[Federal Register Volume 86, Number 38 (Monday, March 1, 2021)]
[Rules and Regulations]
[Pages 11892-11895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04209]


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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; Delay of 
Effective Date

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; delay of effective date and request for comments.

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SUMMARY: We, the U.S. Fish and Wildlife Service, are delaying the 
effective date of a final rule we published on January 15, 2021, 
revising the designation of critical habitat for the northern spotted 
owl (Strix occidentalis caurina) under the Endangered Species Act of 
1973, as amended (ESA) (January 15, 2021, Final Rule). In addition, 
this action opens a 30-day comment period to allow interested parties 
to comment on issues of fact, law, and policy raised by that rule and 
whether further delay of the effective date is necessary.

DATES: As of March 1, 2021, the effective date of the final rule that 
published on January 15, 2021, at 86 FR 4820, is delayed from March 16, 
2021, to April 30, 2021.
    Comment Period: To be assured consideration, comments must be 
received or postmarked by March 31, 2021.

ADDRESSES: You may submit comments using either of the following 
methods:
    Electronically via the Federal eRulemaking Portal: Please visit 
https://www.regulations.gov. In the Search Box, enter FWS-R1-ES-2020-
0050, which is the docket number for this action, and click ``search'' 
to view the publications associated with the docket folder. Locate the 
document with an open comment period and follow the instructions to 
submit your comments prior to the close of the comment period.
    By hard copy: Submit by U.S. mail to: Public Comments Processing, 
Attn: FWS-R1-ES-2020-0050, U.S. Fish and Wildlife Service, MS: JAO/3W, 
5275 Leesburg Pike, Falls Church, VA 22041-3803.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov and locate the 
docket folder for FWS-R1-ES-2020-0050.

FOR FURTHER INFORMATION CONTACT: Bridget Fahey, Division of 
Conservation and Classification, U.S. Fish and Wildlife Service, Falls 
Church, VA 22041, telephone 703-358-2172. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal Relay 
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background

    On January 15, 2021, we published a final rule (86 FR 4820) 
revising critical habitat for the northern spotted owl by excluding 
additional areas from designation as critical habitat pursuant to the 
Secretary of the Interior's authority under section 4(b)(2) of the ESA 
(16 U.S.C. 1531 et seq.). On January 20, 2021, the White House issued a 
memorandum instructing Federal agencies to consider postponing the 
effective date after January 20, 2021, of any rules that have published 
in the Federal Register but not yet taken effect, for the purpose of 
reviewing any questions of fact, law, and policy the rules may raise 
(86 FR 7424; January 28, 2021) (``Regulatory Freeze Memorandum'').

[[Page 11893]]

