4820 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

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. 

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 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4821 

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 

4822 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

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 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4823 

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, 

lF. Supp.3dl , 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 projectspecific 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 managementinduced landscape pattern and 

disturbance regime changes with 

climate change when making spotted 

owl management decisions. The 

Recovery Plan further recommended an 

adaptive management approach to 

reduce scientific uncertainties. Recovery 

Action 5 in the Recovery Plan for the 

Northern Spotted Owl states: 

‘‘Consistent with Secretarial Order 3226, 

as amended, the Service will consider, 

analyze and incorporate as appropriate 

potential climate change impacts in 

long-range planning, setting priorities 

for scientific research and 

investigations, and/or when making 

major decisions affecting the spotted 

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 

4824 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

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 oldgrowth reserves of the Northwest Forest 

Plan ‘‘are plan-level designations with 

less assurance of long-term persistence 

than areas designated by Congress. 

Designation of 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. 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 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, lF. Supp.3d 

l, 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 resourcebased 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 

4826 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

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 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 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. 

4828 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

Our response: The report provided by 

Douglas County focuses on the impact 

that termination of ‘‘safety net’’ 

payments under the Secure Rural 

Schools and Community SelfDetermination Act would have on 

counties in western Oregon. The report 

discusses reductions in harvest on 

Federal lands in the O&C counties 

attributable to a range of factors, 

resulting in a loss of revenue sharing 

that limited county budgets and rapid 

contractions of the wood products 

sector as logging declined and mills 

closed or reduced shifts. The report, 

prepared in 2007, does not discuss 

impacts of the critical habitat 

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 hydropower 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 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 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. 

4830 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

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 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 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 

4832 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

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

Subunit 2012 critical habitat in 

acres (hectares) 

Areas excluded in acres 

(hectares) 

Final critical habitat 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. 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4833 

TABLE 1—AREAS EXCLUDED BY CRITICAL HABITAT SUBUNIT BY THIS RULE—Continued 

Subunit 2012 critical habitat in 

acres (hectares) 

Areas excluded in acres 

(hectares) 

Final critical habitat in 

acres (hectares) Excluded lands 

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 thirdparty 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 

4834 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

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 § 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 under 

section 4(b)(2) of the Act.

........................... ........................... .......................................... 3,472,064 1,405,094 

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 thirdparty 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 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 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 

4836 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

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-togovernment 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 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 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 wellbeing, 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, 

4838 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

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 ChamberlinFerris 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. 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 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. 

4840 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

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 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 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, lF. 

Supp.3dl, 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. 

4842 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

(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.’’ 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 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. 

4844 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

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 

■ 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. 

■ 2. Amend § 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: 

§ 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: 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4845 


ER15JA21.025</GPH>
4846 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

(7) Note: Index map of critical habitat 

units for the northern spotted owl in the 

State of Oregon follows: 


ER15JA21.026</GPH>
Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4847 

(8) Note: Index map of critical habitat 

units for the northern spotted owl in the 

State of California follows: 


ER15JA21.027</GPH>
4848 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

(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: 

* * * * * 


ER15JA21.028</GPH>
Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4849 

(10) Unit 2: Oregon Coast Ranges, 

Oregon. Map of Unit 2, Oregon Coast 

Ranges, Oregon, follows: 


ER15JA21.029</GPH>
4850 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

(11) Unit 3: Redwood Coast, Oregon 

and California. Map of Unit 3, Redwood 

Coast, Oregon and California, follows: 


ER15JA21.030</GPH>
Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4851 

(12) Unit 4: West Cascades North, 

Washington. Map of Unit 4, West 

Cascades North, Washington, follows: 


ER15JA21.031</GPH>
4852 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

(13) Unit 5: West Cascades Central, 

Washington. Map of Unit 5, West 

Cascades Central, Washington, follows: 


ER15JA21.032</GPH>
Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4853 

(14) Unit 6: West Cascades South, 

Oregon. Map of Unit 6, West Cascades 

South, Oregon, follows: 


ER15JA21.033</GPH>
4854 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

(15) Unit 7: East Cascades North, 

Washington and Oregon. Maps of Unit 

7, East Cascades North, Washington and 

Oregon, follow: 


ER15JA21.034</GPH>
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4856 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

(16) Unit 8: East Cascades South, 

California and Oregon. Map of Unit 8, 

East Cascades South, California and 

Oregon, follows: 


ER15JA21.036</GPH>
Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4857 

(17) Unit 9: Klamath West, Oregon 

and California. Map of Unit 9: Klamath 

West, Oregon and California, follows: 


ER15JA21.037</GPH>
4858 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

(18) Unit 10: Klamath East, California 

and Oregon. Map of Unit 10: Klamath 

East, California and Oregon, follows: 


ER15JA21.038</GPH>
Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4859 

(19) Unit 11: Interior California Coast, 

California. Map of Unit 11: Interior 

California Coast, California, follows: 


ER15JA21.039</GPH>
4860 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

* * * * * 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