38246 Federal Register / Vol. 86, No. 136 / Tuesday, July 20, 2021 / Proposed Rules 

The Proposal 

The FAA is proposing an amendment 

to 14 CFR part 71 by: 

Amending the Class E surface 

airspace at Newton-City-County Airport, 

Newton, KS by removing the Newton 

NDB and associated extensions from the 

airspace legal description; 

And amending the Class E airspace 

extending upward from 700 feet above 

the surface to within a 6.7-mile (reduced 

from a 6.8-mile) radius of Newton-CityCounty Airport; removing the Newton 

NDB and associated extension from the 

airspace legal description; and updating 

the geographic coordinates of the airport 

to coincide with the FAA’s aeronautical 

database. 

This action is necessary due to an 

airspace review caused by the 

decommissioning of the Newton NDB 

which provided navigation information 

for the instrument procedures this 

airport. 

Class E airspace designations are 

published in paragraph 6002 and 6005, 

respectively, of FAA Order 7400.11E, 

dated July 21, 2020, and effective 

September 15, 2020, which is 

incorporated by reference in 14 CFR 

71.1. The Class E airspace designation 

listed in this document will be 

published subsequently in the Order. 

FAA Order 7400.11, Airspace 

Designations and Reporting Points, is 

published yearly and effective on 

September 15. 

Regulatory Notices and Analyses 

The FAA has determined that this 

regulation only involves an established 

body of technical regulations for which 

frequent and routine amendments are 

necessary to keep them operationally 

current, is non-controversial and 

unlikely to result in adverse or negative 

comments. It, therefore: (1) Is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866; (2) is not a 

‘‘significant rule’’ under DOT 

Regulatory Policies and Procedures (44 

FR 11034; February 26, 1979); and (3) 

does not warrant preparation of a 

regulatory evaluation as the anticipated 

impact is so minimal. Since this is a 

routine matter that will only affect air 

traffic procedures and air navigation, it 

is certified that this rule, when 

promulgated, would not have a 

significant economic impact on a 

substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

Environmental Review 

This proposal will be subject to an 

environmental analysis in accordance 

with FAA Order 1050.1F, 

‘‘Environmental Impacts: Policies and 

Procedures’’ prior to any FAA final 

regulatory action. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

The Proposed Amendment 

Accordingly, pursuant to the 

authority delegated to me, the Federal 

Aviation Administration proposes to 

amend 14 CFR part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(f), 106(g); 40103, 

40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 

1959–1963 Comp., p. 389. 

71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of FAA Order 7400.11E, 

Airspace Designations and Reporting 

Points, dated July 21, 2020, and 

effective September 15, 2020, is 

amended as follows: 

Paragraph 6002 Class E Airspace Areas 

Designates as Surface Areas. 

* * * * * 

ACE KS E2 Newton, KS [Amended] 

Newton-City-County Airport, KS 

(Lat. 38°03′26′′ N, long. 97°16′31′′ W) 

Within a 4.2-mile radius of Newton-CityCounty Airport. 

Paragraph 6005 Class E Airspace Areas 

Extending Upward from 700 Feet or More 

Above the Surface of the Earth. 

* * * * * 

ACE KS E5 Newton, KS [Amended] 

Newton City-County Airport, KS 

(Lat. 38°03′26′′ N, long. 97°16′31′′ W) 

That airspace extending upward from 700 

feet above the surface within a 6.7-mile 

radius of Newton City-County Airport. 

Issued in Fort Worth, Texas, on July 14, 

2021. 

Martin A. Skinner, 

Acting Manager, Operations Support Group, 

ATO Central Service Center. 

[FR Doc. 2021–15301 Filed 7–19–21; 8:45 am] 

BILLING CODE 4910–13–P 

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: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

revise the designated critical habitat for 

the northern spotted owl (Strix 

occidentalis caurina) under the 

Endangered Species Act of 1973, as 

amended (Act). After a review of the 

best available scientific and commercial 

information, we propose to withdraw 

the January 15, 2021, final rule that 

would have excluded approximately 3.4 

million acres of designated critical 

habitat for the northern spotted owl. 

Instead, we propose to revise the 

species’ designated critical habitat by 

excluding approximately 204,797 acres 

(82,879 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 

as previously proposed. This proposed 

revision focuses only on exclusions 

under section 4(b)(2) of the Act; we are 

not proposing any other revisions to the 

northern spotted owl’s critical habitat 

designation. 

DATES: We will accept comments 

received or postmarked on or before 

September 20, 2021. Comments 

submitted electronically using the 

Federal eRulemaking Portal (see 

ADDRESSES, below) must be received by 

11:59 p.m. Eastern Time on the closing 

date. We must receive requests for a 

public hearing, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by September 3, 2021. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http://

www.regulations.gov. In the Search box, 

enter FWS–R1–ES–2020–0050, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the Search panel on 

the left side of the screen, under the 

Document Type heading, check the 


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Proposed Rule box to locate this 

document. You may submit a comment 

by clicking on ‘‘Comment.’’ 

(2) By hard copy: Submit by U.S. mail: 

Public Comments Processing, Attn: 

FWS–R1–ES–2020–0050, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on http://

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

For the proposed critical habitat 

exclusions, maps and the 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. 

FOR FURTHER INFORMATION CONTACT: Paul 

Henson, Ph.D., State Supervisor, U.S. 

Fish and Wildlife Service, Oregon Fish 

and Wildlife Office, 2600 SE 98th 

Avenue, Portland, OR 97266; telephone 

503–231–6179. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Relay 

Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Information Requested 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from other governmental 

agencies, Native American Tribes, the 

scientific community, industry, or any 

other interested parties concerning this 

proposed rule. Comments previously 

submitted in response to our August 11, 

2020, proposed revision to critical 

habitat for the northern spotted owl (85 

FR 48487) do not need to be 

resubmitted. We will consider those 

previously submitted comments in our 

final rule. In addition, we considered 

comments submitted in response to our 

March 1, 2021, final rule (86 FR 11892) 

extending the effective date of the 

January 15, 2021, final rule (86 FR 4820; 

hereafter referred to as the ‘‘January 

Exclusions Rule’’) in our April 30, 2021, 

final rule extending the effective date of 

the January Exclusions Rule to 

December 15, 2021 (86 FR 22876). We 

have also taken these comments into 

account in this proposed rule. Parties 

who would like to have the comments 

they submitted in response to our March 

1, 2021, rule reconsidered here should 

resubmit their comments in response to 

this proposed rule. 

We particularly seek comments 

concerning: 

(1) The reasons why we should or 

should not withdraw the January 

Exclusions Rule, which would exclude 

approximately 3.4 million acres of 

designated critical habitat for the 

northern spotted owl. 

(2) The reasons why we should or 

should not exclude areas as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including 

information regarding: 

(a) The related benefits of including or 

excluding specific areas; 

(b) Whether the benefits of exclusion 

outweigh those of inclusion; and 

(c) Whether the exclusion will not 

result in the extinction of the species. 

(3) Any probable economic, national 

security, or other relevant impacts of the 

designation on areas that are being 

considered for exclusion. 