    One of our rules, the revised designation of critical habitat for 
the northern spotted owl, was published in the Federal Register but has 
not yet taken effect so it is subject to review (86 FR 4820; January 
15, 2021). A review of this rule is particularly warranted because of 
the considerable change between the proposed rule and the final rule. 
Specifically, on August 11, 2020, the Service proposed a rule to 
exclude 204,653 acres (82,820 hectares) in 15 counties in Oregon from 
the species' designated critical habitat (85 FR 4847; August 11, 2020). 
The final rule excludes approximately 3,472,064 acres (1,405,094 
hectares) in 14 counties in Washington, 21 counties in Oregon, and 10 
counties in California from the species' designated critical habitat 
(86 FR 4820; January 15, 2021). The additional areas excluded in the 
final rule (more than 3.2 million acres) and the rationale for the 
additional exclusions were not presented to the public for notice and 
comment. We are considering whether the public had appropriate notice 
in the proposed rule such that the determinations made in the final 
rule were a ``logical outgrowth'' of the proposed rule. We note that 
several members of Congress expressed concerns regarding the additional 
exclusions, among other concerns, which they identified in a February 
2, 2021, letter to the Inspector General of the Department of the 
Interior seeking review of the rule.
    We have also received at least two notices of intent to sue from 
interested parties regarding allegations of procedural defects (among 
other potential defects) with respect to our rulemaking for the final 
critical habitat exclusions. The Service has been sued each time it has 
issued a final rule regarding critical habitat for the northern spotted 
owl. These suits include challenges to the initial designation in 1992 
(57 FR 1796; January 15, 1992) (see, e.g., Trinity County Concerned 
Citizens v. Babbitt, 1993 WL 650393 (D.D.C. 1993)), a revision in 2008 
(73 FR 47326; August 13, 2008) (see Carpenters Industrial Council v. 
Kempthorne, No. 1:08-cv-01409 (D.D.C.)), and the revision in 2012 (77 
FR 71876; December 4, 2012) (see Pacific Northwest Regional Council of 
Carpenters v. Bernhardt, No. 1:13-cv-00361 (D.D.C.)).
    In light of the litigation history of northern spotted owl critical 
habitat designations, the clear intentions from some parties to file 
suit to challenge the January 15, 2021, Final Rule, and other questions 
raised, we are reviewing whether the rulemaking was procedurally 
adequate. In particular, as noted above, we are reviewing whether the 
Final Rule was a ``logical outgrowth'' of the proposal and whether the 
public had fair notice and an opportunity to comment on the expansive 
change in both location and amount of areas excluded from critical 
habitat, as well as the rationale for those changes. Extending the 
effective date of the January 15, 2021, Final Rule while the Service 
reconsiders it may avoid unnecessary litigation challenging a rule that 
may change, which could conserve judicial, public, and agency 
resources.
    We are, therefore, delaying the effective date of the final rule we 
published on January 15, 2021, that revised the designation of critical 
habitat for the northern spotted owl under the ESA (86 FR 4820), to 
give us time to consider questions of law, policy, and fact in regard 
to that final rule. The original effective date of the rule was March 
16, 2021; with this document, we are delaying the effective date of the 
rule until April 30, 2021.
    This 45-day delay of the January 15, 2021, Final Rule--based on the 
good cause articulated below--is for the purpose of reviewing any 
questions of fact, law, and policy that are raised by that rule as well 
as the effect of the delay, consistent with the Regulatory Freeze 
Memorandum and OMB Memorandum M-21-14. During this period, we will 
continue to gather information to determine whether any further steps 
should be undertaken, including whether there is a need to postpone the 
effective date further to give us additional time to reconsider the 
rule. To that end, we invite the public to submit comment on any issues 
of fact, law, or policy raised by the January 15, 2021, Final Rule, 
including, without limitation, the following:
    (1) In a January 21, 2021, memorandum (OMB M-21-14) addressing 
steps agencies should take in response to the Regulatory Freeze 
Memorandum in reviewing recently finalized rules, OMB requires agencies 
to consider, among other things, whether the rulemaking process was 
procedurally adequate, including by taking final action that was a 
logical outgrowth of the proposal, and whether interested parties had a 
fair opportunity to present contrary facts and arguments. We, 
therefore, invite comment on whether you think procedural issues exist 
in the January 15, 2021, Final Rule rulemaking process and if so, what 
those issues are and what the Service could do to remedy them.
    (2) Whether the Service should extend the effective date of the 
January 15, 2021, Exclusions Rule beyond April 30, 2021, and, if so, 
for how long and what, if any, the impacts of that delay would be.
    (3) Whether the Secretary's conclusions and analyses in the January 
15, 2021, Final Rule were consistent with the law, and whether the 
Secretary properly exercised his discretion under section 4(b)(2) of 
the ESA in excluding the areas at issue from critical habitat.
    (4) Whether, and with what supporting rationales, the Service 
should reconsider, amend, rescind, or allow to go into effect the 
January 15, 2021, Final Rule.

