, Wasco, Yamhill, Clackamas, Marion, Polk, Lincoln, Linn, 
Jefferson, Benton, Lane, Deschutes, Douglas, Coos, Klamath, Curry, 
Jackson, and Josephine Counties in Oregon; and Del Norte, Siskiyou, 
Humboldt, Trinity, Shasta, Tehama, Mendocino, Glenn, Lake, and Colusa 
Counties in California, under section 4(b)(2) of the Act. These 
exclusions are based on a reconsideration of the relevant impacts under 
section 4(b)(2) of the Act as well as new information since our 2012 
revised critical habitat designation for the northern spotted owl. This 
final rule focuses only on new exclusions under section 4(b)(2) of the 
Act; we are not making any other revisions to the northern spotted owl 
critical habitat designation.

DATES: This rule is effective March 16, 2021.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R1-ES-2020-0050 and at http://www.fws.gov/oregonfwo. Comments and materials we received, as well as 
some supporting documentation we used in preparing this rule, are 
available for public inspection at http://www.regulations.gov under 
Docket No. FWS-R1-ES-2020-0050.
    The coordinates from which the Service generated the maps are 
included in the administrative record for this critical habitat 
designation and are available at http://www.regulations.gov at Docket 
No. FWS-R1-ES-2020-0050 and at http://www.fws.gov/oregonfwo. The GIS 
data reflecting the revised critical habitat units can be downloaded at 
https://ecos.fws.gov/ecp0/profile/speciesProfile.action?spcode=B08B 
under the heading Critical Habitat Spatial Extents. Any additional 
tools or supporting information that we developed for this critical 
habitat designation will also be available at the Service website and 
in the preamble at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Gary Frazer, U.S. Fish and Wildlife 
Service, Department of the Interior, Washington, DC 20240, telephone 
202/208-4646. 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. In settlement of litigation 
challenging the critical habitat rule, the Service agreed to submit a 
proposed revised rule to the Federal Register that identifies proposed 
exclusions under section 4(b)(2) of the Endangered Species Act of 1973, 
as amended (16 U.S.C. 1531 et seq.; hereafter, Act or ESA) by July 15, 
2020, and to submit to the Federal Register a final revised critical 
habitat rule on or before January 6, 2021, or withdraw the proposed 
rule by that date if we determined not to exclude any areas from the 
designation under ESA section 4(b)(2). We delivered a proposed rule to 
the Federal Register on July 15, 2020, which was published on August 
11, 2020 (85 FR 48487).
    What this rule does. We revise the designation of critical habitat 
for the northern spotted owl by excluding additional areas.
    Basis for this rule. Under section 4(b)(2) of the Act, the 
Secretary may exclude an 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 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 3,472,064 acres 
(1,405,094 hectares) in Whatcom, Okanogan, Skagit, Chelan, Snohomish, 
King, Kittitas, Pierce, Yakima, Lewis, Cowlitz, Skamania, Clark, and 
Klickitat Counties in Washington; Tillamook, Washington, Multnomah, 
Hood River, Wasco, Yamhill, Clackamas, Marion, Polk, Lincoln, Linn, 
Jefferson, Benton, Lane, Deschutes, Douglas, Coos, Klamath, Curry, 
Jackson, and Josephine Counties in Oregon; and Del Norte, Siskiyou, 
Humboldt, Trinity, Shasta, Tehama, Mendocino, Glenn, Lake, and Colusa 
Counties in California, under section 4(b)(2) of the Act.
    This rule revises the 2012 critical habitat designation based upon 
the Secretary's determination that the benefits of exclusion of 
particular areas of critical habitat outweigh the benefits of 
designation of particular areas of critical habitat based on economic, 
national security and other relevant impacts. Based upon the best 
scientific and commercial data available, the Secretary has not 
concluded that these exclusions will result in extinction of the 
species.

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 and announced the availability of the associated 
economic analysis and environmental assessment. 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. In December of 2019, the plaintiffs filed a motion with 
the district court seeking permission to file a supplemental brief 
regarding the United States Supreme Court's decision in Weyerhaeuser 
Co. v. U.S. Fish and Wildlife Service, 139 S. Ct. 361 (2018), 
concerning the designation of critical habitat for the dusky gopher 
frog. The plaintiffs asserted that supplemental briefing on the 
Weyerhaeuser decision would benefit the district court's consideration 
of two of their arguments regarding the 2012 northern spotted owl 
critical habitat designation: That the Service unlawfully designated 
areas that are not northern spotted owl habitat, and that the Service 
failed to weigh the designation's economic impacts and consider other 
relevant factors when excluding lands under section 4(b)(2).
    On April 13, 2020, we entered into a stipulated settlement 
agreement

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resolving the litigation. The settlement agreement was approved and 
ordered by the court on April 26, 2020. Under the terms of the 
settlement agreement, the Service agreed to submit a proposed revised 
critical habitat rule to the Federal Register that identifies 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, subsequently extended by agreement to 
January 6, 2021, or withdraw the proposed rule by that date if we 
determined not to exclude any areas from the designation under ESA 
section 4(b)(2). We delivered a proposed rule to the Federal Register 
on July 15, 2020, which was published on August 11, 2020 (85 FR 48487), 
and by this final rule we exclude the particular areas described below 
from the designation.

Summary of Comments and Recommendations

    In the August 11, 2020, proposed revised critical habitat rule (85 
FR 48487), we requested that all interested parties submit written 
comments on the proposed revision by October 13, 2020. We requested 
comments on the exclusions discussed in the proposed rule and invited 
comments on any additional proposed exclusions the public requested we 
consider. We also contacted appropriate Federal, State, and local 
agencies, scientific organizations, 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 
August 16, 2020, and in the Medford Mail Tribune on August 17, 2020. We 
did not receive any requests for a public hearing.
    During the comment period, we received 572 public comment letters 
addressing the proposed revised critical habitat designation. Many 
comments were non-substantive in nature, expressing either general 
support for or opposition to provisions of the proposed revised rule 
with no supporting information or analysis, or expressing opinions 
regarding topics not covered within the proposed revised regulation. We 
also received many detailed substantive comments with specific 
rationale for support of or opposition to specific portions of the 
proposed revised rule as well as specific comments requesting 
additional exclusions. Below, we summarize and respond to the 
substantive comments on the proposed revised regulation. Comments 
received were grouped into general categories specifically relating to 
the proposed revised critical habitat designation (85 FR 48487, August 
11, 2020), and are addressed in the following summary.

Comments From Federal Agencies

    Comment (1): The U.S. Department of Agriculture Forest Service 
(USFS) Region 6 expressed neither support for nor opposition against 
the proposed critical habitat revision. It noted however 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 fire behavior as tools for 
determining where critical habitat designations should be revised 
throughout the range of the northern spotted owl. Additionally, we 
received a comment letter from the Under Secretary, Natural Resources 
and Environment, Department of Agriculture supporting Interior's 
efforts to ``right size'' the northern spotted owl critical habitat 
designation because of the difficulties encountered by the Forest 
Service 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 
Forest Service and the FWS work together in protecting the northern 
spotted owl and lowering the risks of catastrophic wildfire.
    Our response: We thank the Forest Service for its response and 
recognize that the exclusion of particular areas from critical habitat 
may lessen one of the regulatory burdens for the Forest Service in 
carrying out its statutory mission. We also agree that good management 
of the Forest Service lands may provide additional environmental 
benefits including possibly reducing the risk of catastrophic wildfire, 
which may benefit for the northern spotted owl by protecting its 
habitat from destruction. Because ESA section 7 consultation will be 
completed for discretionary Federal actions and decisions where 
northern spotted owls are present, the additional benefit of ESA 
section 7 consultation for adverse modification of critical habitat is 
minimal compared with the environmental benefits of additional forest 
management. For example, we recognize that having more lands in the 
potential timber harvest base may permit the Bureau of Land Management 
(BLM) and U.S. Forest Service (USFS) to allow longer cycles between 
timber harvests. Longer cycles between timber harvests can have many 
environmental benefits, including ensuring a mix of tree ages, which 
can be used by the northern spotted owl for connectivity between 
nesting areas, and lessening the risk of catastrophic wildfire, which 
harms the northern spotted owl and puts rural communities, private 
property and lives at risk.

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 to 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 critical habitat designation. We did not 
receive comments from any State or State agency.

Comments From Counties

    We received comments from Lewis, Klickitat, and Skamania Counties 
in Washington; from Douglas and Harney Counties in Oregon; and from 
Siskiyou County in California. All comments from counties pertained to 
either the economic or environmental analysis and requested additional 
exclusions based on economic or environmental factors; see Economic 
Analysis Comments and Exclusions Comments below for County comments and 
our responses.

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

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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 (CTCLUSI) and the Cow Creek 
Band of Umpqua Tribe of Indians (CCBUTI) pursuant to the Western Oregon 
Tribal Fairness Act (Pub. L. 115-103). This revised rule excludes those 
recently transferred lands from critical habitat designation, which 
were referred to as ``Tribal lands'' in the proposed rule but which we 
now refer to as ``Indian lands'' as defined in the 2012 critical 
habitat rule. We considered Tribal management plans in our analysis of 
these exclusions, 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 the areas proposed 
for exclusion provide important connectivity between the Coast Range, 
Cascades, and Klamath/Siskiyou Mountains Populations and that exclusion 
could reduce gene flow, cause further isolation, and increase the 
probability of extinction of the northern spotted owl.
    Our response: We have thoroughly examined each of the particular 
areas described in this final rule, weighing the benefits of exclusion 
with the benefits of inclusion as critical habitat. We then examined 
the totality of the excluded areas and, based on the best scientific 
and commercial data available and have not concluded that the 
exclusions will result in the extinction of the northern spotted owl. 
As noted in the preamble to this rule, the standard against which to 
measure exclusions under section 4(b)(2) is whether the exclusions 
``will'' result in extinction. With regard to the connectivity 
concerns, all discretionary Federal actions and decisions that ``may 
affect'' the northern spotted owl where it is found will be subject to 
section 7 consultation to ensure that the continued existence of the 
northern spotted owl is not jeopardized. This includes those owls using 
excluded areas for connectivity between critical habitat designations. 
This should ensure that populations will not become isolated because 
owls will continue to be protected as they migrate from one range to 
another. Additionally, the northern spotted owl will also be protected 
by the prohibition against ``take'' of the species under ESA section 9. 
Thus, we have not concluded that these exclusions will result in the 
extinction of the northern spotted owl. Some of the areas used by the 
northern spotted owl for migration are secondary growth forests. The 
Service anticipates that excluding such areas from critical habitat 
will not change their characteristics as secondary growth forests; 
therefore, the Service anticipates the areas will continue to function 
as habitat for migratory purposes.
    Comment (4): Commenters noted that the lands proposed for exclusion 
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, December 4, 2012), and so questioned how 
those lands could now be appropriate for exclusion from designation.
    Our response: Areas that are found essential to the conservation of 
the species are appropriate to 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 he determines that the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of the critical habitat designation, unless he 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 
Secretary has the discretion to consider these exclusions in light of 
either new information that has come about since the 2012 rule, as well 
as a consideration of relevant factors not considered in 2012. See our 
analysis under Consideration of Impacts under Section 4(b)(2) of the 
Act. Because exclusions of these particular areas will not result in 
the extinction of the northern spotted owl, based upon our 
consideration of the best scientific and commercial data available, we 
are making the exclusions set forth in this rule.
    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 more suitable 
habitat.
    Our response: See our response to Comment (3).
    Comment (6): Commenters stated that 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.
    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 (O&C 
Act; Pub. L. 75-405) addresses the management of O&C lands. 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 lands as critical habitat is proper in this 
case.
    Second, all discretionary Federal actions where northern spotted 
owls are found will be subject to section 7 consultation to ensure that 
the continued existence of the northern spotted owl is not jeopardized. 
This should ensure that populations will not become isolated because 
owls will continue to be protected as they migrate from one range to 
another. Third, the northern spotted owl will also be protected by the 
prohibition against ``take'' of the species under ESA section 9. 
Finally, once the Secretary determines that the benefits of excluding a 
particular area outweigh the benefits of including that area, the 
remaining legal standard governing whether the Secretary can exclude 
that area from critical habitat is whether exclusion of the area will 
result in extinction of the species. Although there

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are no cases directly on point, the two cases that have discussed 
``extinction'' have done so with reference to the ``survival'' of the 
species rather than recovery of the species. See Northern New Mexico 
Stockman's Association v. United States Fish and Wildlife Service, _F. 
Supp.3d_ , 2020 WL 6048149, 117 (D.N.M. 2020); Gifford Pinchot Task 
Force v. USFWS, 378 F.3d 1059, 1069-71 (9th Cir. 2004) (rejecting the 
previous FWS ESA section 7 regulation defining ``destruction or adverse 
modification'' because the regulation improperly conflated survival and 
recovery). Thus, 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.