(4) Any additional areas, including 

Federal lands, that should be considered 

for exclusion under section 4(b)(2) of 

the Act and any probable economic, 

national security, or other relevant 

impacts of excluding those areas. If you 

think we should exclude any additional 

areas, please provide credible 

information regarding the existence of a 

meaningful economic or other relevant 

impact supporting a benefit of 

exclusion. 

(5) Specifically, any National Forest 

System lands managed by the U.S. 

Department of Agriculture’s (USDA’s) 

Forest Service (USFS) that should be 

considered for exclusion under section 

4(b)(2) of the Act and any probable 

economic, national security, or other 

relevant impacts of excluding those 

areas. 

(6) Any significant new information 

or analysis concerning economic 

impacts that we should consider in the 

balancing of the benefits of inclusion 

versus the benefits of exclusion in the 

final determination. 

(7) Whether and how ongoing 

litigation challenging the Bureau of 

Land Management’s (BLM) management 

of Oregon and California Railroad 

Revested Lands (‘‘O&C lands’’) should 

be addressed in our final rule. See the 

BLM Harvest Land Base section below 

for more information regarding this 

litigation. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Please note that submissions merely 

stating support for, or opposition to, the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a final determination, as 

section 4(b)(2) of the Act directs that 

designations or revisions to critical 

habitat must be made on the basis of the 

best scientific data available and after 

taking into consideration the economic 

impact, the impact on national security, 

and any other relevant impact, of 

specifying any particular area as critical 

habitat. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via http:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on http://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov. 

Because we will consider all 

comments and information we receive 

during the comment period, our final 

revision may differ from this proposal. 

Based on the new information we 

receive (and any comments on that new 

information), our final revision may not 

exclude all areas proposed, or it may 

exclude additional areas if we find that 

the benefits of exclusion outweigh the 

benefits of inclusion, or it may remove 

areas if we find that the area does not 

meet the definition of ‘‘critical habitat.’’ 

Any changes made in the final rule 

should be of a type that could have been 

reasonably anticipated by the public. 

Changes in a final revision would be 

reasonably anticipated if: (1) We base 

them on the best scientific and 

commercial data available and take into 

consideration the relevant impacts; (2) 

we articulate a rational connection 

between the facts found and the 

conclusions made, including why we 

changed our conclusion; and (3) we base 

removal of designation of any areas on 

a determination either that the area does 

not meet the definition of ‘‘critical 

habitat’’ or that the benefits of excluding 


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the area will outweigh the benefits of 

including it in the designation. 

Public Hearing 

Section 4(b)(5) of the Act provides for 

a public hearing on this proposal, if 

requested. Requests must be received by 

the date specified in DATES. Such 

requests must be sent to the address 

shown in FOR FURTHER INFORMATION

CONTACT. We will schedule a public 

hearing on this proposal, if requested, 

and announce the date, time, and place 

of the hearing, as well as how to obtain 

reasonable accommodations, in the 

Federal Register and local newspapers 

at least 15 days before the hearing. For 

the immediate future, we will provide 

these public hearings using webinars 

that will be announced on the Service’s 

website, in addition to the Federal 

Register. The use of these virtual public 

hearings is consistent with our 

regulations at 50 CFR 424.16(c)(3). 

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 

announcing 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 reversed and remanded, 

and the case remained pending before 

the district court. 

On April 13, 2020, we entered into a 

stipulated settlement agreement 

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 to the Federal 

Register: By July 15, 2020, a proposed 

revised critical habitat rule that 

identifies proposed exclusions under 

section 4(b)(2) of the Act, and on or 

before December 23, 2020, a final 

revised critical habitat rule, or 

withdrawal of the proposed rule if the 

Service determines not to exclude any 

areas from the designation under section 

4(b)(2) of the Act. 

On August 11, 2020 (85 FR 48487), we 

published in the Federal Register a 

proposed revised critical habitat rule to 

exclude 204,653 acres (82,820 hectares) 

within 15 counties in Oregon under 

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

proposed rule, we propose to exclude 

204,797 acres (82,879 hectares) within 

the same 15 counties in Oregon. The 

difference in the proposed exclusions 

from 204,653 acres to 204,797 acres is 

the result of a discrepancy that we later 

identified in our acreage calculations.) 

We opened a 60-day comment period on 

the August 11, 2020, proposed rule, 

which closed on October 13, 2020. On 

January 15, 2021, we published in the 

Federal Register the January Exclusions 

Rule (86 FR 4820), excluding 

approximately 3,472,064 acres 

(1,405,094 hectares) within 45 counties 

in Washington, Oregon, and California 

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

August 11, 2020, proposed rule (85 FR 

48487) and our January Exclusions Rule 

met the stipulations of the settlement 

agreement. 

The initial effective date of the 

January Exclusions Rule was March 16, 

2021. On March 1, 2021, we extended 

the effective date of the January 

Exclusions Rule to April 30, 2021 (86 

FR 11892). At that time, we also opened 

a 30-day comment period, inviting 

comments on the impact of the delay of 

the effective date of the January 

Exclusions Rule, as well as comments 

on issues of fact, law, and policy raised 

by that final rule. After considering 

comments received in response to our 

March 1, 2021, final rule delaying the 

effective date, on April 30, 2021, we 

again extended the effective date of the 

January Exclusions Rule to December 

15, 2021 (86 FR 22876). 

Review and Reconsideration of the 

January 15, 2021, Final Rule 

In our March 1, 2021, final rule (86 FR 

11892) extending the effective date of 

the January Exclusions Rule, we 

acknowledged that the additional areas 

excluded in that final rule (more than 

3.2 million acres) and the rationale for 

the additional exclusions were not 

presented to the public for notice and 

comment. We noted that several 

members of Congress expressed 

concerns regarding the additional 

exclusions, among other concerns, 

which they identified in a February 2, 

2021, letter to the Inspector General of 

the Department of the Interior seeking 

review of the January 15, 2021, final 

rule. We also noted we received at least 

two notices of intent to sue from 

interested parties regarding allegations 

of procedural defects, among other 

potential defects, with respect to our 

rulemaking for the final critical habitat 

exclusions. 

We received a number of comments in 

response to our March 1, 2021, final rule 

wherein we invited public comment on 

(1) any issues or concerns about 

whether the rulemaking process was 

procedurally adequate; (2) on whether 

the Secretary’s conclusions and analyses 

in the January Exclusions Rule were 

consistent with the law, and whether 

the Secretary properly exercised his 

discretion under section 4(b)(2) of the 

Act in excluding the areas at issue from 

critical habitat; and (3) whether, and 

with what supporting rationales, the 

Service should reconsider, amend, 

rescind, or allow to go into effect the 

January Exclusions Rule. Commenters 

identified potential defects in the 

January Exclusions Rule—both 

procedural and substantive. We 

summarized these comments in our 

April 30, 2021, final rule delaying the 

effective date of the January Exclusions 

Rule until December 15, 2021 (86 FR 

22876). 

Based on these comments and 

concerns, we reconsidered the rationale 

and justification for the large exclusion 

of critical habitat identified in the 

January Exclusions Rule. As a result, the 

Service now concludes that there was 

insufficient rationale and justification to 

support the exclusion of approximately 

3,472,064 acres (1,405,094 hectares) 

from critical habitat for the northern 

spotted owl, an exclusion that removed 

an additional approximately 3.2 million 

acres from designation as compared 

with the August 2020 proposed rule. 