II. Good Cause Under the Administrative Procedure Act

    Our implementation of this action extending the effective date of 
the revisions to the northern spotted owl critical habitat rule from 
March 16, 2021, until April 30, 2021, without opportunity for public 
comment, effective immediately upon publication in the Federal 
Register, is based on the good-cause exception provided in the 
Administrative Procedure Act (APA). Pursuant to 5 U.S.C. 553(b)(B) and 
(d)(3), we have determined that good cause exists to forgo the 
requirements to provide prior notice and an opportunity for public 
comment on this 45-day delay in the effective date of the January 15, 
2021, Final Rule, and to make this action announcing the delay 
effective immediately. Under the totality of the circumstances 
presented here, notice and comment would be both impracticable and 
contrary to the public interest because taking the time to provide for 
public notice and comment would prevent the Service from performing its 
functions, create confusion and disruption in the ESA section 7(a)(2) 
consultation process, and thwart the conservation purposes of the Act.
    As noted above, we are reviewing whether the determinations made in 
the final rule were a ``logical outgrowth'' of the proposed rule. In 
addition, there has been substantial litigation in the past on critical 
habitat designations for this species, and we have already received two 
notices of intent to sue to challenge the January 15, 2021, Final Rule. 
Our agency's ``due and required'' execution of its functions under the 
ESA would be unavoidably prevented if we allow the effective date to be 
triggered without the thorough review described above. See S. Doc. No. 
248, 79th Cong., 2d Sess. At 200 (1946). That is, if the January 15, 
2021, final exclusions from designated critical habitat of more than 3 
million acres of northern spotted owl habitat become effective, there 
is the potential that we will not have met our obligations under the 
Act to provide

[[Page 11894]]