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 
Endangered Species Act section 7.
    Our response: We completed a programmatic section 7 consultation on 
the BLM RMPs in 2016 under the assumption that BLM will implement its 
actions consistent with the RMPs 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).
    Additionally, even on excluded lands, all discretionary Federal 
actions and decisions on areas that are occupied by the species will be 
required to undergo section 7 consultation if such action or decision 
``may affect'' the northern spotted owl. Such consultation will ensure 
that the continued existence of the northern spotted owl is not 
jeopardized. Thus, we have determined that additional consultation 
addressing effects to designated critical habitat provide little 
incremental conservation benefit and thus would not be an efficient use 
of limited consultation and administrative resources. Given this, 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 particular areas as critical 
habitat are relatively minor when compared to the benefits of excluding 
them from critical habitat.
    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 fires 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.
    Our response: We recognize that wildfire can be detrimental to the 
northern spotted owl and its habitat and that the number of burned 
acres far exceeded modeled numbers. Commenters also noted that in 
September 2020, several major wildfires burned across portions of the 
range of the northern spotted owl in Washington, Oregon, and 
California, negatively affecting habitat conditions. The fires impacted 
multiple ownerships, including Federal lands managed by the BLM and 
USFS, State lands, and private lands. As part of our balancing of the 
benefits of inclusion with the benefits of exclusion of critical 
habitat, we 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. Although the commenters suggest that higher than 
projected wildfires necessitate designating more area as critical 
habitat, the Service notes that removing the obligation to consult on 
certain areas may facilitate wildfire management, possibly protecting 
these areas from wildfire destruction. Thus, we have included a 
consideration of wildfire management as part of the balancing for 
excluding particular areas from the critical habitat designation.
    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. The 
commenter stated that mitigating the risks of climate change require 
greater conservation of northern spotted owl habitat and, therefore, 
that these additional exclusions should not be made.
    Our response: We analyzed climate change and its potential impact 
on northern spotted owl recovery in the Revised Recovery Plan for the 
Northern Spotted Owl (FWS 2011). We noted that 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 Plan acknowledged the uncertainty associated with 
estimating rates of habitat recruitment (FWS 2011, p. B-8).
    The BLM did not incorporate projections of climate change into the 
simulation of the growth of stands through time in its 2016 RMPs 
because of the uncertainty in climate change predictions and 
limitations in downscaling the available climate predictions for use in 
forest stand growth and harvesting models (BLM 2016c, p. 89). However, 
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 EIS, then the BLM would engage in additional planning

[[Page 4824]]

steps and NEPA procedures (BLM 2016a, p. 111).
    The BLM may also apply adaptive management by acting on information 
found through the monitoring questions (Appendix B) (BLM 2016a, p. 111; 
BLM 2016b, p. 133).
    Comment (11): Commenters asserted that our statement in the 
proposed rule that the designation of the areas proposed for exclusion 
provided ``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'' 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.
    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: In the U.S. District Court for the District of 
Columbia, in a consolidated set of cases, the court 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, e.g., 
American Forest Resource Council et al. v. Steed (No. 16-1599-RJL) 
(Memorandum Opinion, November 22, 2019). Although we will not speculate 
on the future resolution of this litigation, we have excluded the O&C 
lands because the benefits of exclusion outweigh the benefits of 
inclusion and, based on the best scientific and commercial data 
available, the Secretary has not concluded that the exclusions of these 
areas will result in extinction of the species. See our response to 
Comment 25.

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.
    Our response: 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). Even despite the significant acreages of critical habitat that 
have been set aside for the northern spotted owl since 1990, estimated 
populations of northern spotted owl have declined more than 70% since 
the listing of the northern spotted owl. 85 FR at 81145, December 15, 
2020. A recent published demographic study for the northern spotted owl 
(Dugger et al. 2016, entire) found that the nonnative barred owl that 
is invading northern spotted owl habitat was currently the stressor 
with the largest negative impact on the northern spotted owl through 
competition for resources. Thus, the current best available scientific 
and commercial data indicate that the largest negative contributing 
impact on northern spotted owl population is the invasive barred owl. 
Mitigation for the barred owl is currently being analyzed through the 
barred owl removal experiment that has been underway since 2013. 
According to the recently completed species assessment for the northern 
spotted owl, the northern spotted owl is showing a positive response to 
the removal of the barred owl on some of the study areas. Further, the 
study areas occur in both areas that have previously been designated as 
critical habitat and areas that have not been included. This supports 
our understanding that exclusions of critical habitat designations in 
these areas will not result in the extinction of the northern spotted 
owl.

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 LSRs (late-
successional reserves) 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: Our exclusion of the areas described in this rule is 
based on our reevaluation of the benefits of exclusion of particular 
areas as critical habitat with the benefits of inclusion of particular 
areas as critical habitat. That reanalysis along with the consideration 
of the other relevant impacts of a critical habitat designation support 
our decision. We also note that even on excluded lands, all 
discretionary Federal actions and decisions on areas that are occupied 
by the species will be required to undergo section 7 consultation if 
such action or decision ``may affect'' the northern spotted owl. Such 
consultation will ensure that the continued existence of the northern 
spotted owl is not jeopardized. Likewise, the prohibitions of ESA 
section 9 continue to be applicable.
    Comment (15): A commenter 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. The commenter 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 contain 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 take 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. These measures in the BLM RMPs, which are unchanged by 
the exclusions made under section 4(b)(2) in this rule, will minimize 
near-term negative effects to occupied northern spotted owl habitat as 
habitat continues to further develop late-successional characteristics 
in the reserve land use allocations.
    Comment (16): Commenters stated that our proposal ignores the 
northern spotted owl Recovery Plan recommendation to protect older, 
complex forests on Federal lands west of the crest of the Cascades 
range.

[[Page 4825]]

    Our response: Although the ESA requires completion of a recovery 
plan for species listed under the ESA, the legal standards for a 
recovery plan are statutorily different than those Congress developed 
for consideration of exclusions under section 4(b)(2). While the 
Recovery Plan properly focuses on recovery, the consideration of 
critical habitat exclusions under section 4(b)(2) focus on the 
prevention of extinction. The courts that have discussed ``extinction'' 
have done so with references to the ``survival'' of the species rather 
than recovery of the species. See Northern New Mexico Stockman's 
Association v. United States Fish and Wildlife Service, F. Supp.3d , 
2020 WL 6048149, 117 (D.N.M. 2020); Gifford Pinchot Task Force v. 
USFWS, 378 F.3d 1059, 1069-71 (9th Cir. 2004) (rejecting the previous 
FWS ESA section 7 regulation defining ``destruction or adverse 
modification'' because the regulation improperly conflated survival and 
recovery). Thus, 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.
    Even with these exclusions, the total designated critical habitat 
includes 6,105,279 acres (2,470,719 hectares) of designated critical 
habitat as well as several million additionally protected acres of 
habitat for the northern spotted owl in designated wilderness and 
National Parks (see 77 FR 1876 at 71986)
    Comment (17): Commenters expressed concern that excluding critical 
habitat will impede recovery of the northern spotted owl.
    Our response: We considered the effects of exclusion of these 
particular areas of critical habitat on recovery of the species in our 
analysis of the benefits of exclusion against the benefits of inclusion 
but nonetheless concluded that the benefits of exclusion outweighed the 
benefits of inclusion as described in this rule. The correct analysis 
for a determination of whether to exclude particular areas from 
critical habitat is whether the exclusions will result in extinction of 
the species. As stated above, the courts that have discussed 
``extinction'' have done so with references to the ``survival'' of the 
species rather than recovery of the species. See Northern New Mexico 
Stockman's Association v. United States Fish and Wildlife Service, _F. 
Supp.3d _, 2020 WL 6048149, 117 (D.N.M. 2020); Gifford Pinchot Task 
Force v. USFWS, 378 F.3d 1059, 1069-71 (9th Cir. 2004) (rejecting the 
previous FWS ESA section 7 regulation defining ``destruction or adverse 
modification'' because the regulation improperly conflated survival and 
recovery). Thus, 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. 
It is against this correct legal backdrop that we have determined that 
the exclusion of these particular areas of critical habitat outweighs 
the benefits of inclusion, and that, based upon the best scientific and 
commercial data available, we have not concluded that exclusion of 
these areas will result in extinction of the species.
    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 five years under the 
NWFP) prior to making changes in the critical habitat designation.
    Our response: 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. The impact of barred owls is expected to grow unless 
proactively managed. To that end, our recent Species Status Report 
notes the preliminary positive response that northern spotted owls have 
in certain areas where we have implemented the experimental barred owl 
removal program. For example, in the most recent Species Status Report, 
the FWS noted:

    The Barred Owl Removal Experiment has been underway since 2013. 
There are encouraging signs of a positive spotted owl response to 
the removal of barred owls on some study areas. For example, on all 
study areas the number of occupied sites on the treatment areas 
(where barred owls are removed) have been maintained while the 
number of occupied sites on the control area continue to decline. On 
the Hoopa treatment area, the apparent survival rate of spotted owls 
has increased by almost 10 percent compared to the period 
immediately before removal began. Species Status Report, at page 91. 
Report is published at https://www.regulations.gov/document?D=FWS-R1-ES-2014-0061-0030

    Regarding a 2020 meta-analysis, the latest 5-year demographic 
analysis is still in process and not yet available for our review. The 
most current demographic analysis was published in 2016 and was 
considered in the BLM RMPs' analyses and our 2016 Biological Opinion.
    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: The ESA was written by members of Congress. They 
conveyed a powerful tool on the Secretary of the Interior by giving him 
the authority to exclude areas unless he determined that exclusion will 
result in extinction of the species. Our rationale for excluding the 
critical habitat exclusions is not to circumvent section 7 
consultation. Rather, 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.

Economic Analysis Comments

Comments From Counties

    Comment (20): Several counties requested that the Service undertake 
a new economic analysis to consider the economic impacts of the 
designation on local communities and natural resource-based economies.
    Our response: We reviewed the 2012 final economic analysis (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 consultants who 
prepared the final economic analysis regarding the additional 
information submitted (IEc 2020). See 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)). As 
explained in response to Comment 21, the information in the IEc 2012 
report in combination with the Brattle Report continues to be the best 
scientific and commercial data available. Were we to be adding 
additional lands to this critical habitat designation, we agree that a 
new economic analysis would be required.
    Comment (21): The American Forest Resource Council (AFRC 2020) 
provided public comments requesting that the Service exclude at least 
2,506,890 additional acres in addition to the 204,653 acres proposed 
for exclusion. It