Our reexamination of the January 

Exclusions Rule identified defects and 

shortcomings, which we summarize in 

the following paragraphs. 

As a procedural matter, we find it 

would be necessary and appropriate to 

solicit and consider additional notice 

and an opportunity to comment on the 

exclusions made final in the January 

Exclusions Rule before those exclusions 

could go into effect. The January 

Exclusions Rule excluded substantially 

more acres (36 percent of designated 

critical habitat versus the 2 percent 

proposed in the August 2020 proposed 

revised rule). The January Exclusions 

Rule also excluded critical habitat in a 

much broader geographic area than 

proposed, including adding exclusions 

in Washington and California when 

only exclusions in Oregon had been 

included in the proposed rule. The 

January Exclusions Rule also included 

new rationales for the exclusions that 

were not identified in the August 11, 

2020, proposed revised critical habitat 

rule (85 FR 48487). These included 

generalized assumptions about the 

economic impact of both the listing of 

the northern spotted owl and the 


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subsequent designation of areas as 

critical habitat; the stability of local 

economies and protection of the local 

custom and culture of counties; the 

presumption that exclusions would 

increase timber harvest and result in 

longer cycles between harvest, that 

timber harvest designs would benefit 

the northern spotted owl, and that the 

increased harvest would reduce the risk 

of wildfire; and that northern spotted 

owls may use areas that have been 

harvested if some forest structure was 

retained. The public did not have an 

opportunity to review or comment on 

these new rationales. 

Additionally, the January Exclusions 

Rule excluded all of the Oregon and 

California Railroad Revested Lands 

(O&C lands) managed by BLM and 

USFS. 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 (Pub. L. 75– 

405) (O&C Act) addresses the 

management of O&C lands. The January 

Exclusions Rule failed to reconcile a 

change in our prior findings that areas 

designated on lands managed under the 

O&C Act were essential to the 

conservation of the species. The Service 

previously concluded in our 2012 

critical habitat rule (77 FR 71876) that 

the O&C lands and other lands managed 

as ‘‘matrix’’ lands for timber production 

significantly contribute to the 

conservation of the northern spotted 

owl, that recovery of the owl cannot be 

attained without the O&C lands, and 

that our modeling showed that not 

including some of these O&C lands in 

the critical habitat network resulted in 

a significant increase in the risk of 

extinction. 

In response to our March 1, 2021, rule 

(86 FR 11892) extending the effective 

date of the January Exclusions Rule, 

some commenters stated that we 

provided sufficient notice and an 

opportunity for the public to be aware 

of the potential for the expansion of the 

exclusions from the proposed to final 

rules. Industry groups asserted that the 

August 11, 2020, proposed revised 

critical habitat rule (85 FR 48487) made 

clear that additional exclusions were 

being considered, in part, based on our 

request for information on additional 

exclusions we should consider (AFRC 

2021, pp. 5–6). In contrast, many other 

commenters objected to a lack of notice 

and opportunity to comment on the 

significant changes. These included 

comments from the newly impacted 

State fish and wildlife agencies 

(Washington Department of Fish and 

Wildlife 2021, California Department of 

Fish and Wildlife 2021). In order to 

ensure a robust opportunity for public 

input on the changes, we are erring on 

the side of transparency. If we were 

proposing to implement the January 

Exclusions Rule, we would open a 

public comment period on that rule and 

consider that feedback before deciding 

to implement the rule. Based on our 

review, however, we are now proposing 

to withdraw the January Exclusions 

Rule, prior to its implementation, due to 

a number of concerns that the 

exclusions would be inconsistent with 

the conservation purposes of the Act as 

we summarize below. 

First, the large additional exclusions 

made in the January Exclusions Rule 

were premised on inaccurate 

assumptions about the status of the owl 

and its habitat needs particularly in 

relation to barred owls. The large 

additional exclusions were based in part 

on an assumption that barred owl 

control is the fundamental driver of 

northern spotted owl recovery, when in 

fact the best scientific data indicate that 

protecting late-successional habitat also 

remains critical for the conservation of 

the spotted owl as well (FWS 2020, p. 

83). 

In addition, in concluding that the 

exclusions of the January Exclusions 

Rule will not result in the extinction of 

the northern spotted owl (a finding 

necessary for any section 4(b)(2) 

exclusions) the January Exclusions Rule 

relied, in part, upon a large-scale barred 

owl removal program that is not yet in 

place. The Service is in the process of 

developing a barred owl management 

strategy, but it is premature to conclude 

that a barred owl management plan will 

be implemented. Considerable 

economic, logistical, social, and legal 

issues must be addressed prior to 

implementation of such a strategy. 

Since completion of the recovery plan 

for the northern spotted owl (FWS 

2011), the Service has worked closely 

with Federal and State land managers to 

minimize or avoid impacts to extant 

spotted owls due to timber harvest, 

while at the same time carrying out the 

barred owl removal experiment (Wiens 

et al. 2021) and initiating development 

of a barred owl management program. 

This approach has allowed for some 

timber harvest to proceed under State 

and Federal land management plans 

(e.g., BLM’s 2016 Resource Management 

Plans in western Oregon (BLM RMPs)) 

while minimizing impacts to long-term 

spotted owl recovery prospects. 

Potential timber harvest on the critical 

habitat that would be excluded in the 

January Exclusions Rule would far 

exceed the level of impact to spotted 

owls that the Service anticipated in 

those land management plans. Thus, it 

is premature to rely solely on an 

anticipated barred owl management 

program to offset the potential loss of 

millions of acres of spotted owl critical 

habitat over time or to conclude it 

would not result in the extinction of the 

subspecies. 

Second, the January Exclusions Rule 

undermined the biological redundancy 

of the critical habitat network by 

excluding large areas of critical habitat 

across the designation and did not 

address the ability of the remaining 

units and subunits to function in that 

network. The 2012 critical habitat 

designation (77 FR 71876) provided for 

biological redundancy in northern 

spotted owl populations and habitat by 

maintaining sufficient habitat on a 

landscape level in areas prone to 

frequent natural disturbances, such as 

the drier, fire-prone regions of its range 

(Noss et al. 2006, p. 484; Thomas et al. 

2006, p. 285; Kennedy and Wimberly 

2009, p. 565). 

In the development of habitat 

conservation networks generally, the 

intent of spatial redundancy is to 

increase the likelihood that the network 

and populations can sustain habitat 

losses by inclusion of multiple 

populations unlikely to be affected by a 

single disturbance event. This 

redundancy is essential to the 

conservation of the northern spotted 

owl because disturbance events such as 

fire can potentially remove large areas of 

habitat with negative consequences for 

northern spotted owls. This redundancy 

can also allow for a relatively small 

amount of human-caused disturbance 

such as timber harvest without 

jeopardizing the species or adversely 

modifying its critical habitat, provided 

that disturbance is carefully planned 

and evaluated within the appropriate 

temporal and spatial context such as 

projects consistent with BLM’s 2016 

RMPs. The modeling and evaluation 

process used by the Service in our 2012 

final critical habitat rule (77 FR 71876) 

addresses spatial redundancy at two 

scales: By (1) making critical habitat 

subunits large enough to support 

multiple groups of owl sites; and (2) 

distributing multiple critical habitat 

subunits within a single geographic 

region. This approach was particularly 

the case in the fire-prone Klamath and 

Eastern Cascades portions of the range. 