required protections for listed species. See Tennessee Valley Authority 
v. Hill, 437 U.S. 153, 174 (1978) (in enacting the ESA, it is ``beyond 
doubt that Congress intended endangered species to be afforded the 
highest of priorities''). Specifically, once the exclusions become 
effective, Federal agencies will no longer be required to consult with 
the Service under section 7(a)(2) of the ESA to determine if agency 
actions will result in the destruction or adverse modification of that 
formerly designated habitat. Federal agencies could thus proceed to 
undertake (or to authorize others to undertake) activities that would 
remove that habitat before the Service has the opportunity to 
reconsider whether those exclusions were appropriate in the first 
place. Because the habitat is defined by forested stands, particularly 
of older trees, it cannot be replaced for many decades once removed. 
Even if the final exclusions rule were to become effective only briefly 
such that immediate implementation of habitat-removal activities would 
be unlikely or limited, having areas previously designated be excluded, 
then reconsidered and potentially included again, would cause confusion 
and disruption in the section 7(a)(2) consultation process, again 
impeding the Federal agencies from executing their conservation 
functions, and also affecting third parties reliant on the Federal 
agency activities.
    Allowing the January 15, 2021, Final Rule to take effect would also 
undermine the citizen-suit procedures established in the statute. The 
Act provides that persons alleging a violation must provide 60-day 
notice of intent to sue (NOI) prior to filing suit. 16 U.S.C. 
1540(g)(2)(C). The purpose of the notice requirement is to provide 
agencies with ``an opportunity to review their actions and take 
corrective measures if warranted.'' Alliance for the Wild Rockies v. 
USDA, 772 F.3d 592, 601 (9th Cir. 2014). As discussed above, we have 
received NOIs that, among other things, raise a substantial allegation 
of a notice-and-comment defect in the January 15, 2021, Final Rule. 
Upon initial review of the NOIs, the Service has concluded that it 
needs additional time to review the allegations in the NOIs to 
determine whether they have merit. However, notice and comment on this 
delay of 45 days would prevent the Service from determining whether 
``corrective measures'' are warranted before expiration of the 60-day 
period intended for this purpose. We are also considering whether we 
may need more time for review, and as noted above, therefore seek 
comment on whether we should further extend the effective date and, if 
so, how long the further extension should be.
    Finally, it is important to recognize that excluding areas from 
critical habitat is not required by the ESA--the authority to exclude 
particular areas from designations of critical habitat under the second 
sentence of section 4(b)(2) of the ESA is in the discretion of the 
Secretary. (In contrast, other duties relating to critical habitat are 
mandatory: The duty for the Service to designate critical habitat, 16 
U.S.C. 1533(a)(3), and the duty of Federal agencies to ensure that 
their actions are not likely to result in the destruction or adverse 
modification of critical habitat, 16 U.S.C. 1536(a)(2).) Therefore, a 
delay in the effective date of the final rule excluding areas from 
critical habitat for the northern spotted owl does not delay compliance 
with a mandate of the Act. Delaying the effective date of the January 
15, 2021, Final Rule, which purported to exercise that discretionary 
authority, simply preserves the status quo while we undertake 
additional review to ensure compliance with the legal mandates and 
conservation purposes of the ESA.
    In sum, we find that the totality of the circumstances here--the 
history of litigation and newly threatened suits, the potential for a 
``logical outgrowth'' problem in the final rule, and the threat to the 
Service's execution of its statutory functions, among other issues--
indicate that there is good cause to forgo notice and comment 
procedures here because it is impractical and contrary to the public 
interest for the Service to provide notice and an opportunity to 
comment on an extension of the effective date of March 16, 2021, for 
the January 15, 2021, Final Rule.
    We also find that there is good cause to make this rule effective 
immediately instead of waiting until 30 days after publication for it 
to become effective. The APA normally requires this 30-day ``grace 
period'' so as to give affected parties time to adjust their behavior 
before a final rule takes effect. See, e.g., Riverbend Farms, Inc. v. 
Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992). However, the APA provides 
an exception to this 30-day grace period for good cause. 5 U.S.C. 
553(d). There is good cause to allow this extension of the January 15, 
2021, Final Rule's effective date to go into effect immediately because 
it preserves the status quo, and there is no change to which parties 
would need time to adjust their behavior. Further, if this rule 
extending the effective date were itself not to become effective for 30 
days, it would mean that the January 15, 2021, Final Rule would go into 
effect on March 16, 2021. That would create the same issues as 
discussed in the preceding paragraphs, i.e., prevent the Service from 
performing its functions, create confusion and disruption in the ESA 
section 7(a)(2) consultation process, and thwart the conservation 
purposes of the ESA.
    We therefore conclude that we have good cause to issue this final 
rule, effective immediately, extending the effective date of the 
January 15, 2021, Final Rule until April 30, 2021.
    The White House memorandum also recommends that, for rules 
postponed for further review, agencies consider opening a 30-day 
comment period to allow interested parties to provide comments about 
issues of fact, law, and policy raised by those rules, and consider any 
requests for reconsideration involving such rules. Consistent with this 
guidance, this rule provides notice and invites public comments on 
issues of fact, law, and policy raised by the rule, whether we should 
further extend the effective date, and, if so, how long the further 
extension should be. A delay in the effective date and opening of a new 
30-day comment period is necessary to ensure that the public has the 
opportunity to provide, and the Service is able to consider, additional 
comments to fully inform the Service's decisions in light of current 
law and policy before the January 15, 2021, Final Rule becomes 
effective.

Public Comments

    You may submit your comments and materials concerning this action 
by one of the methods listed in ADDRESSES. Comments must be submitted 
to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the 
date specified in DATES. We will not consider mailed comments that are 
not postmarked by the date specified in DATES. We will post your entire 
comment--including your personal identifying information--on http://www.regulations.gov. If you provide personal identifying information in 
your comment, you may request at the top of your document that we 
withhold this information from public review. However, we cannot 
guarantee that we will be able to do so. Comments and materials we 
receive will be available for public inspection on http://www.regulations.gov.

[[Page 11895]]

Authority

    The authorities for this action are 16 U.S.C. 1361-1407; 1531-1544; 
and 4201-4245, unless otherwise noted.

Martha Williams,
Senior Advisor to the Secretary, Exercising the Delegated Authority of 
the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-04209 Filed 2-26-21; 8:45 am]
BILLING CODE 4333-15-P