[[Page 4826]]

provided a new report prepared by The Brattle Group (2020) (Brattle 
report) critiquing the 2012 Critical Habitat economic analysis (IEc 
2012). 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 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 is a review of our analysis of 
potential timber harvest losses attributable to northern spotted owl 
critical habitat designation in 2012. The Brattle report follows the 
same analytic approach for measuring timber harvest impacts as employed 
in the economic analysis for the critical habitat designation, but uses 
alternative assumptions or updated data. These adjustments yield the 
following differences when compared to the results of the 2012 economic 
analysis (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;
     The estimated stumpage values are lower.
    As described by IEc in their review of this information, the effect 
of these changes in inputs by the Brattle report results in a higher 
measure of the negative annualized timber harvest impacts across the 
affected acres. The Brattle report asserts that across 1.7 million 
acres, the critical habitat designation greatly diminishes harvest and 
causes losses to the market of between $66.4 million and $77.2 million 
on an annualized basis, and between $753 million and $1.18 billion over 
20 years on a net present value (NPV) basis. AFRC and others suggest 
that the results of the Brattle report support their request for 
exclusion of additional acres based on economic impacts.
    Our Response: Section 4(b)(2) of the ESA gives the Secretary 
discretion on how to weigh economic impacts in addressing the benefits 
of exclusion against the benefits of inclusion of particular areas of 
critical habitat. Thus, while we find several issues with the analysis 
provided in the Brattle report, specifically the assumptions or data 
used to produce the estimate of negative annualized timber harvest 
impacts and their numeric conclusions due to the critical habitat 
designation, we agree that there is an incremental negative economic 
impact associated with the designation of critical habitat for the 
northern spotted owl.
    First, the Brattle report states that the higher number of acres 
where incremental impacts may occur (1.7 million acres) is based upon a 
review of GIS files and other related information. However, the report 
provides no clear basis for this increase. We asked IEc to review the 
Brattle report and they concluded that they could not replicate the 
result. Additionally, the Brattle report does not evaluate the 
potential incremental effects as it may occur across the geographic 
area of the designation, by critical habitat units and subunits. In 
contrast, our 2012 economic analysis 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). The 
Brattle report provides no such analysis and simply provides gross 
measures of potential impact across approximately 1.7 million acres.
    Second, the Brattle report assumes a higher baseline annual harvest 
potential on USFS and BLM lands (a 9-fold increase on lands managed by 
USFS and a 4-fold increase on lands managed by BLM). We understand that 
the report relied on average yields from 2018-2020 harvest data on 
lands managed by BLM for moist and dry forests and then translates 
these harvest levels into estimates of long-term annual yields across 
the acres where the report assumes incremental impacts may occur. The 
report also assumes 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 hypothetical, however, as the BLM and USFS are unlikely 
to have similar yields generally for a variety of reasons; 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. Under the RMPs, 
the BLM assumed harvest of 8 percent of forested land base per decade 
within all land use allocations (Hooper 2020, pers. comm.). This is 
significantly lower than the assumptions made in the Brattle report. In 
contrast, we based our yield rates on actual harvest data provided by 
the BLM and USFS over an extended period. For lands managed by BLM, the 
2012 economic analysis 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, the 2012 economic analysis 
used projected yield rates provided by the USFS for each critical 
habitat unit.
    Third, the Brattle report assumes an 80 percent reduction in 
harvest volumes due to the critical habitat designation versus the 20 
percent used in the 2012 economic analysis high impact scenario. 
Specific information supporting the assumption of an 80 percent 
reduction in harvest volumes was not provided in the report; rather, 
the report indicates that this assumption is based on discussions with 
AFRC and unspecified comments provided by the USFS and BLM on the 2012 
economic analysis. Additionally, the Brattle report notes 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 2012 economic analysis. 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 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 2012 economic 
analysis 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 2012 economic analysis

[[Page 4827]]

``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 report 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 2012 
economic analysis (IEc 2012) ($66 to $77 million versus $6.5 million). 
As noted above, the Brattle report does not distribute its overall 
measure of impacts across the designation's subunits. We note that the 
Brattle report included 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 are unable to confirm the economic 
conclusions in the Brattle report.
    Despite these concerns with the Brattle Report, even the economic 
study in 2012 by IEc notes a negative incremental impact because of the 
designation of critical habitat for the northern spotted owl. Our 
weighing of the benefits of exclusion against the benefits of inclusion 
considers these negative economic impacts. We have reevaluated the 
relative impact of even an economic loss for rural communities already 
faced with impacts including the initial listing of the species as well 
as the unquantified effects in the 2012 analysis that have taken on 
increasing importance due to more recent economic trends. See 
Consideration of Economic Impacts.
    (b) The Brattle report included information on annual timber 
harvest levels on Federal lands in 18 counties within California, 
Oregon, and Washington, from 2002-2018. 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 reviewed this information and found errors and 
assumptions in the Brattle report. First, four 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. Second, of the remaining 14 counties cited in the 
report that contain some spotted owl critical habitat, the commenter 
reports timber harvest declines occurring in seven counties somewhere 
around (i.e., proximally before and after) the year 2012, stable or 
flat trends in three counties, and increased harvest levels in four 
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 the harvest levels between years going 
back to 2002. Third, the analysis did not include all of the 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.
    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 lands harvest data in Oregon counties with northern spotted owl 
critical habitat. The annual average harvest from 2002-2012 on 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 2013-2019, after the 2012 critical rule was published, was 235 
million board feet; the total in 2019 was 272 million board feet 
offered for sale. Thus, annual harvest appears to have increased 
subsequent to the 2012 designation of critical habitat. Likewise, the 
annual average harvest from 2002-2012 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 2013-2019, 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. However, we 
also agree that the relative impact of even a ``relatively small'' 
economic loss for rural communities already faced with impacts 
including the initial listing of the species can economically impact 
that rural community. Thus, as part of our analysis of the particular 
areas in this case and based on the totality of the circumstances, we 
have determined the benefits of exclusions of these particular areas 
outweigh the benefits of inclusion.
    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 2012 economic analysis is flawed with respect to Douglas County and 
should be revised.

[[Page 4828]]

    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 designation 
(which came afterwards, in late 2012) but describes general pressures 
on the timber industry.
    Our 2012 economic analysis (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 economic analysis 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 
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).
    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 economic analysis contracted by the Service and 
written by Industrial Economics (IEc 2012), even incorporating a 
summary of the Kusel and Saah report (see our response to Comment (201) 
in the December 4, 2012, critical habitat rule (77 FR 71876, p. 
72040)). The Service believes the 2012 economic analysis (IEc 2012) is 
a reasonable assessment of the quantified costs related to timber 
harvest. We have reviewed other aspects of the 2012 final economic 
analysis (IEc 2012) and determined the unquantified effects, including 
the effects associated with ``linear projects'' have become more 
significant due to recent economic trends that were not foreseen in 
2012. In 2012, we acknowledged that ``considerable uncertainty 
surrounds the future level of construction of natural gas pipelines and 
electric transmission lines as significant uncertainty exists related 
to the level of demand for natural gas and electricity from hydropower 
sources. Due to this uncertainty, this analysis does not attempt to 
forecast activity associated with the construction of new natural gas 
pipelines and storage facilities or transmission lines related to 
hydro-power generation based on historical activity levels within the 
proposed critical habitat area in the foreseeable future.'' (IEc 2012) 
The uncertainty continues to persist but the recent trends in the 
electricity power sector makes these unquantified effects more 
important and significant. However, the persisting uncertainty makes 
new analysis difficult.

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). All of the States impacted by the critical 
habitat designation for the northern spotted owl are located within the 
jurisdiction of the Ninth Circuit Court. Therefore, consistent with the 
ruling in Douglas County, conducting a NEPA analysis and completion of 
a biological opinion on the proposed exclusions would be redundant, and 
an inefficient use of limited government resources.

Section 4(b)(2) Exclusions Comments

    Comment (25): Commenters variously requested that we exclude all 
O&C lands, all USFS matrix lands, all USFS lands, BLM lands outside the 
Harvest Land Base, and 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 on O&C 
lands and matrix lands.
    Our Response: We have analyzed the statutory basis for the O&C 
lands and the USFS matrix lands in the section entitled Exclusion of 
Additional Federal Lands. Please see that section for a response.
    (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.
    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 concluded 
the 2016 RMPs (including their consideration of the Endangered Species 
Act) does not conflict with the O&C Act, a conclusion affirmed by an 
appellate court (see Pacific Rivers v. BLM (No. 19-35384) (Memorandum, 
May 15, 2020)). In a separate proceeding, the U.S. District Court for 
the District of Columbia, in a

[[Page 4829]]

consolidated set of cases, 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, e.g., American Forest Resource Council 
et al. v. Steed (No. 16-1599-RJL) (Memorandum Opinion, November 22, 
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 final rule. One commenter 
suggested that we wait for the outcome of that proceeding before 
revising critical habitat; another commenter indicated that the court 
ruling, even without the remedy order, supported the exclusion of all 
O&C lands from designated critical habitat.
    As stated in the section entitled Consideration of Impacts under 
Section 4(b)(2) of the Act, we have considered the statutory mandates 
for the lands mandated by the BLM and USFS as part of our exclusion 
analysis. The Secretary's decision in this case was not based on 
speculation about the outcome of a particular case but upon a weighing 
of the benefits of inclusion against the benefits of exclusion of 
particular areas of critical habitat. Because, based on the best 
scientific and commercial data available, the Secretary has not 
concluded that the exclusions will result in extinction of the species, 
we are granting the request to exclude the O&C lands and NWFP matrix 
lands from this critical habitat designation.
    (c) A commenter asserted that O&C lands managed by the BLM and land 
managed by the USFS should be excluded because the NWFP and RMPs should 
guide management on Federal lands since they are consistent with the 
Recovery Plan for the Northern Spotted Owl (FWS 2011).
    Our Response: The Service agrees that 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. All USFS actions 
carried out under the NWFP since the 2012 designation of critical 
habitat that have undergone section 7 consultation have also resulted 
in our determination that there was no destruction or adverse 
modification of critical habitat, affirming that the management of 
these lands is consistent with the critical habitat designation.
    Additionally, all discretionary USFS and BLM actions carried out 
under the NWFP since the 2012 designation of critical habitat have 
undergone section 7 consultation on a project-by-project basis and have 
been found to be consistent with the Endangered Species Act. The 
determination of whether to exclude particular areas from a critical 
habitat designation is whether the benefits of exclusion outweigh the 
benefit of inclusion, so long as, based on the best scientific and 
commercial data available, unless the Secretary concludes that the 
extinction of the species will result from the exclusions. Our 
considered analysis of the statutory requirements for a critical 
habitat designation has been fully documented and discussed in this 
rule.
    (d) Non-O&C BLM lands should be excluded for ease of 
administration.
    Our Response: We are excluding all BLM Harvest Land Base lands 
addressed in the 2016 RMPs (referred to as ``matrix lands'' prior to 
the 2016 RMPs) that are not managed under the O&C Act (approximately 
12,000 acres) from critical habitat for the northern spotted owl. See 
Consideration of Impacts under Section 4(b)(2) of the Act.
    (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 25(b), (c) and (e) above.
    Comment (26): Commenters requested that we exclude: All unoccupied 
areas; areas of younger forests; all critical habitat subunits that 
have 50 percent or more younger forests; areas described as dispersal 
habitat; ``habitat capable'' lands; stands under 80 years old; and low-
quality habitat.
    Our Response: We decline to revisit whether younger forests, 
including stands under 80 years old, habitat capable lands, stands 
under 80 years old and low-quality habitat fit within the definitions 
of habitat or critical habitat for the northern spotted owl. As stated 
in our proposed rule, the purpose of this rule was to consider 
exclusion of particular areas based on section 4(b)(2) of the ESA. The 
determination of whether younger forests, including stands under 80 
years old, areas for dispersal habitat, habitat capable lands and low-
quality habitat falls outside the definitions of habitat and critical 
habitat is not contemplated by this rulemaking.
    Comment (27): Commenters requested that we exclude all California 
lands, areas of high or moderately high fire hazard risk or fire-prone 
forests, dry forest in California, dry forest in the Eastern Washington 
Cascades, and previously burned Late Successional Reserves, 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: Both the Forest Service and the BLM are required to 
manage the lands under their jurisdictions in compliance with the 
statutory mandates of their organic statutes. Since the 2012 rule, the 
courts have provided additional guidance on those mandates. This final 
rule recognizes the courts' guidance as discussed in the Consideration 
of Impacts under Section 4(b)(2) of the Act. 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 encourages land managers 
to consider implementation of active forest management, utilizing 
``ecological forestry'' practices, to restore natural ecological 
processes where they have been disrupted or suppressed (e.g., natural 
fire regimes). In this rule we continue to encourage these practices as 
well as recognizing the statutory requirements for providing sustained 
yield timber harvest on O&C lands and multiple use management on Forest 
Service matrix lands.