This increased habitat redundancy also 

provides for the conservation of 

northern spotted owls as they face 

growing competition from barred owls. 

The exclusions in the January 

Exclusions Rule also failed to consider 

the needs for connectivity between 

critical habitat units, particularly in 


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southern Oregon where the bulk of the 

additional areas were excluded in the 

January Exclusions Rule. Successful 

dispersal of northern spotted owls is 

essential to maintaining genetic and 

demographic connections among 

populations across the range of the 

species (FWS 2020, p. 24). Some 

subunits that were designated to 

provide this support were reduced in 

the January Exclusions Rule by over 50 

to 90 percent. If these exclusions were 

implemented, these subunits would no 

longer provide the demographic support 

for which they were designated. Again, 

as described above, the Service 

anticipates and plans for a relatively 

small amount of human-caused and 

natural disturbance in these units, 

meted out over space and time in a 

manner that supports recovery over the 

long term. The January Exclusions Rule 

could lead to timber harvest that would 

greatly accelerate those impacts well 

beyond what was anticipated in the 

recovery plan for the northern spotted 

owl (FWS 2011) and various land 

management plans. 

The January Exclusions Rule also 

overstates the conservation value of 

non-designated habitat for the owl on 

protected Federal lands such as national 

parks and designated wilderness areas. 

These Federal lands are generally 

protected from proposed Federal 

activities that would result in significant 

removal of suitable owl habitat, and so 

they may provide areas that can serve as 

refugia for northern spotted owls. These 

protected areas, however, are relatively 

small and widely dispersed across the 

range of the owl. They are disjunct from 

one another and cannot be relied on to 

sustain the species unless they are part 

of and connected to a wider reserve 

network as provided by the 2012 critical 

habitat designation (77 FR 71876). As 

discussed above, that network would be 

greatly diminished and fragmented by 

the January Exclusions Rule if 

implemented. 

Third, under section 4(b)(2) of the 

Act, the Secretary cannot exclude areas 

from critical habitat if he or she finds, 

‘‘based on the best scientific and 

commercial data available, that the 

failure to designate such area as critical 

habitat will result in the extinction of 

the species concerned.’’ The January 

Exclusions Rule relied upon a 

determination by the Secretary that the 

exclusions will not result in the 

extinction of the northern spotted owl 

based in part on a narrow interpretation 

of this requirement. In a memorandum 

to the Secretary (FWS 2021a), the 

Director suggested that the phrase in the 

Act ‘‘will result in extinction’’ requires 

the extinction outcome to be 

immediately determinative and 

proximal. However, critical habitat 

designations serve to identify those 

specific areas that are essential to the 

conservation of a species; 

‘‘conservation’’ under the Act means 

improving the status of the listed 

species to the point at which the 

protections of the Act are no longer 

necessary, i.e., the species is recovered. 

Species listed as threatened or 

endangered species are by definition 

likely to be in danger of extinction or 

already in danger of extinction, and our 

listing action affirms that they are likely 

to become extinct unless affirmatively 

conserved. While the language of 

section 4(b)(2) uses the phrase ‘‘will 

result in extinction,’’ we interpret that 

language within the context of the 

purpose of critical habitat designations 

and the purpose of the Act—such that 

exclusions under section 4(b)(2) that are 

reasonably certain to lead to the 

eventual extinction of the species are 

prohibited, not just exclusions that are 

immediate and directly caused by the 

exclusion. 

A determination of immediate 

proximal extinction as a result of a 

critical habitat exclusion under section 

4(b)(2) may be possible for the rarest 

and most imperiled of species, but it is 

less likely to be determined for many 

listed species, especially those that are 

long-lived or thinly dispersed over large 

geographic ranges. The northern spotted 

owl is both: Individual northern spotted 

owls can live up to 20 years, and they 

are widely distributed at low densities 

across three States. For example, if the 

bulk of the northern spotted owl’s 

habitat were to be removed except for 

the portion that exists in national parks, 

one could reasonably conclude the 

subspecies would not go extinct 

immediately, say within 1 to 5 years. 

Individual northern spotted owls 

remaining in those parks scattered 

across the range might persist for one or 

a few generations (that is, greater than 

20 years). However, the subspecies is 

still likely to go extinct in this scenario. 

Basic conservation biology principles 

and metapopulation dynamics predict 

that those remnant and now isolated 

northern spotted owl subpopulations 

would likely die off without regular 

genetic and demographic interaction 

with northern spotted owls from 

neighboring subpopulations. 

Forces working against the 

persistence of these isolated 

subpopulations include genetic 

inbreeding and catastrophic stochastic 

events such as wildfire. Therefore, it is 

a reasonable scientific conclusion that 

the subspecies would go extinct under 

such conditions, but this extinction 

process will occur over decades as these 

forces manifest themselves and as longlived individuals die off. The extinction 

would not occur immediately, as it 

might with rarer and more short-lived 

species, but eventual extinction is still 

a scientifically predictable outcome 

with a high likelihood of certainty. The 

Act requires us to use the best available 

science when applying the discretion 

afforded in section 4(b)(2), and this 

includes making a reasonable and 

defensible scientific interpretation of 

extinction risk that is relevant to the 

species under consideration. In this 

current proposal, we correct the 

previous misapplication of section 

4(b)(2) extinction risk, which could not 

meet the Act’s purpose of conserving 

listed species and the ecosystems on 

which they depend. 

Further, the January Exclusions Rule 

did not consider that a reduction in 

habitat conservation, in concert with the 

impacts from the barred owl, will 

exacerbate and accelerate the risk of 

extinction as discussed in our recent 12- 

month finding and supporting 

documentation that the species is in 

decline and warrants reclassification as 

endangered (85 FR 81144)—that is, that 

the species is in danger of extinction 

throughout all or a significant portion of 

its range. The species has experienced 

rapid population declines and potential 

extirpation in Washington and parts of 

Oregon, is functionally extinct in British 

Columbia, and continues to exhibit 

similar declines in other parts of the 

range. Northern spotted owls are 

declining at a rate of 5.3 percent across 

their range and populations in Oregon 

and Washington have declined by over 

50 percent, with some declining by 

more than 75 percent, since 1995 

(Franklin et al. 2021). Franklin et al. 

(2021, p. 18) emphasizes the importance 

of maintaining northern spotted owl 

habitat, regardless of occupancy, in light 

of competition from barred owls to 

provide areas for recolonization and 

connectivity for dispersing northern 

spotted owls. The January Exclusions 

Rule, if implemented, would work at 

cross purposes with this 

recommendation. 