[[Page 4830]]

    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 (USDI 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.
    In the 2012 critical habitat rule, we repeatedly reference the need 
and appropriateness for 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.
    (b) Commenters requested the exclusion of burned areas to allow 
reforestation and fuels treatments to occur.
    Our Response: To the extent the commenters are suggesting that 
burned areas do not fit within the definition of critical habitat, 
those determinations are not contemplated by this rulemaking.
    (c) Commenters asserted that ``habitat capable'' lands do not meet 
the definition of critical habitat.
    Our Response: To the extent the commenters are suggesting that 
habitat capable lands do not fit within the definition of critical 
habitat, those determinations are not contemplated by this rulemaking.
    Comment (28): Commenters requested that we exclude areas of less 
than 3,000 contiguous acres because areas this small cannot support 
northern spotted owls.
    Our Response: To the extent the commenters are suggesting that 
areas of less than 3,000 contiguous areas do not fit within the 
definition of critical habitat, we decline to address those comments as 
outside the scope of this rulemaking.
    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 have excluded the critical habitat within the 
White Pass ski area as part of this critical habitat determination. See 
Exclusion of the White Pass Ski Area.
    Comment (30): Certain Tribes requested that Federal lands within 5 
miles 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 recognizes in the critical habitat rule 
the need to actively manage forests, particularly in the drier 
provinces, to increase their resiliency to wildfires, including 
reducing ladder fuels, uneven age management, and prescribed burning. 
This recognition includes the forests that are within 5 miles of Indian 
lands. Roads are not considered critical habitat, and thus the 
designation should not hinder road maintenance anywhere, including 
access across Federal lands. Because the critical habitat designation 
does not preclude active management or road maintenance of the lands 
adjacent to Indian lands, we do not find a basis for exclusion of 
additional Federal lands adjacent to Indian land.
    Comment (31): Commenters requested 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.
    Our Response: To the extent that Adaptive Management Areas and 
Experimental Forests are included within the exclusions discussed on 
BLM and Forest Service lands as part of this rule, they are excluded 
from the critical habitat designation. To the extent they are not 
within the excluded portion of critical habitat discussed in this rule, 
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 that 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.
    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 
species.
    Our Response: The barred owl poses a tremendous challenge to the 
future of the northern spotted owl. The barred owl impact on spotted 
owls is extremely significant. Although the northern spotted owl 
Recovery Plan identified two primary threats to spotted owls--habitat 
loss and competition from barred owls--and did not recognize either as 
preeminent, we now have further research and analysis to determine that 
the aggressive and invasive barred owl is the primary threat to the 
northern spotted owl. In fact, the recent 12-Month Finding for the 
northern spotted owl (85 FR 81144; December 15, 2020) determined that 
an uplisting from threatened to endangered was warranted but precluded 
by higher priorities. Id. A recent published demographic study for the 
northern spotted owl (Dugger et al. 2016, entire) found that the 
nonnative barred owl has the largest negative impact on the northern 
spotted owl through competition for resources. Based on this 
recognition, the Service is currently developing a barred owl 
management strategy to help reduce the effect of barred owls on 
northern spotted owls.

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

[[Page 4831]]

    (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).
    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. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Designation also does not allow the government 
or public to access private lands, nor does designation require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the Federal agency would be required to consult 
with the Service under section 7(a)(2) of the Act. However, even if the 
Service were to conclude that the proposed activity would result in 
destruction or adverse modification of the critical habitat, the 
Federal action agency and the landowner are not required to abandon the 
proposed activity, or to restore or recover the species; instead, they 
must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known 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 occupied areas, 
we focus on the specific features that are essential to support the 
life-history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, prey, vegetation, 
symbiotic species, or other features. A feature may be a single habitat 
characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. When designating critical habitat, the Secretary will first 
evaluate areas occupied by the species. The Secretary will consider 
unoccupied areas to be essential only 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. 
This rule does not revisit that determination, and the comments raised 
as to whether certain habitats did or did not fit the definition of 
critical habitat are outside the scope of this rulemaking. Rather, the 
purpose of this rulemaking is to apply the requirements of section 
4(b)(2) to the determinations discussed in the 2012 rule to determine 
if the benefits of exclusions of particular areas outweigh the benefits 
of inclusion of those particular areas. Because we have not concluded, 
based on the best scientific and commercial data available, that these 
exclusions will result in extinction of the species, we are finalizing 
the exclusions in this rule.

Final Revised Critical Habitat Designation

Changes From the Proposed Rule

    In our proposed rule, we proposed excluding those acres managed by 
the BLM under the O&C Act as Harvest Land Base pursuant to BLM's 2016 
RMPs, or approximately 204,797 acres (82,809 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. With this final rule, we are 
excluding (1) all O&C lands, whether managed by the BLM or USFS 
(approximately 1,391,714 acres); (2) Forest Service ``matrix lands'' 
addressed in the NWFP and not already managed under the O&C Act 
(approximately 2,047,929 acres); (3) lands managed under the 2016 RMPs 
as Harvest Land Base, though not under the O&C Act (referred to as 
``matrix'' prior to the 2016 RMPs) (approximately 12,046 acres); (4) 
northern spotted owl critical habitat lands within the Forest Service 
Special Use Permit for the White Pass Ski Area (approximately 211 
acres); and (5) additional Tribal lands (approximately 20,177 acres).
    Consistent with the 2012 rule, 6,105,279 ac (2,470,719 ha) are now 
identified as critical habitat in 11 units and 60 subunits as meeting 
the definition of critical habitat for the northern spotted owl. The 11 
units we have identified as critical habitat 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

[[Page 4832]]

East, and (11) Interior California Coast Ranges. All of the critical 
habitat units and subunits identified were occupied at the time of 
listing; however, some units may include some smaller areas that were 
not known to be occupied at the time of listing but have been 
determined to be essential to the conservation of the species. Land 
ownership of the designated critical habitat includes Federal and State 
lands. No Indian lands or private lands are included in the critical 
habitat designation. The approximate area of each 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 Subunit by This Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               2012 critical habitat   Areas excluded in acres   Final critical habitat
                   Subunit                      in acres (hectares)           (hectares)          in acres (hectares)             Excluded lands
--------------------------------------------------------------------------------------------------------------------------------------------------------
ECN 1.......................................         101,656 (41,139)           22,643 (9,163)           79,013 (31976)  USFS Matrix.
ECN 2.......................................          60,087 (24,316)           17,475 (7,072)           42,612 (17244)  USFS Matrix.
ECN 3.......................................        301,220 (121,899)         108,367 (43,855)          192,853 (78045)  USFS Matrix.
ECN 4.......................................         223,282 (90,359)            8,031 (3,250)          215,251 (87109)  USFS Matrix.
ECN 5.......................................         201,140 (81,398)          83,107 (33,632)          118,033 (47766)  USFS Matrix.
ECN 6.......................................          81,842 (33,120)          47,896 (19,383)           33,946 (13738)  USFS Matrix.
ECN 7.......................................         139,979 (56,647)          96,433 (39,025)           43,546 (17623)  USFS Matrix.
ECN 8.......................................          94,622 (38,292)          33,590 (13,593)           61,033 (24699)  USFS Matrix.
ECN 9.......................................         155,434 (62,902)          59,264 (23,983)           96,170 (38919)  USFS Matrix.
ECS 1.......................................         125,560 (50,812)          68,723 (27,811)           56,837 (23001)  BLM Harvest Land Base, BLM O&C,
                                                                                                                          USFS Matrix.
ECS 2.......................................          66,086 (26,744)           18,209 (7,369)           47,877 (19375)  BLM Harvest Land Base, USFS
                                                                                                                          O&C, BLM O&C, USFS Matrix.
ECS 3.......................................         112,179 (45,397)          33,533 (13,571)           78,646 (31827)  USFS Matrix.
ICC 1.......................................        332,061 (134,380)          51,308 (20,764)         280,753 (113617)  USFS Matrix.
ICC 2.......................................         204,461 (82,742)         107,558 (43,527)           96,903 (39215)  USFS Matrix.
ICC 3.......................................         104,813 (42,416)          39,600 (16,025)           65,214 (26391)  USFS Matrix.
ICC 4.......................................         119,957 (48,545)          47,256 (19,124)           72,701 (29421)  USFS Matrix.
ICC 5.......................................          34,955 (14,146)            6,358 (2,573)           28,597 (11573)  USFS Matrix.
ICC 7.......................................         119,729 (48,453)           20,019 (8,101)           99,710 (40351)  USFS Matrix.
ICC 8.......................................          83,376 (33,741)            7,100 (2,873)           76,276 (30868)  USFS Matrix.
KLE 1.......................................         242,905 (98,300)         130,233 (52,703)          112,672 (45597)  BLM Harvest Land Base, Indian,
                                                                                                                          USFS O&C, BLM O&C, USFS
                                                                                                                          Matrix.
KLE 2.......................................         100,454 (40,652)          96,490 (39,048)            3,964 (1,604)  BLM Harvest Land Base, Indian,
                                                                                                                          USFS O&C, BLM O&C, USFS
                                                                                                                          Matrix.
KLE 3.......................................         112,799 (45,648)         105,262 (42,598)            7,537 (3,050)  BLM Harvest Land Base, USFS
                                                                                                                          O&C, BLM O&C, USFS Matrix.
KLE 4.......................................        256,079 (103,631)         103,077 (41,714)         153,002 (61,918)  BLM Harvest Land Base, USFS
                                                                                                                          O&C, BLM O&C, USFS Matrix.
KLE 5.......................................          38,252 (15,480)          36,567 (14,798)              1,684 (682)  BLM Harvest Land Base, BLM O&C,
                                                                                                                          USFS Matrix.
KLE 6.......................................         167,849 (67,926)          56,161 (22,728)         111,688 (45,198)  BLM Harvest Land Base, BLM O&C,
                                                                                                                          USFS Matrix.
KLE 7.......................................          66,478 (26,903)           22,797 (9,226)          43,681 (17,677)  USFS Matrix.
KLW 1.......................................         147,263 (59,595)         130,290 (52,726)           16,973 (6,869)  BLM Harvest Land Base, Indian,
                                                                                                                          BLM O&C, USFS Matrix.
KLW 2.......................................         149,965 (60,689)         105,256 (42,596)          44,709 (18,093)  BLM Harvest Land Base, BLM O&C,
                                                                                                                          USFS Matrix.
KLW 3.......................................         146,092 (59,121)          37,595 (15,214)         108,498 (43,907)  BLM Harvest Land Base, BLM O&C,
                                                                                                                          USFS Matrix.
KLW 4.......................................         158,835 (64,278)          94,360 (38,186)          64,475 (26,092)  BLM Harvest Land Base, BLM O&C,
                                                                                                                          USFS Matrix.
KLW 5.......................................          31,084 (12,579)            5,475 (2,216)          25,610 (10,364)  BLM Harvest Land Base, USFS
                                                                                                                          Matrix.
KLW 6.......................................         117,541 (47,567)           10,289 (4,164)         107,252 (43,404)  USFS Matrix.
KLW 7.......................................        254,465 (102,978)         168,854 (68,333)          85,610 (34,645)  USFS Matrix.
KLW 8.......................................         114,676 (46,408)          39,225 (15,874)          75,452 (30,534)  USFS Matrix.
KLW 9.......................................         149,641 (60,558)                735 (297)         148,906 (60,260)  USFS Matrix.
NCO 4.......................................         124,219 (50,270)              2,244 (908)         121,975 (49,362)  BLM Harvest Land Base, BLM O&C.
NCO 5.......................................         198,463 (80,315)          57,326 (23,199)         141,137 (57,116)  BLM Harvest Land Base, USFS
                                                                                                                          O&C, BLM O&C.
ORC 1.......................................         110,658 (44,782)           23,538 (9,526)          87,120 (35,256)  BLM Harvest Land Base, USFS
                                                                                                                          O&C, BLM O&C, USFS Matrix.
ORC 2.......................................        261,403 (105,786)          83,330 (33,723)         178,073 (72,064)  BLM Harvest Land Base, Indian,
                                                                                                                          USFS O&C, BLM O&C, USFS
                                                                                                                          Matrix.
ORC 3.......................................         204,185 (82,631)         130,177 (52,681)          74,008 (29,950)  BLM Harvest Land Base, Indian,
                                                                                                                          USFS O&C, BLM O&C, USFS
                                                                                                                          Matrix.
ORC 4.......................................            8,263 (3,344)            8,202 (3,319)                  61 (25)  BLM O&C.
ORC 5.......................................         176,402 (71,387)         111,009 (44,924)          65,392 (26,463)  BLM Harvest Land Base, USFS
                                                                                                                          O&C, BLM O&C, USFS Matrix.
ORC 6.......................................          81,912 (33,149)          78,257 (31,669)            3,655 (1,479)  BLM Harvest Land Base, Indian,
                                                                                                                          BLM O&C.
RDC 1.......................................          60,766 (24,591)              1,459 (590)          59,307 (24,001)  USFS Matrix.
WCC 1.......................................         225,272 (91,164)           12,704 (5,141)         212,568 (86,023)  USFS Matrix.
WCC 2.......................................        279,420 (113,077)          88,765 (35,922)         190,655 (77,156)  USFS Matrix, White Pass Ski
                                                                                                                          Area.

[[Page 4833]]

 
WCC 3.......................................        394,462 (159,633)         122,196 (49,451)        272,266 (110,182)  USFS Matrix.
WCN 1.......................................        438,247 (177,352)            4,816 (1,949)        433,431 (175,403)  USFS Matrix.
WCN 2.......................................         103,899 (42,046)                318 (129)         103,581 (41,918)  USFS Matrix.
WCS 1.......................................          92,586 (37,468)          48,904 (19,791)          43,682 (17,677)  BLM Harvest Land Base, USFS
                                                                                                                          O&C, BLM O&C, USFS Matrix.
WCS 2.......................................         151,418 (61,277)         115,898 (46,902)          35,520 (14,374)  BLM Harvest Land Base, USFS
                                                                                                                          O&C, BLM O&C, USFS Matrix.
WCS 3.......................................        318,382 (128,845)          99,805 (40,390)         218,577 (88,455)  BLM Harvest Land Base, BLM O&C,
                                                                                                                          USFS Matrix.
WCS 4.......................................        379,023 (153,385)         172,930 (69,982)         206,093 (83,403)  BLM Harvest Land Base, USFS
                                                                                                                          O&C, BLM O&C, USFS Matrix.
WCS 5.......................................        356,718 (144,359)         194,057 (78,532)         162,661 (65,827)  BLM Harvest Land Base, USFS
                                                                                                                          O&C, BLM O&C, USFS Matrix.
WCS 6.......................................          99,516 (40,273)          96,994 (39,252)            2,522 (1,021)  BLM Harvest Land Base, USFS
                                                                                                                          O&C, BLM O&C, USFS Matrix.
--------------------------------------------------------------------------------------------------------------------------------------------------------

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 taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat 
designation. The Secretary may exclude an 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 designation, 
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. 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.
    The first sentence in section 4(b)(2) of the Act requires that we 
take into consideration the economic, national security, or other 
relevant impacts of designating any particular area as critical 
habitat. We took into consideration the economic and national security 
impacts in the 2012 critical habitat designation (77 FR 71876, December 
4, 2012; pp. 71944-71947). We are revising the 2012 critical habitat 
designation here based on a reconsideration of those economic impacts 
combined with a consideration of other relevant factors that were not 
discussed in the 2012 rule as well as those raised in the public 
comment period.

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 a species would receive due to the protection of that 
area from potential destruction or adverse modification as a result of 
actions with a Federal nexus (that is, a discretionary activity or 
program authorized, funded, or carried out in whole or in part by a 
Federal agency), the educational benefits of mapping the critical 
habitat of the listed species, and any benefits that may result from a 
designation due to State or Federal laws that may apply to critical 
habitat. 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 importance 
of habitat protection. Another benefit, where a Federal nexus exists, 
is increased habitat protection for northern spotted owls through the 
Act's section 7(a)(2) mandate that Federal agencies ensure that any 
discretionary action they authorize, fund, or carry out is not likely 
to result in the destruction or adverse modification of critical 
habitat. Although regardless of a critical habitat determination, 
Federal agencies will still be required to complete section 7 
consultation for the northern spotted owl where the species is present, 
we acknowledge that there could be adverse impacts to the habitat if 
the species is not present at the time of the consultation. Because the 
FWS determined that all 2012 designated critical habitat was 
``occupied,'' surveys will occur prior to authorizing any project on 
Federal lands to determine if the species is present. Thus, while we 
recognize that additional section 7 consultation based on the 
destruction or adverse modification standard is a benefit, completion 
of section 7 consultation based on the jeopardy standard only will not 
result in the extinction of the species. Finally, there may be a 
benefit from a critical habitat designation for certain sources of 
third-party funding for habitat conservation projects.
    When considering the benefits of exclusion, we considered whether 
the proposed critical habitat designation conflicts with any statutory 
requirements or nondiscretionary mandates for managing any Federal 
lands within the critical habitat designation. Second, we considered 
whether lessening any of the regulatory burdens that may occur due to 
section 7 consultation for habitat modification may provide other 
environmental benefits such as lessening the risk of catastrophic 
wildfire. Third, we place great value on our relationships with Tribal, 
State, and local governments, so we affirmatively consider their 
expertise in protecting their local tax base, and the customs and 
cultures of those within their jurisdiction. Recognizing the expertise 
and comments from our governmental partners is critical in gaining 
support for the protection of the northern spotted owl and other listed 
species.
    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. The Secretary may 
assign the weight given to any of the benefits of inclusion as critical 
habitat as well as the benefits of exclusion from a critical habitat 
designation. If our analysis indicates that the benefits of exclusion 
outweigh the benefits of inclusion, we then determine whether exclusion 
would result in extinction of the species. If

[[Page 4834]]

exclusion of an area from critical habitat designation will result in 
extinction of the species, we will not exclude it from the critical 
habitat designation under section 4(b)(2) of the Act. The final 
decision on whether to exclude any areas under section 4(b)(2) will be 
based on the best scientific and commercial data available at the time 
of the final designation.

Exclusions

    Based on a reanalysis of the 2012 designation, as well as 
additional public comments we received, we evaluated whether the areas 
proposed for exclusion or additional areas suggested 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 
certain lands from the final designation outweigh the benefits of 
including those lands as critical habitat; therefore, the Secretary 
exercises his discretion to exclude these lands from the final 
designation. Accordingly, we exclude the areas identified below in 
Table 8 Addendum under section 4(b)(2) of the Act from the critical 
habitat designation for the northern spotted owl. (Note that the Table 
8 Addendum is an addendum to Table 8 in the 2012 final critical habitat 
rule and displays the areas we are further excluding from the December 
4, 2012, final critical habitat designation (77 FR 71876, pp. 71948-
71949).) The Table 8 Addendum 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.

                  Table 8 Addendum--Additional Lands Excluded From the Designation of Critical Habitat Under Section 4(b)(2) of the Act
--------------------------------------------------------------------------------------------------------------------------------------------------------
          Type of agreement               Critical habitat unit                 State                Land owner/agency         Acres         Hectares
--------------------------------------------------------------------------------------------------------------------------------------------------------
O&C Lands, NWFP Matrix..............  ECN.........................  OR..........................  USFS..................         476,806         192,957
                                      ECS.........................  OR..........................  BLM, USFS.............         120,465          48,751
                                      ICC.........................  OR..........................  USFS..................         279,198         112,987
                                      KLE.........................  OR..........................  BLM, USFS.............        539,8003         218,450
                                      KLW.........................  OR..........................  BLM, USFS.............         588,258         238,059
                                      NCO.........................  OR..........................  BLM, USFS.............          59,570          24,107
                                      ORC.........................  ............................  BLM, USFS.............         428,939         173,585
                                      RDC.........................  ............................  USFS..................           1,459             590
                                      WCC.........................  ............................  USFS..................         223,454          90,428
                                      WCN.........................  ............................  USFS..................           5,134           2,078
                                      WCS.........................  ............................  BLM, USFS.............         728,588         294,849
Indian lands........................  ORC.........................  OR..........................  CTCLUSI \1\...........           5,575           2,256
                                      KLE.........................  OR..........................  CCBUTI \2\............          10,783           4,364
                                      KLW.........................  OR..........................  CCBUTI................           3,821           1,546
White Pass Ski Area.................  WCC.........................  WA..........................  USFS..................             211              85
                                                                                                                         -------------------------------
    Total additional lands excluded   ............................  ............................  ......................       3,472,064       1,405,094
     under section 4(b)(2) of the
     Act.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ CTCLUSI is the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians.
\2\ CCBUTI is the Cow Creek Band of Umpqua Tribe of Indians.

    These exclusions are based in part on new information that has 
become available since the December 4, 2012, critical habitat 
designation for the northern spotted owl (77 FR 71876), including the 
Western Oregon Tribal Fairness Act (Pub. L. 115-103), court decisions 
regarding the future management of O&C lands, and public comments. The 
exclusions also reflect the new conclusions by the Secretary as to the 
weight to be accorded to various benefits. In the paragraphs below, we 
provide a detailed analysis of our consideration of the lands excluded 
under section 4(b)(2) of the Act.

Consideration of Economic Impacts

    Although the economic impacts analysis showed economic impacts in 
2012, we did not exclude areas from our December 4, 2012, final 
critical habitat designation (77 FR 71876) based on those economic 
impacts. Refer to the December 4, 2012, rule (77 FR 71876) for a 
description of the purpose and process of evaluating the economic 
impacts that may result from a designation of critical habitat. 
However, we have reconsidered those incremental economic impacts in 
light of our commitment to our Tribal, State, and local government 
partners and give weight to the needs of the local tax and economic 
base as well as the custom and culture of the citizens most impacted by 
a critical habitat designation in addition to updated information that 
suggests that economic benefits could accrue. We have reevaluated the 
relative impact of even a ``relatively small'' economic loss for rural 
communities already faced with impacts including the initial listing of 
the species. As noted in our 2012 analysis, the direct incremental 
effects from the critical habitat designation included: (1) An 
increased workload for action agencies, the Service, and third-party 
applicants to conduct reinitiated consultations for ongoing actions in 
newly designated critical habitat (areas proposed for designation that 
were not already included within the then-extant designation); (2) the 
cost to action agencies of completing an analysis of the effects to 
critical habitat for discretionary new projects occurring in occupied 
areas of designated critical habitat; and (3) potential project 
alterations in critical habitat areas that are currently unoccupied by 
spotted owls, since the critical habitat designation would create a 
potential section 7 obligation based on the adverse modification 
standard that might not otherwise exist.
    In response to the proposed rule, we received submissions of 
additional economic information from several commenters, including 
Counties, as well as from the American Forest Resource Council. We 
reviewed this information carefully, and we also conferred with IEc, 
which conducted the economic analysis in the 2012 designation (IEc 
2012), regarding

[[Page 4835]]

critiques in the additional materials submitted regarding the 2012 
economic analysis. We incorporated our review and consideration of this 
information in our response to comments above (See Comments 20-23).
    Based on this review, we have concluded that completing a new 
economic analysis for these additional critical habitat exclusions is 
unnecessary. For further information regarding the 2012 analysis, see 
the December 4, 2012, final rule for a summary of the final economic 
analysis and our consideration of economic impacts (77 FR 71876, pp. 
71878, 71945-71947, 72046-72048). Both the 2012 economic analysis as 
well as the additional information we received showed that there is an 
incremental economic impact to the critical habitat designation. There 
is no minimum statutory economic impact included in the section 4(b)(2) 
regulation or the legislative history against which the Secretary is 
directed to consider in his exclusion analysis. Thus, the Secretary is 
using the wide discretion under the ESA to weigh these economic costs 
in favor of exclusion. We reviewed the 2012 final economic analysis 
(IEc 2012) as well as comments and additional information received on 
the proposed rule. Both the original 2012 economic analysis and the 
additional information presented show that there is some monetized 
economic cost savings based upon the exclusions undertaken in this 
final rule. However, the original 2012 economic analysis did not 
provide quantified cost estimates related to consultation and potential 
project modifications of ``linear projects,'' including power lines and 
natural gas pipe lines. The 2012 economic analysis could not have 
foreseen the recent changes in the electricity generating industry that 
moved the industry from retiring coal powered plants to natural gas 
plants. Because of such changes, the unquantified effects of the 2012 
economic analysis takes on more importance in this action, albeit still 
unquantified. We have weighed those economic costs, in combination with 
the other relevant factors discussed below to determine that the 
balance weighs in favor of excluding additional habitat.

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. We have 
determined not to exclude any additional areas on the basis of impacts 
on national security.