Specifically, much of the areas 

excluded by the January Exclusions 

Rule are allocated by USFS and BLM as 

Late-Successional Reserves and 

managed for late-successional forestdependent species, such as the northern 

spotted owl, in accordance with the 

Northwest Forest Plan (NWFP) (USFS 

and BLM 1994a, USFS and BLM 1994b) 

and the BLM RMPs (BLM 2016a, BLM 

2016b). The NWFP and the BLM RMPs 

provide adequate landscape-scale 

conservation for the northern spotted 


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owl while allowing for relatively small 

areas of critical habitat to be harvested 

over time. If the January Exclusions 

Rule enabled subsequent habitat 

removal on these lands that is 

inconsistent with the current NWFP and 

BLM RMPs, as suggested in the January 

Exclusions Rule’s identification of 

increased timber harvest as a benefit of 

exclusion, it would preclude the 

recovery of the northern spotted owl 

and result in the species’ eventual 

extinction. 

In sum, substantial issues have been 

raised that our January Exclusions Rule 

would preclude the conservation of the 

northern spotted owl, a species we 

recently found warrants reclassifying as 

an endangered species in danger of 

extinction throughout its range (85 FR 

81144, December 15, 2020). Upon 

review and reconsideration as described 

above, the Service now proposes to 

withdraw the January Exclusions Rule 

and return to the original August 11, 

2020, proposed exclusion of 204,797 

acres (82,879 hectares) within 15 

counties in Oregon (as adjusted from 

204,653 acres (82,820 hectares) to 

correct a discrepancy in acreage 

calculations, as explained above under 

Previous Federal Actions). The 

proposed exclusion of these 204,797 

acres is a scientifically sound 

application of the Service’s 

discretionary authority under section 

4(b)(2) of the Act. This exclusion, which 

is consistent with existing Federal land 

management plans and the recovery 

plan for the northern spotted owl (FWS 

2011), provides sufficient habitat 

conservation for long-term northern 

spotted owl recovery while also 

allowing carefully considered timber 

harvest and other activities to proceed 

on portions of these Federal lands. 

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 

(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). Our 

regulation at 50 CFR 424.02 also now 

defines the term ‘‘habitat’’ for the 

purposes of designating critical habitat 

only, as the abiotic and biotic setting 

that currently or periodically contains 

the resources and conditions necessary 

to support one or more life processes of 

a species. This new regulatory 

definition has a narrow scope and 

would only be relevant if we were 

considering designating areas that are 

outside of the geographical area 

occupied at the time of listing. We did 

not consider including areas outside the 

geographical area occupied at the time 

of listing in this proposed revised rule; 

rather, we are proposing to exclude 

areas from it. Nonetheless, we have 

taken the opportunity provided by this 

proposed revision to review the existing 

designation for conformance with the 

new regulatory definition. All the areas 

within the designation of critical habitat 

are within the geographical area 

occupied at the time of listing and 

encompass forested areas with specific 

characteristics, described further below, 

which are the abiotic and biotic setting 

that currently or periodically contains 

the resources and conditions necessary 

to support one or more life processes of 

the species. 

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 change 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. 

When 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, the Service 

identifies to the extent known, 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 

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, 


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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 when 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) designating critical 

habitat, we determined that all units 

and subunits met the first prong of Act’s 

definition of critical habitat of being 

within the geographical area occupied 

by the species at the time of listing. Our 

determination was based on the 

northern spotted owl’s wide-ranging use 

of the landscape, and the distribution of 

known owl sites at the time of listing 

across the units and subunits designated 

as critical habitat. We recognize that, 

subsequent to listing, some areas within 

these units and subunits have at times 

not been used by individual northern 

spotted owls due to displacement by 

competition with the nonnative barred 

owl. However, we anticipate many of 

these areas will be used by individual 

northern spotted owls in the future if 

barred owl management is implemented 

and effective, as these areas currently or 

periodically contain the resources and 

conditions necessary to support one or 

more life processes of the owl. 

At a finer scale within the occupied 

geographic area within some of these 

units and subunits, the forest mosaic 

contains some areas of younger forest 

that may not have been occupied at the 

time of listing. These areas were 

included in the designation to provide 

connectivity (physical and biological 

feature (PBF) 4—dispersal habitat) 

between occupied areas, room for 

population growth, and the ability to 

provide sufficient suitable habitat on the 

landscape for the owl in the face of 

natural disturbance regimes (e.g., fire). 

These areas are essential for the 

conservation of the species; therefore, 

they meet the second prong in the Act’s 

definition of critical habitat. 

Our December 4, 2012, final rule (77 

FR 71876) includes four PBFs (formerly 

referred to as primary constituent 

elements, or PCEs) specific to the 

northern spotted owl. In summary, PBF 

1 is forest types that may be in early-, 

mid-, or late-seral stages and that 

support the northern spotted owl across 

its geographical range; PBF 2 is nesting 

and roosting habitat; PBF 3 is foraging 

habitat; and PBF 4 is dispersal habitat 

(see 77 FR 71876, December 4, 2012; pp. 

72051–72052, for a full description of 

the PBFs). In areas occupied at the time 

of listing, not all of the designated 

critical habitat contains all of the PBFs, 

because not all life-history functions 

require all of the PBFs. Some subunits 

contain all PBFs and support multiple 

life processes, while some subunits may 

contain only PBFs necessary to support 

the species’ particular use of those 

subunits as habitat. However, all of the 

areas occupied at the time of listing and 

designated as critical habitat support at 

least PBF 1, in conjunction with at least 

one other PBF. Thus, PBF 1 must always 

occur in concert with at least one 

additional PBF (i.e., PBFs 2, 3, or 4) (77 

FR 71876, December 4, 2012; p. 71908). 

When determining critical habitat 

boundaries for the December 4, 2012, 

final rule, we made every effort to avoid 

including areas that lack physical or 

biological features for the northern 

spotted owl. Due to the limitations of 

mapping at fine scales, we were often 

not able to segregate these areas from 

areas shown as critical habitat on maps 

suitable in scale for publication within 

the Code of Federal Regulations (CFR). 

The following types of areas are not 

critical habitat because they cannot 

support northern spotted owl habitat 

and are not included in the 2012 

designation: Meadows and grasslands, 

oak and aspen (Populus spp.) 

woodlands, and manmade structures 

(such as buildings, aqueducts, runways, 

roads, and other paved areas), and the 

land on which they are located. Thus, 

we included regulatory text in the 

December 4, 2012, final rule clarifying 

that these areas were not included in the 

designation even if they occur within 

the mapped boundaries of critical 

habitat (77 FR 71876, December 4, 2012; 

p. 72052). 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 

Species Act (published in the Federal 

Register on July 1, 1994 (59 FR 34271)), 

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When determining which areas 

should be designated as critical habitat, 

our primary source of information is the 

status analysis in the listing rule and 

other information developed during the 

listing process for the species. 

Additional information sources may 

include any generalized conservation 

strategy, criteria, or outline that may 

have been developed for the species; the 

recovery plan for the species; articles in 

peer-reviewed journals; conservation 

plans developed by States and counties; 

scientific status surveys and studies; 

biological assessments; other 

unpublished materials; or experts’ 

opinions or personal knowledge. 