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether there are 
permitted conservation plans such as habitat conservation plans (HCPs), 
safe harbor agreements (SHAs), or candidate conservation agreements 
with assurances (CCAAs) covering species in the area, or whether 
designation of, or exclusion from, critical habitat would encourage any 
non-permitted conservation agreements and partnerships. In addition, we 
consider any Tribal forest management plans (FMPs) and partnerships and 
consider the government-to-government relationship of the United States 
with Tribes. We also considered the requests from the local governments 
directly impacted by the northern spotted owl critical habitat 
designation based upon our recognition that County Commissions are 
elected representatives of their constituents and have knowledge and 
expertise in the areas related to the economic well-being, employment, 
tax base, and custom and cultures of the citizens within their 
jurisdictions. Because we recognize their duty as locally elected 
officials to represent the best interests of their citizens and we take 
their concerns seriously, we acknowledge the impacts that the northern 
spotted owl listing and critical habitat designation has had on their 
jurisdictions as part of our balancing of other relevant impacts.

Exclusion of Indian Lands

    Several Executive Orders, Secretarial Orders, and policies are 
relevant when 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;, 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 give great weight to Tribal concerns in analyzing 
the benefits of exclusion.
    In this final designation, the Secretary has exercised his 
discretion under section 4(b)(2) of the Act to exclude from this 
critical habitat designation 14,605 acres (5,910 hectares) of Indian 
lands (in this case, lands held in trust) for Cow Creek Band of Umpqua 
Tribe of Indians (CCBUTI) and 5,575 acres (2,256 hectares) of land for 
Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians 
(CTCLUSI). See Table 1 for the Unit and Subunit location 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 final rule because we found that we could 
achieve the conservation of the northern spotted owl with limiting the 
designation to other lands. However, in 2018, Congress passed and the 
President signed the Western Oregon Tribal Fairness Act (Pub. L. 115-
103). This act mandated that certain lands managed by BLM be taken into 
trust by the United States for the benefit of the CCBUTI and the 
CTCLUSI. In January 2020, BLM released its decision record (BLM 2020) 
transferring 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, 20,179 acres (8,166 hectares) are located within 
designated critical habitat for the northern spotted owl. We considered 
this new

[[Page 4836]]

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

    The CCBUTI and CTCLUSI Indian lands includes areas occupied by the 
northern spotted owl. Therefore, even without designating these lands, 
Federal agencies would need to consult for jeopardy if they are 
considering actions that may affect the species. This would limit the 
extent to which designating these areas will incrementally benefit the 
species through consultation under section 7. Nevertheless, designating 
these areas will have other benefits.
    One of the benefits of the designation of critical habitat on 
Tribal land is that it may affect the implementation of Federal laws, 
such as the Clean Water Act. These laws require analysis of the 
potential environmental effects of proposed projects via ESA section 7 
consultation, and completion of that consultation on critical habitat 
may signal the presence of sensitive habitat that could otherwise be 
missed in the review process for these other environmental laws.
    Additionally, there is an educational benefit to the inclusion of 
land as critical habitat. A critical habitat designation can inform 
Tribal members and others about the potential conservation value of the 
area for the species.
    Another possible benefit is 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. Tribes often seek additional 
sources of funding in order to conduct wildlife-related conservation 
activities. Therefore, having an area designated as critical habitat 
could improve the chances of receiving funding for northern spotted owl 
habitat-related projects.
    A final possible benefit is these lands may contribute to the 
recovery of the species by providing additional areas of habitat for 
breeding, feeding, or connectivity between active home territories.

Benefits of Exclusion--Indian Lands

    The benefits of excluding Indian lands from designated critical 
habitat are significant. We have determined that the significant 
benefits that would be realized by forgoing the designation of critical 
habitat on these areas include: (1) Our deference to the 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; 
and (2) the continuance and strengthening of our effective working 
relationships with the Tribes to promote the conservation of the 
northern spotted owl and its habitat.
    We have determined that the CCBUTI and CTCLUSI should be the 
governmental entities to manage and promote the conservation of the 
northern spotted owl on their trust land as 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).
    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 damages and loss of forest values from 
wildfire, insects, and disease and other damaging 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.
    Finally, both Tribes specifically requested these exclusions in 
their comment letters on the proposed rule and we evaluated these 
exclusions in light of their requests. We place a high value on our 
relationship with the Tribes and recognize their expertise in areas 
related to the representation of their Tribal members. Because we 
recognize our government-to-government relationship, we seriously 
consider their requests as part of our balancing of other relevant 
impacts as required under ESA section 4(b)(2). 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 educational awareness, the potential additional grant 
funding, and the completion of section 7 based upon the implementation 
of other laws and regulations. While there remain some benefits to 
these regulatory intersections, 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 
significant. Consistent with principles of self-determination and the 
unique Federal-Tribal relationship, we conclude that requests from 
Tribal governments are important to consider and weigh. We view this as 
a substantial benefit since 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 also minimized. 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 species.
    In summary, the benefits of these Indian lands as critical habitat 
are low, and are limited to additional regulatory processes and 
educational benefits that are insignificant--particularly since the 
northern spotted owl listing and past critical habitat needs have been 
so well publicized and are known. Additionally, the Tribes have 
committed to managing these lands to benefit (which include the 
potential recovery of) the northern spotted owl making the additional 
benefit of designating these lands as critical habitat for recovery 
purposes also minimal. 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. 
We find that the benefits of excluding these

[[Page 4837]]

areas from critical habitat designation outweigh the benefits of 
including these areas as critical habitat.

Exclusion Will Not Result in Extinction of the Species--Indian Lands

    We do not conclude that the exclusion of these Indian lands will 
result in extinction of the species. First, 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 would require evaluation under the jeopardy standard of 
section 7 of the Act, even absent the designation of critical habitat, 
and thus will provide the information and means to protect the species 
against extinction. Second, the Tribes are committed to protecting and 
managing these lands and species found on these 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. Accordingly, we are excluding the 
20,179 acres (8,166 hectares) of Indian lands under section 4(b)(2) of 
the Act because the benefits of exclusion outweigh the benefits of 
inclusion and exclusion will not cause the extinction of the species.

Exclusion of the White Pass Ski Area

    The White Pass Ski Area occupies approximately 1,200 acres of 
Forest Service lands (211 acres of which are within the 2012 northern 
spotted owl critical habitat designation) in the Okanogan/Wenatchee and 
Gifford Pinchot National Forests. The Ski Area contains ski lifts and 
runs and provides recreational opportunities for approximately 130,076 
visitors each year benefitting a county with a population of just over 
75,000. Although the 2012 critical habitat rule states that ``meadows 
and grasslands . . . and manmade structures and the land on which they 
are located'' are not critical habitat, because the part of the area 
encompassed by the Ski Area's special use permit with the Forest 
Service is within the critical habitat boundaries, the Ski Area owners 
and Lewis County have raised concerns as to the Ski Area's future vis-
a-vis the northern spotted owl critical habitat designation. Lewis 
County, Washington, is particularly concerned given the Ski Area's 
large and positive economic impact for the County.

Benefits of Inclusion--White Pass Ski Area

    As noted above, one benefit of inclusion of Federal lands in a 
critical habitat designation is that Federal agencies are required to 
consult on whether their activity would destroy or adversely modify 
critical habitat. In this case, we believe that benefit based both on 
the current habitat needs and recovery needs is small considering the 
amount of acreage concerned (211 acres) and the remaining requirement 
for section 7 consultation should owls be located within the area 
impacted by future Forest Service actions regarding the Ski Area. An 
additional benefit is public education and awareness of the presence of 
northern spotted owls and their habitat and range.

Benefits of Exclusion--White Pass Ski Area

    Lewis County, Washington, noted that the ski area provides 
significant economic benefit to the County. Although quantification of 
these economic impacts may be difficult, minimum estimations based on 
the number of annual visitors to the Ski Area; the cost of lift 
tickets, equipment rentals, and group and private lessons at the Ski 
Area; and related economic benefits from this influx of visitors to the 
County are likely in the magnitude of tens of millions of dollars 
annually. The Secretary exercises his discretion to give weight to the 
economic importance of this continued use of the National Forest lands. 
This weight is based on our recognition that County Commissioners are 
elected representatives of their constituents and have knowledge and 
expertise in the areas related to the economic well-being, employment, 
tax base, and custom and cultures of the citizens within their 
jurisdictions. Because we recognize their duty as locally elected 
officials to represent the best interests of their citizens and we take 
their concerns seriously, we acknowledge the impacts that the northern 
spotted owl listing and critical habitat designation has had on their 
communities as part of our balancing of other relevant impacts. Thus, 
we conclude that the benefits of excluding the White Pass Ski Area from 
designated critical habitat are significant.

Benefits of Exclusion Outweigh the Benefits of Inclusion--White Pass 
Ski Area

    Because we conclude that the benefits of exclusion are significant, 
and the benefits of inclusion are small, we conclude that the benefits 
of exclusion outweigh the benefits of inclusion of 211 acres of 
critical habitat in the Ski Areas Special Use Permit. With regard to 
the educational benefits of inclusion as critical habitat, because the 
spotted owl has been listed as a threatened species since 1990 and the 
significant amount of local and national discussion and debate that has 
occurred since that time, the public is very aware of the species' 
range and habitat needs; thus, any additional educational benefits of 
designated critical habitat are limited. With regard to recovery, the 
benefits of inclusion are also small because of the small size of the 
acreage and because section 7 consultation will still be required for 
all discretionary activities if the owl is present.
    Additionally, 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 discretionary Federal 
action or permitting occurs, the known presence of northern spotted 
owls would require evaluation under the jeopardy standard of section 7 
of the Act, even absent the designation of critical habitat. Because 
the separate requirement of an evaluation under the jeopardy standard 
limits the benefits of including the area in the designation of 
critical habitat, the benefits of exclusion outweigh the benefits of 
inclusion.
Exclusion of the Ski Area Will Not Result in Extinction of the Species
    We do not conclude that the exclusion of 211 acres within the White 
Pass Ski Area will result in extinction of the species because 
exclusion of this area is so small that exclusion will have minimal 
impacts on the conservation of the owl. First, because of the 
significant development of ski lifts (manmade structures) and the 
removal of trees for ski runs, the conservation benefit of this land is 
very low. Second, the Forest Service will still be required to consult 
on whether renewal of the special use permit or changes to the permit 
will jeopardize the continued existence of the species if northern 
spotted owls are found to be present in the Ski Area Special Use Permit 
boundaries. Ensuring that the proposed action or permitting does not 
jeopardize the existence of the species will further ensure that 
exclusion will not cause extinction of the species. Therefore, we are 
excluding this area from the designation of critical habitat.

Exclusion of Additional Federal Lands

    We recognize that, under our 2016 policy regarding implementation 
of section 4(b)(2) (81 FR 7226, February 11,

[[Page 4838]]

2016), we generally focus our exclusions on non-Federal lands, as the 
2016 policy opined that the benefits of designating Federal lands as 
critical habitat are typically greater than the benefits of excluding 
Federal lands. This policy was based on Congress's declaration 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.'' (Section 
2(c)(1)). Additionally, Congress requires that 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. 
However, for the reasons set forth below, we can comply with these 
mandates while still determining that the benefits of exclusion of 
critical habitat outweigh the benefit of including these areas as 
critical habitat.
    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. 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 
weighing the benefits of inclusion against the benefits of exclusion, 
we considered the following general principles. First, we gave 
considerable weight to the statute's governing the use and management 
of the O&C lands, which specifies that the primary purpose of those 
lands is to produce timber on a sustained yield basis.
    Second, even if the exclusion of certain Federal lands occurs, 
under section 7 of the Act, Federal agencies cannot fund, authorize, or 
carry out any discretionary activities that result in jeopardy to a 
listed species. This requirement applies regardless of the existence of 
designated critical habitat. Additionally, the northern spotted owl 
will be protected from ``take'' under section 9 of the ESA. Thus, the 
species will be protected regardless of the critical habitat exclusions 
discussed in the rule, and the benefits of inclusion are therefore 
small. The only direct consequence of critical habitat designation is 
to require Federal agencies to ensure that any action they fund, 
authorize, or carry out does not destroy or adversely modify designated 
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 with a Federal agency, 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. These costs may be minimal, however, if the species 
occupies the area so that section 7 consultation would occur regardless 
of whether the habitat is designated as critical habitat. Nevertheless, 
although our original 2012 economic analysis found that the actual 
administrative cost with a critical habitat designation is small, 
avoidance of that specific cost is not the only measure of benefits of 
excluding an area from a critical habitat designation. More recent 
information about the transition of the electricity power sector and 
well as the potential administrative costs consultation including the 
underlying analytic requirements lends more compelling weight to the 
previously unquantified effects noted in the 2012 analysis. We have 
also considered the great benefits of excluding certain federally owned 
areas from critical habitat, and we find that these significant 
benefits greatly tip the balance in favor of exclusion.
    For example, the additional requirement for completing section 7 
consultation and the underlying analytic requirements constitutes a 
regulatory hurdle for Federal agencies in completing their duties under 
their organic statutes. These costs do not account for the economic 
costs associated with potential delay or modification of projects. 
Lessening one of the regulatory hurdles could lead to increased timber 
production and thereby benefit local counties and communities by 
supplying jobs and county revenues for schools and roads, protecting 
the local tax base, and protecting the social fabric and customs and 
culture of the citizens of the county. These benefits outweigh the 
benefits of including the areas in the critical habitat designation 
because section 7 consultation will still be completed under the 
jeopardy standard even if the areas are excluded from designation. 
Moreover, such section 7 consultations based on the jeopardy standard 
will ensure that excluding the areas from the designation will not 
result in extinction of the species.
Oregon and California Lands (O&C Lands)
    In this final designation, the Secretary has exercised his 
discretion under section 4(b)(2) of the Act to exclude from this 
critical habitat designation 1,373,693 acres (555,913 ha) of lands that 
were reserved to the Federal Government under the Chamberlin-Ferris Act 
of 1916 (39 Stat. 218) (O&C lands). See Table 1 for the Unit and 
Subunit locations of these exclusions.
    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 (O&C Act; Pub. L. 
75-405) 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. Most of 
these lands (82 percent) are administered by BLM (FWS 2019, p. 1). The 
remaining lands are administered by the U.S. Forest Service. The 
opening statement of the O&C Act provides that these lands are to 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.'' 43 U.S.C. 2601.
    The counties where the O&C lands are located participate in a 
revenue-sharing program with the Federal Government wherein the 
counties receive 50% of the revenues based on commercial receipts 
(e.g., income from commercial timber harvest) generated on these 
Federal lands. 43 U.S.C. 2605(a). When timber production on these lands 
was severely curtailed by listing of the northern spotted owl among 
other things, Congress in 1993 attempted to establish certain safety-
net payments to the affected counties, and in 2000 passed the Secure 
Rural Schools and Community Self Determination Act, Public Law 106-393, 
16 U.S.C. 500 (SRS) to, among other things, extend the previously 
established safety-net payments to try to make up for the economic 
devastation of the loss of timber receipts to the impacted counties. 
However, because none of the safety-net provisions, including the SRS, 
authorizes a permanent fund, the local governments that commented on 
this rulemaking do not view it as an equal replacement to the loss 
their schools and roads suffered from the loss in their timber receipts 
from the O&C lands.

[[Page 4839]]

    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, and 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.
    An initial Recovery Plan for the owl was completed in 2008 (73 FR 
29471, May 21, 2008). 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 
[Northwest Forest Plan] 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). On December 4, 2012, the 
Service published in the Federal Register (77 FR 71876) a final rule 
revising the northern spotted owl critical habitat designation, and in 
2016, BLM revised its RMPs for western Oregon, resulting in two 
separate plans (BLM 2016a, 2016b). 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 land and use allocations in the BLM RMPs were challenged in the 
Federal District Court for the District of Columbia. The Court 
determined that the O&C Act ``plainly requires that timber grown on O&C 
land be `sold, cut, and removed in conformity with the princip[le] of 
sustained yield.''' American Forest Resource Council v. Hammond, 422 F. 
Supp. 3d 184, 189 (D.D.C. 2019) (quoting 43 U.S.C. 2610). The ruling 
also calls into question aspects of the legal analysis in the 2012 
critical habitat designation that it failed to recognize the statutory 
requirement for the management of the O&C lands.
    Finally, while the proposed rule only included the Harvest Land 
Base portion of the O&C lands for exclusion, we conclude that all O&C 
lands should be excluded. First, commenters had requested exclusion of 
all O&C lands as part of the public comments on the proposed rule, 
illustrating that the public was on fair notice that the exclusions in 
the final rule could be expanded. Second, the O&C Act and its mandate 
for sustained yield timber harvest applies to all O&C lands, not just 
those identified for harvest in the 2016 BLM RMPs. Third, section 
4(b)(2) gives the Secretary very broad discretion in weighing the 
benefits of inclusion with the benefits of exclusion, so long as he 
concludes that the exclusion will not result in extinction of the 
species. The Secretary has exercised that extremely broad discretion in 
this case as explained below. Thus, the exclusion of the O&C lands in 
this case is procedurally and legally supported.
NWFP Matrix Lands
    This rule also excludes approximately 2,077,697 acres (840,814 ha) 
of Forest Service and BLM matrix lands described in the NWFP. On April 
2, 1993, President Clinton convened a Forest Conference in Portland, 
Oregon, to discuss the management on over 24 million acres of Federal 
lands, in light of the listing of the northern spotted owl in 1990. Out 
of that conference and based on an interdisciplinary team effort came 
the Northwest Forest Plan. The plan proceeded from the Forest Service's 
and BLM's statutory authorities as set forth in the Forest Service 
Organic Act, the Multiple-Use Sustained-Yield Act, the Endangered 
Species Act, and the Federal Land Policy and Management Act. These 
statutes grant the Departments of Agriculture and the Interior broad 
discretion to rely upon their expertise to manage the lands under their 
authorities in a manner deemed to best meet the purposes Congress has 
delineated. The purpose of the O&C lands has been discussed in the 
preceding paragraphs. With regard to the Forest Service lands, one of 
the purposes of the National Forest organic statutes is to provide for 
the long-term sustainability of the forests' many natural resources, 
including the species that inhabit them. Another purpose of the Forest 
Service Organic Act was to ``to improve and protect the forest within 
the reservation, . . . securing favorable conditions of water flows, 
and to furnish a continuous supply of timber for the use and 
necessities of citizens of the United States.'' 16 U.S.C. 473.
    Through its utilization of ecosystem management principles, the 
NWFP was designed to balance these mandates more effectively and 
efficiently than previous planning efforts associated with management 
of Federal old-growth forests. Statutes such as the Forest and 
Rangeland Renewable Resources Planning Act, the National Forest 
Management Act, and the Federal Land Policy and Management Act, which 
outline various procedures to follow in Federal public land planning, 
also authorize the employment of principles intrinsic to ecosystem 
management. ESA section 7 consultation was completed on the NWFP and we 
found that implementation of that plan would not result in jeopardy to 
the Northern Spotted Owl. Based on these principles, the Record of 
Decision (ROD) for the NWFP was signed on April 13, 1994. The ROD 
designated seven land allocations, including:

Congressionally Reserved Areas--7,320,600 acres
Late Successional Reserves--7,430,800 acres
Adaptive Management Areas--1,521,800 acres
Managed Late Successional Areas--102,200 acres
Administratively Withdrawn Areas--1,477,100 acres
Riparian Reserves--2,627,500 acres
Matrix lands--3,975,300 acres

    Matrix lands represent just 16% of the Federal land within the 
range of the northern spotted owl. According to the Record of Decision, 
it was to be in the matrix lands where the most timber harvest and 
other silvicultural activities would be conducted.
    Finally, while the proposed rule only included the Harvest Land 
Base portion of the O&C lands for exclusion, we conclude that the NWFP 
matrix lands should also be excluded. First, commenters had requested 
exclusion of all NWFP matrix lands as part of the public comments on 
the proposed rule, illustrating that the public was on fair notice that 
the exclusions in the final rule could be expanded. Second, the NWFP 
matrix lands have previously been designated as multiple use lands, 
including timber harvest thus, including them here does not change the 
character of the prior decisions. Third, makeup and management of these 
lands is similar to the O&C lands. Fourth, section 4(b)(2) gives the 
Secretary very broad discretion in weighing the benefits of inclusion 
with the benefits of exclusion, so long as he does not conclude that 
the exclusion will result in extinction of the species. The Secretary 
has exercised that extremely broad discretion in this case as explained 
below. Thus, the exclusion of the NWFP matrix lands in this case is 
procedurally and legally supported.

[[Page 4840]]

Benefits of Inclusion--O&C and NFWP Matrix Lands

    As discussed above under Consideration of Impacts under Section 
4(b)(2) of the Act, the primary effect of designating any particular 
area as critical habitat is the requirement for Federal agencies to 
consult with the FWS under section 7 of the Act to ensure discretionary 
actions that they carry out, authorize, or fund do not destroy or 
adversely modify designated critical habitat. Thus, a benefit of a 
critical habitat designation on these lands would be any additional 
measures or alternatives required by the FWS as a result of the section 
7 consultation if the proposed activity would otherwise destroy or 
adversely modify critical habitat.
    An additional benefit of including an area as designated critical 
habitat includes public awareness of the presence of northern spotted 
owls and the importance of habitat protection.
    A third benefit of including these lands is the role that they play 
in the recovery of the northern spotted owl. According to the guidance 
in the 2011 Revised Recovery Plan, the inclusion of these lands is 
important for connectivity between the Eastern and Western northern 
spotted owl ranges. Additionally, there is benefit of including low-
suitability or marginal lands as critical habitat as these habitats may 
be able to grow into ``old growth forests'' at some point in the 
future. We also considered whether inclusion of these lands supports 
recovery of the northern spotted owl.

Benefits of Excluding--O&C Lands and NWFP Matrix Lands

    There are appreciable benefits that will be realized by excluding 
O&C and the NWFP matrix lands (including those ``matrix'' lands now 
managed by BLM as Harvest Land Base lands under the 2016 RMPs outside 
of the O&C 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. Thus, one benefit of excluding these lands from critical 
habitat is to remove one of the regulatory burdens in managing these 
lands for their original purposes, including sustained yield timber 
production. As stated above, O&C lands are to be managed for providing 
timber on a sustained-yield basis. NWFP matrix lands are to be managed 
for multiple use and sustained yield. Lessening one of the regulatory 
hurdles towards that management could lead to increased timber 
production that would benefit local counties and communities by 
supplying jobs and county revenues for schools and roads, protecting 
the local tax base, and protecting the social fabric and customs and 
culture of the citizens of the county.
    An additional benefit of excluding these lands is that making more 
lands available for timber harvest gives land managers a greater 
opportunity to allow longer cycles between timber harvests or to design 
timber harvests to benefit the northern spotted owl. The northern 
spotted owl can use second-growth timber that leaves a few snags or old 
trees on the harvested land. The more land that is in the potential 
harvest base, the more flexibility the BLM and Forest Service have to 
manage for longer cycles between timber harvests, providing 
environmental benefits from the resulting mix of tree ages. Authorizing 
and conducting more timber sales may also lessen the risk of 
catastrophic wildfire that can destroy or degrade northern spotted owl 
habitat and puts rural communities, private property, and lives at 
great risk.
    Another important and relevant factor in considering the benefits 
of exclusion is the recognition of the expertise of locally elected 
governments in areas relating to the stability of the local economy and 
protection of the local custom and culture of the county. While the FWS 
has expertise in biological matters, our expertise does not extend to 
consideration of the local tax base, areas of potential employment, and 
the social fabric of communities and counties. We also recognize that 
the Federal Government should strongly consider and give weight to the 
input of its State and local government partners, and we do so here. 
The County Commissions commenting on this rule are also elected 
representatives of their constituents and should have a considered 
voice in the decisions directly affecting their constituents.