Habitat is dynamic, and species may 

move from one area to another over 

time. Critical habitat designated at a 

particular point in time may not include 

all of the areas that we may later 

determine are necessary for the recovery 

of the species. For these reasons, a 

critical habitat designation does not 

signal that habitat outside the 

designated area is unimportant or may 

not be needed for recovery of the 

species. Areas that are important to the 

conservation of the species, both inside 

and outside the critical habitat 

designation, will continue to be subject 

to: (1) Conservation actions 

implemented under section 7(a)(1) of 

the Act; (2) regulatory protections 

afforded by the requirement in section 

7(a)(2) of the Act for Federal agencies to 

ensure their actions are not likely to 

jeopardize the continued existence of 

any endangered or threatened species; 

and (3) the prohibitions found in section 

9 of the Act. Federally funded or 

permitted projects affecting listed 

species outside their designated critical 

habitat areas may still result in jeopardy 

findings in some cases. These 

protections and conservation tools will 

continue to contribute to recovery of 

this species. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans (HCPs), or other species 

conservation planning efforts if new 

information available at the time of 

these planning efforts calls for a 

different outcome. 

The proposed exclusion of 204,797 

acres (82,879 hectares) within 15 

counties in Oregon as described in this 


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document does not change the majority 

of the December 4, 2012, final rule 

currently in effect. The only sections of 

the rule that published at 77 FR 71876 

(December 4, 2012) that would change 

with this proposed revision are table 8 

in the Exclusions discussion (pp. 

71948–71949), the subunit maps related 

to the proposed exclusions (pp. 72057 

2012;72058, 72062, 72065 2012;72067), 

and the index map of Oregon (p. 72054). 

The regulations concerning critical 

habitat have been revised and updated 

since 2012 (81 FR 7414, February 11, 

2016; 84 FR 45020, August 27, 2019; 85 

FR 81411, December 16, 2020; 85 FR 

82376, December 18, 2020). Our 

December 4, 2012, designation of 

critical habitat for the northern spotted 

owl and the revisions proposed in this 

rule are in accordance with the 

requirements of the revised critical 

habitat regulations, with the exception 

of the use of the term ‘‘primary 

constituent element’’ (PCE) in the 

December 4, 2012, final rule; here, we 

use the term ‘‘physical or biological 

feature’’ (PBF), as noted above, in 

accordance with the updated critical 

habitat regulations. The primary 

constituent elements (PCEs) are, 

however, the physical and biological 

features (PBFs) as described in the 

revised regulations: They are essential 

to the conservation of the species, and 

they may require special management 

considerations or protection. 

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. 

The Secretary may exclude an area from 

critical habitat if he or she determines 

that the benefits of such exclusion 

outweigh the benefits of specifying such 

area as part of the critical habitat, unless 

the Secretary 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. 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. 

In accordance with our recently 

finalized regulation at 50 CFR 17.90(a) 

regarding the application of section 

4(b)(2) of the Act (85 FR 82376, 

December 18, 2020), based on the best 

information available regarding 

economic, national security, and other 

relevant impacts, in this proposed rule 

we identify the areas that the Service 

has reason to consider for exclusion and 

explain why they are proposed for 

exclusion. ‘‘Economic impacts’’ may 

include, but are not limited to, the 

economy of a particular area, 

productivity, jobs, and any opportunity 

costs arising from the critical habitat 

designation (such as those anticipated 

from reasonable and prudent 

alternatives that may be identified 

through a section 7 consultation) as well 

as possible benefits and transfers (such 

as outdoor recreation and ecosystem 

services). ‘‘Other relevant impacts’’ may 

include, but are not limited to, impacts 

to Tribes, States, local governments, 

public health and safety, community 

interests, the environment (such as 

increased risk of wildfire or pest and 

invasive species management), Federal 

lands, and conservation plans, 

agreements, or partnerships. We 

describe below the process that we 

undertook for taking into consideration 

each category of impacts and our 

analyses of the relevant impacts. 

Consideration of Economic Impacts 

We did not exclude areas from our 

December 4, 2012, final critical habitat 

designation (77 FR 71876) based on 

economic impacts, and we are not now 

proposing to exclude any areas solely on 

the basis of 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. The final 

economic analysis of the 2012 critical 

habitat designation for the northern 

spotted owl found the incremental 

effects of the designation to be relatively 

small due to the extensive conservation 

measures already in place for the 

species because of its listed status under 

the Act and because of the measures 

provided under the NWFP (USFS and 

BLM 1994) and other conservation 

programs (IEc 2012, pp. 4–32, 4–37). 

Thus, we concluded that the future 

probable incremental economic impacts 

were not likely to exceed $100 million 

in any single year, and impacts that are 

concentrated in any geographic area or 

sector were not likely as a result of 

designating critical habitat for the 

northern spotted owl. The incremental 

effects included: (1) An increased 

workload for action agencies and the 

Service to conduct reinitiated section 7 

consultations for ongoing actions in 

newly designated critical habitat (areas 

proposed for designation that were not 

already included within the extant 

designation); (2) the cost to action 

agencies of including an analysis of the 

effects to critical habitat for new 

projects occurring in occupied areas of 

designated critical habitat; and (3) 

potential project alterations in areas 

where owls are not currently present 

within designated critical habitat. 

Although we considered the 

incremental impact of administrative 

costs to Federal agencies associated 

with consulting on critical habitat under 

section 7 of the Act, economic impacts 

are not the primary reason for the 

exclusions we are proposing in this 

document. 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). Our critical habitat 

regulations require that at the time of 

publication of a proposed rule to 

designate critical habitat, the Secretary 

make available for public comment a 

draft economic analysis of the 

designation (85 FR 82376, December 18, 

2020). However, we have reviewed the 

2012 final economic analysis (IEc 2012) 

and determined that because the 

January Exclusions Rule has not gone 

into effect and we are not designating 

additional critical habitat in this rule 

(we are only proposing to exclude (i.e., 

remove) additional areas from critical 

habitat), the economic impact will 

simply be reduced and a new economic 

analysis is thus unnecessary. 

Further, we have determined that the 

exclusion of the Harvest Land Base 

lands from critical habitat for the 

northern spotted owl would not result 

in changes in management or 

conservation outcomes under section 7 

consultation for those lands. The BLM 

considered the critical habitat 

designation in revising their RMPs in 

2016, and the design and 

implementation of future projects will 

follow their management direction for 

each land use allocation as required by 

the RMPs. We analyzed the RMPs and 

concluded that the land use allocations 

and the management direction— 

including carefully designed timber 

harvest within the Harvest Land Base— 

would not jeopardize the owl’s 

continued existence, nor destroy or 

adversely modify its designated critical 

habitat. With the exclusions of the 

Harvest Land Base areas from critical 

habitat proposed here, the RMP land use 

allocations and management directions 

will continue to apply. The only change 

in section 7 outcomes as a result of 

these exclusions would be that BLM 

would no longer have to consult on 

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if there are no effects anticipated to the 

species. 

We note that during the public 

comment period on our prior proposed 

revised critical habitat rule (85 FR 

48487, August 11, 2020), the American 

Forest Resource Council (AFRC 2020) 

and other commenters 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. We contracted with IEc to 

review the Brattle report and provided 

a response to the report in the January 

15, 2021, final rule (86 FR 4820, pp. 

4825–4827). The Brattle report does not 

alter our assessment that because we are 

removing areas from designation (rather 

than adding them), no new economic 

analysis is needed. Because the entire 

2012 designation did not reach the 

threshold for economic significance 

under Executive Order 12866, these 

exclusions, which represent a reduction 

in the overall cost, also do not meet this 

threshold. 

During the development of a final 

revised designation, we will consider 

any additional economic impact 

information we receive during the 

public comment period (see DATES), 

and, therefore, additional areas not 

considered in this proposed rule may be 

excluded from the final critical habitat 

designation under section 4(b)(2) of the 

Act and our implementing regulations. 

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). In this document, we are not 

proposing to exclude any areas from the 

critical habitat designation on the basis 

of impacts on national security. 

However, during the development of a 

final rule we will consider any 

additional information received through 

the public comment period on the 

impacts of the proposed designation on 

national security or homeland security 

to determine whether any specific areas 

should be excluded from the final 

critical habitat designation under 

authority of section 4(a)(3) and our 

implementing regulations. 

Consideration of Other Relevant 

Impacts 

When identifying the benefits of 

inclusion of an area as designated 

critical habitat, we primarily consider 

the additional regulatory benefits that 

that area would receive due to the 

protection from destruction or adverse 

modification as a result of actions with 

a Federal nexus (that is, an activity or 

program authorized, funded, or carried 

out in whole or in part by a Federal 

agency), the educational benefits of 

mapping essential habitat for recovery 

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. When considering the 

benefits of exclusion, we consider, 

among other things, whether exclusion 

of a specific area is likely to result in 

conservation, or in the continuation, 

strengthening, or encouragement of 

partnerships. 

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, and, 

where a Federal nexus exists, increased 

habitat protection for northern spotted 

owls through the Act’s section 7(a)(2) 

mandate that Federal agencies insure 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. Additionally, continued 

implementation of an ongoing 

management plan for the area that 

provides conservation equal to or 

greater than a critical habitat 

designation would reduce the benefits 

of including that specific area in the 

critical habitat designation. 

We evaluate existing conservation 

plans when considering the benefits of 

inclusion. We consider a variety of 

factors, including, but not limited to, 

whether the plan is finalized; how it 

provides for the conservation of the 

essential physical or biological features; 

whether there is a reasonable 

expectation that the conservation 

management strategies, and actions 

contained in a management plan, will 

be implemented into the future; whether 

the conservation strategies in the plan 

are likely to be effective; and whether 

the plan contains a monitoring program 

or adaptive management to ensure that 

the conservation measures are effective 

and can be adapted in the future in 

response to new information. 

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. 

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 exclusion of an area from 

critical habitat will result in extinction, 

we will not exclude it from the 

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 data 

available at the time of the final 

designation, including information that 

we obtain during the comment period. 

If we receive credible information 

regarding the existence of a meaningful 

economic or other relevant impact 

supporting a benefit of exclusion, we 

will conduct an exclusion analysis for 

the relevant area or areas. We may also 

exercise the discretion to evaluate any 

other particular areas for possible 

exclusion. We may exclude an area from 

critical habitat if we determine that the 

benefits of excluding the area outweigh 

the benefits of including the area, 

provided the exclusion will not result in 

the extinction of this species. 

Proposed Exclusions 

We are proposing to exclude the 

following areas under section 4(b)(2) of 

the Act from the critical habitat 

designation for the northern spotted 

owl. Table 1, below, identifies the 

specific critical habitat units from the 

December 4, 2012, final rule (77 FR 

71876; codified at 50 CFR 17.95(b)), that 

we propose to exclude, at least in part, 

the approximate areas (ac, ha) of lands 

involved, and a brief summary of the 

rationale for the proposed exclusions. 

The Table 8 Addendum that follows 

displays this same information but in 

the format used in Table 8 in the 

December 4, 2012, final rule (77 FR 

71876, pp. 71948–71949). 


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TABLE 1—AREAS PROPOSED FOR EXCLUSION BY CRITICAL HABITAT UNIT

Unit Specific area 

Areas meeting the 

definition of critical 

habitat, 

in acres 

(hectares) 

Areas proposed for 

exclusion, in acres 

(hectares) 

Rationale for proposed exclusion 

1 .................... NCO 4 ................................... 179,745 (72,740) 1,840 (744) BLM Harvest Land Base. 

1 .................... NCO 5 ................................... 142,937 (57,845) 8,780 (3,553) BLM Harvest Land Base. 

2 .................... ORC 1 ................................... 110,657 (44,781) 1,280 (518) BLM Harvest Land Base. 

2 .................... ORC 2 ................................... 261,405 (105,787) 7,906 (3,199) BLM Harvest Land Base/Indian Lands. 

2 .................... ORC 3 ................................... 203,681 (82,427) 4,956 (2,006) BLM Harvest Land Base/Indian Lands.

2 .................... ORC 5 ................................... 176,905 (71,591) 14,998 (6,070) BLM Harvest Land Base. 

2 .................... ORC 6 ................................... 81,900 (33,144) 4,300 (1,740) BLM Harvest Land Base/Indian Lands. 

6 .................... WCS 1 .................................. 92,586 (37,468) 881 (356) BLM Harvest Land Base. 

6 .................... WCS 2 .................................. 150,105 (60,745) 1,083 (438) BLM Harvest Land Base. 

6 .................... WCS 3 .................................. 319,736 (129,393) 1,923 (778 BLM Harvest Land Base. 

6 .................... WCS 4 .................................. 379,130 (153,429) 6 (2) BLM Harvest Land Base. 

6 .................... WCS 5 .................................. 356,415 (144,236) 2 (<1) BLM Harvest Land Base. 

6 .................... WCS 6 .................................. 99,558 (40,290) 18,529 (7,498) BLM Harvest Land Base. 

8 .................... ECS 1 ................................... 127,801 (51,719) 16,622 (6,727) BLM Harvest Land Base. 

8 .................... ECS 2 ................................... 66,086 (26,744) 2,380 (963) BLM Harvest Land Base. 

9 .................... KLW 1 ................................... 147,326 (59,621) 14,887 (6,025) BLM Harvest Land Base/Indian Lands. 

9 .................... KLW 2 ................................... 148,929 (60,674) <1 (<1) BLM Harvest Land Base. 

9 .................... KLW 3 ................................... 143,862 (58,219) 1,656 (670) BLM Harvest Land Base. 

9 .................... KLW 4 ................................... 158,299 (64,061) 785 (318) BLM Harvest Land Base. 

9 .................... KLW 5 ................................... 31,085 (12,580) <1 (<1) BLM Harvest Land Base. 

10 .................. KLE 1 .................................... 242,338 (98,071) 30 (12) BLM Harvest Land Base/Indian Lands. 

10 .................. KLE 2 .................................... 101,942 (41,255) 29,958 (12,124) BLM Harvest Land Base/Indian Lands. 

10 .................. KLE 3 .................................... 111,410 (45,086) 48,334 (19,560) BLM Harvest Land Base. 

10 .................. KLE 4 .................................... 254,442 (102,969) 1 (<1) BLM Harvest Land Base. 