Benefits of Exclusion Outweigh the Benefits of Inclusion--O&C Lands and 
NWFP Matrix Lands

    The Secretary has determined that the benefits of excluding the O&C 
and the NWFP matrix lands from the designation of critical habitat for 
the northern spotted owl outweigh the benefits of including these areas 
as critical habitat. Even after excluding these lands, there remain 
approximately 6,105,279 acres of designated critical habitat as well as 
several million additional acres of protected habitat for the northern 
spotted owl in designated wilderness and National Parks, throughout the 
owl's range. Although the excluded areas provide some conservation 
value, the Secretary has determined that the benefits of excluding the 
O&C lands, given their mandated primary use for timber harvest, and the 
NWFP matrix lands, given their multiple-use values, outweigh the value 
of their inclusion as critical habitat. This conclusion is supported by 
the northern spotted owl's use of timbered private lands where some 
older trees and snags have been retained but timber harvest is allowed.
    This also supports our determination that these areas can still be 
used for recovery of the northern spotted owl. First, as stated in our 
analysis, currently the biggest threat to the recovery of the northern 
spotted owl is the invasive barred owl. We are considering the next 
steps to implement an aggressive barred owl treatment/management 
program with the completion of our experimental study. Additionally, 
northern spotted owl can use a variety of timber age classes for 
recovery. Simply excluding these lands from critical habitat does not 
mean that the owls will abandon these areas or that they will not 
contribute, in some manner, to the recovery of the species, assuming an 
aggressive barred owl removal program is implemented.
    Additionally, where northern spotted owls are present and may be 
affected by discretionary Federal actions, any resulting section 7 
consultations will determine if the actions jeopardize the continued 
existence of the owl; if so, we can work with the Federal agencies and 
applicants to develop reasonable and prudent measures or alternatives 
that allow the action to go forward without jeopardizing the species. 
In other words, for discretionary actions, Federal agencies remain 
obligated under section 7 of the Act to consult with us on actions that 
may affect a federally listed species where it is present to ensure 
such actions do not jeopardize the species' continued existence, even 
in the absence of designated critical habitat. On both O&C and matrix 
lands to be excluded in this rule, surveys for northern spotted owls 
will be completed to determine the presence or absence of owls before 
any activity can occur. If the northern spotted owl is present, the 
proposed activity cannot jeopardize the continued existence of the 
species. Additionally, any programmatic land use plans or amendments 
proposed by the BLM and Forest Service will have to be analyzed through 
section 7 consultation, further ensuring that the management actions 
therein do not jeopardize the species. Thus, the added requirement to 
consult on effects to

[[Page 4841]]

designated critical habitat in the O&C and matrix lands is not an 
efficient use of limited consultation and administrative resources.
    Finally, the informational benefits of including the O&C lands and 
matrix lands as critical habitat are minimal given the well-known 
history of the northern spotted owl. Because the spotted owl has been 
listed since 1990, the public is very aware of its status and any 
additional educational benefits are limited.
    In sum, the benefits derived from excluding the O&C and the NWFP 
matrix lands outweigh the benefit of including these lands in the 
designation. Excluding the O&C and the NWFP matrix lands reduces the 
unnecessary regulatory burden of additional section 7 consultations on 
discretionary activities about adverse modification of designated 
critical habitat. Additionally, exclusion of these lands to ease the 
process for authorizing Federal timber harvesting reflects our 
consideration of the input of the local governments.

Exclusion Will Not Result in Extinction--O&C Lands and NWFP Matrix 
Lands

    We do not find that excluding the O&C and the NWFP matrix acres, in 
addition to the other exclusions discussed above, from the critical 
habitat designation will result in extinction of the northern spotted 
owl. Our findings are summarized below, and are further described in a 
memorandum from the Director to the Secretary (FWS 2021).
    The legal standard under which exclusions are evaluated is whether, 
based on the best scientific and commercial data available, the 
Secretary concludes that the exclusions ``will result in extinction of 
the species.'' Although there are no cases directly on point, the two 
cases that have discussed ``extinction'' have done so with references 
to the ``survival'' of the species rather than recovery of the species. 
See Northern New Mexico Stockman's Association v. United States Fish 
and Wildlife Service, _F. Supp.3d_, 2020 WL 6048149, 117 (D.N.M. 2020); 
Gifford Pinchot Task Force v. USFWS, 378 F.3d 1059 (9th Cir. 2004) 
(rejecting the FWS ESA section 7 regulation defining ``destruction or 
adverse modification'' for conflating survival and recovery). Thus, 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--that is 
whether the species can survive without these particular areas. For the 
following reasons, based on the best scientific and commercial data 
available, the Secretary has not concluded that excluding these 
particular areas will result in extinction of the northern spotted owl.
    First, as stated above, the determination to exclude an area from 
critical habitat designation does not affect the requirement that 
Federal agencies comply with the section 7 obligation to avoid 
discretionary actions that may jeopardize the continued existence of a 
listed species. Similarly, the decision to exclude an area from 
critical habitat does not eliminate the need to comply with the section 
9 prohibitions of the Endangered Species Act. Because there is no 
section 4(d) rule accompanying the northern spotted owl threatened 
listing, the species is treated as if it were endangered and take is 
prohibited. Therefore, any assumptions regarding the future activities 
that take place on Federal or private lands must recognize the 
compliance with those section 7 and section 9 of the ESA, where 
applicable.
    Second, despite the significant acreages of critical habitat that 
have been set aside for the northern spotted owl since 1990, estimated 
populations of northern spotted owl have declined more than 70% since 
the listing of the species. (85 FR 81145, December 15, 2020.) The 
recent 12-Month Finding for the northern spotted owl (85 FR 81144, 
December 15, 2020) determined that an uplisting from threatened to 
endangered was warranted but precluded by higher priorities. Id. A 
recent published demographic study for the northern spotted owl (Dugger 
et al. 2016, entire) found that the nonnative barred owl that is 
invading northern spotted owl habitat was currently the stressor with 
the largest negative impact on the northern spotted owl through 
competition for resources. Current best available scientific and 
commercial data indicate that the largest negative contributing factor 
on the northern spotted owl population is the invasive barred owl. 
Thus, in order to protect the northern spotted owl from extinction, 
management of the barred owl must occur.
    Third, in addition to the critical habitat exclusions finalized 
here, there remain several million acres in National Parks, designated 
wilderness, and wilderness study areas that contain northern spotted 
owl habitat. These areas are not officially designated as critical 
habitat because no additional management is needed in these areas to 
protect the habitat. Absent invasions by the barred owl or wildfire, 
this habitat and the owls living therein will be maintained in their 
current state regardless of any critical habitat exclusions. Because 
the habitat and owls living in National Parks and wilderness will 
continue to be maintained absent barred owl invasions, the proposed 
exclusions will not cause the extinction of the northern spotted owl 
under the section 4(b)(2) standard.
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).
    HCPs necessary in support of incidental take permits under section 
10(a)(1)(B) of the Act provide for partnerships with non-Federal 
entities to minimize and mitigate impacts to listed species and their 
habitat. In some cases, as a result of their commitments in the HCPs, 
incidental take permittees agree to provide more conservation of the 
species and their habitats on private lands than designation of 
critical habitat would provide alone. We place great value on the 
partnerships that are developed during the preparation and 
implementation of HCPs.
    When we undertake a discretionary section 4(b)(2) exclusion 
analysis, we consider areas covered by an approved HCP, and generally 
exclude such areas from a designation of critical habitat if three 
conditions are met:
    (1) The permittee is properly implementing the HCP and is expected 
to continue to do so for the term of the agreement. An HCP is properly 
implemented if the permittee is, and has been, fully implementing the 
commitments and provisions in the HCP, implementing agreement, and 
permit.
    (2) The species for which critical habitat is designated is a 
covered species in the HCP, or very similar in its habitat requirements 
to a covered species. The recognition that the Service extends to such 
an agreement depends on the degree to which the conservation measures 
undertaken in the HCP would also protect the habitat features of the 
similar species.

[[Page 4842]]

    (3) The HCP 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 will not be completed prior to the 
publication of this document; thus, they do not yet fulfill the above 
criteria. As a result, we are not including additional State lands for 
exclusion from the critical habitat designation for the northern 
spotted owl.

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 economically 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 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. Although the 
Service acknowledges that there may be significant economic impacts to 
small entities, largely deregulatory, as a result of the Service's 
decision to exclude additional area in this rule, there is no 
requirement under the RFA to evaluate the potential impacts to entities 
that are not directly regulated. The Service has discussed economic 
impacts to small entities elsewhere as part of its reasoning with 
respect to exclusions considered under section 4(b)2 and the 
requirements of E.O. 12866.
    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.
    In summary, we have considered whether the revised designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that the revised critical habitat 
designation will not have a significant adverse economic impact on a 
substantial number of small business entities. Therefore, a regulatory 
flexibility analysis is not required.

Executive Order 13771

    This rule is an E.O. 13771 (``Reducing Regulation and Controlling 
Regulatory Costs'') (82 FR 9339, February 3, 2017) deregulatory action.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. In our economic analysis 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. The OIRA Administrator has not 
otherwise designated this action as an energy action. Accordingly, no 
Statement of Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This 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.''

[[Page 4843]]

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 species. 
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 that warrant preparation of a 
federalism summary impact statement. 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 on the States, or on the 
relationship between the national government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. 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 species.

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 
species, and we are not making any changes to those elements in this 
document. The areas that 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 http://www.fws.gov/oregonfwo and at http://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.

[[Page 4844]]

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

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

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. We have also evaluated this rule under 
the criteria in Executive Order 13175 and under the Department's Tribal 
consultation policy and have determined that this rule may have a 
substantial direct effect on federally recognized Indian 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 http://www.regulations.gov and upon request from the 
U.S. Fish and Wildlife Service and the Department of the Interior.

Author

    The primary author of this final rule was Karen Budd-Falen, Deputy 
Solicitor, Parks and Wildlife, Immediate Office of the Solicitor, 
Department of the Interior, 1849 C Street NW, Washington, DC 20240.

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. The authority citations for part 17 are revised to read as follows:

    Authority: 16 U.S.C. 1361-2012;1407; 1531-2012;1544; and 4201-
2012;4245, unless otherwise noted.

0
2. Amend Sec.  17.95(b), the entry for ``Northern Spotted Owl (Strix 
occidentalis caurina),'' by revising paragraphs (6) through (8), 
introductory text and second map of (9), and (10) through (19) to read 
as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *
    Northern Spotted Owl (Strix occidentalis caurina)
* * * * *
    (6) Note: Index map of critical habitat units for the northern 
spotted owl in the State of Washington follows:

[[Page 4845]]

[GRAPHIC] [TIFF OMITTED] TR15JA21.025


[[Page 4846]]


    (7) Note: Index map of critical habitat units for the northern 
spotted owl in the State of Oregon follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.026


[[Page 4847]]


    (8) Note: Index map of critical habitat units for the northern 
spotted owl in the State of California follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.027


[[Page 4848]]


    (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:
* * * * *
[GRAPHIC] [TIFF OMITTED] TR15JA21.028


[[Page 4849]]


    (10) Unit 2: Oregon Coast Ranges, Oregon. Map of Unit 2, Oregon 
Coast Ranges, Oregon, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.029


[[Page 4850]]


    (11) Unit 3: Redwood Coast, Oregon and California. Map of Unit 3, 
Redwood Coast, Oregon and California, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.030


[[Page 4851]]


    (12) Unit 4: West Cascades North, Washington. Map of Unit 4, West 
Cascades North, Washington, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.031


[[Page 4852]]


    (13) Unit 5: West Cascades Central, Washington. Map of Unit 5, West 
Cascades Central, Washington, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.032


[[Page 4853]]


    (14) Unit 6: West Cascades South, Oregon. Map of Unit 6, West 
Cascades South, Oregon, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.033


[[Page 4854]]


    (15) Unit 7: East Cascades North, Washington and Oregon. Maps of 
Unit 7, East Cascades North, Washington and Oregon, follow:
[GRAPHIC] [TIFF OMITTED] TR15JA21.034


[[Page 4855]]


[GRAPHIC] [TIFF OMITTED] TR15JA21.035


[[Page 4856]]


    (16) Unit 8: East Cascades South, California and Oregon. Map of 
Unit 8, East Cascades South, California and Oregon, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.036


[[Page 4857]]


    (17) Unit 9: Klamath West, Oregon and California. Map of Unit 9: 
Klamath West, Oregon and California, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.037


[[Page 4858]]


    (18) Unit 10: Klamath East, California and Oregon. Map of Unit 10: 
Klamath East, California and Oregon, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.038


[[Page 4859]]


    (19) Unit 11: Interior California Coast, California. Map of Unit 
11: Interior California Coast, California, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.039


[[Page 4860]]


* * * * *

    Aurelia Skipwith,
Director,
U.S. Fish and Wildlife Service.
[FR Doc. 2021-00484 Filed 1-13-21; 11:15 am]
BILLING CODE 4333-15-P