10 .................. KLE 5 .................................... 38,283 (15,493) 12,241 (4,954) BLM Harvest Land Base. 

10 .................. KLE 6 .................................... 167,849 (67,926) 11,403 (4,614) BLM Harvest Land Base. 

TABLE 8 ADDENDUM 1—ADDITIONAL LANDS PROPOSED FOR EXCLUSION FROM THE DESIGNATION OF CRITICAL HABITAT

UNDER SECTION 4(b)(2) OF THE ACT

Type of agreement Critical habitat 

unit State Landowner/agency Acres Hectares 

Resource Management Plan .......................... NCO ............... OR ................. BLM Harvest Land Base .... 10,620 4,298 

ORC ............... OR ................. BLM Harvest Land Base .... 27,866 11,277 

WCS .............. OR ................. BLM Harvest Land Base .... 22,438 9,080 

ECS ............... OR ................. BLM Harvest Land Base .... 19,002 7,690 

KLW ............... OR ................. BLM Harvest Land Base .... 13,508 5,46 

KLE ................ OR ................. BLM Harvest Land Base .... 91,184 36,901 

Tribal lands ..................................................... ORC ............... OR ................. CTCLUSI2 .......................... 5,575 2,256 

KLE ................ OR ................. CCBUTI3 ............................ 10,783 4,364 

KLW ............... OR ................. CCBUTI .............................. 3,821 1,546 

Total additional lands proposed for exclusion under section 4(b)(2) of the 

Act.

........................ ........................ ............................................. 204,797 82,879 

1This table is an addendum to table 8 of the December 4, 2012, final rule (77 FR 71876); table 8 appears at 77 FR 71948–71949. 

2 CTCLUSI is the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians. 

3 CCBUTI is the Cow Creek Band of Umpqua Tribe of Indians. 

4Total is slightly higher due to rounding of partial acres. 

We specifically solicit comments on 

the inclusion or exclusion of these areas 

from the critical habitat designation for 

the northern spotted owl (77 FR 71876, 

December 4, 2012), codified at 50 CFR 

17.95(b). These proposed exclusions are 

based on new information that has 

become available since the December 4, 

2012, critical habitat designation for the 

northern spotted owl, including the 

BLM’s 2016 revision to its RMPs for 

western Oregon (BLM 2016a, b) and the 

Western Oregon Tribal Fairness Act 

(Pub. L. 115–103). In the paragraphs 

below, we provide a detailed analysis of 

our consideration of these lands for 

exclusion under section 4(b)(2) of the 

Act. 

Exclusions Based on 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 covering the species 

in the area such as HCPs, safe harbor 

agreements, or candidate conservation 

agreements with assurances, or whether 

there are other conservation agreements 

and partnerships that would be 

encouraged by designation of, or 

exclusion from, critical habitat. In 

addition, we consider any Tribal forest 

management plans and partnerships and 

consider the government-to-government 

relationship of the United States with 


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Tribes. We also consider any social 

impacts that might occur because of the 

designation. 

Indian Lands 

Several Executive Orders, Secretarial 

Orders, and departmental policies 

address how we engage 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-togovernment basis. 

A joint Secretarial Order that applies 

to both the Service and the National 

Marine Fisheries Service (‘‘Services’’), 

Secretarial Order 3206, ‘‘American 

Indian Tribal Rights, Federal–Tribal 

Trust Responsibilities, and the 

Endangered Species Act’’ (June 5, 1997) 

(S.O. 3206), affirms that Tribes may 

participate fully in the listing process, 

including designation of critical habitat. 

The appendix to S.O. 3206 also states: 

‘‘In keeping with the trust 

responsibility, [the Services] shall 

consult with the affected Indian tribe(s) 

when considering the designation of 

critical habitat in an area that may 

impact tribal trust resources, triballyowned fee lands, or the exercise of tribal 

rights. 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 will always consider 

exclusions of Indian lands under section 

4(b)(2) of the Act prior to finalizing a 

designation of critical habitat, and will 

give great weight to Tribal comments in 

analyzing the benefits of exclusion. 

However, S.O. 3206 does not preclude 

us from designating Indian lands or 

waters as critical habitat, nor does it 

state that Indian lands or waters cannot 

meet the Act’s definition of ‘‘critical 

habitat.’’ We are directed by the Act to 

identify areas that meet the definition of 

‘‘critical habitat’’ (i.e., areas occupied at 

the time of listing that contain the 

essential physical or biological features 

that may require special management or 

protection and unoccupied areas that 

are essential to the conservation of a 

species), without regard to 

landownership. While S.O. 3206 

provides important direction, it 

expressly states that it does not modify 

the Secretaries’ statutory authority. 

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 by limiting the designation to other 

lands. However, on January 8, 2018, the 

Western Oregon Tribal Fairness Act 

(Pub. L. 115–103) was passed by 

Congress and signed by the President. 

This act mandated that certain lands 

managed by BLM be taken into trust by 

the United States for the benefit of the 

Cow Creek Band of Umpqua Tribe of 

Indians (CCBUTI) and the Confederated 

Tribes of Coos, Lower Umpqua, and 

Siuslaw Indians (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 have 

considered this new information and are 

now proposing these lands for exclusion 

under section 4(b)(2) of the Act, as 

explained below. 

Of the lands transferred in trust to the 

CCBUTI, 14,604 acres (5,910 hectares) 

are located within currently designated 

critical habitat. These lands will be 

managed under the Tribe’s Forest 

Resource Management Plan (CCBUTI 

2019) using a ‘‘continuous forest 

management’’ approach that provides 

for a continued supply of timber, a 

steady stream of income, and a 

reduction in the risk of wildfire and 

disease. The land within the CCBUTI 

conveyance is in the Klamath 

Physiographic Province, an area 

disproportionally impacted by fire. The 

objectives in the CCBUTI forest 

management plan addresses fire risk 

and disease concerns to alleviate the 

risk of wildfire. Of the lands transferred 

in trust to the CTCLUSI, 5,575 acres 

(2,256 hectares) are located within the 

critical habitat designation. The Tribe is 

developing a management plan for these 

recently transferred lands (Andringa 

2020, pers. comm.). We will continue to 

provide technical assistance to the 

Tribes on the conservation of 

endangered and threatened species and 

on the development and 

implementation of their forest 

management plans; however, these 

plans are not the basis of our proposal 

to exclude these lands from the critical 

habitat designation. 

In accordance with S.O. 3206 and 

other directives, we believe that fish, 

wildlife, and other natural resources on 

Indian lands may be more appropriately 

managed under Tribal authorities, 

policies, and programs than through 

Federal regulation where Tribal 

management addresses the conservation 

needs of listed species. Supporting 

Tribal management strengthens the 

government-to-government relationship 

essential to achieving our mutual goals 

of managing for healthy ecosystems 

upon which the viability of endangered 

and threatened species populations 

depend. Additionally, the Indian lands 

proposed for exclusion represent only 

0.21 percent of the current critical 

habitat designation. Although these 

lands contribute to the conservation of 

the northern spotted owl, we believe the 

conservation needs of the northern 

spotted owl can be achieved by limiting 

the designation to the other lands in the 

critical habitat designation. We also find 

that the benefit of our partnerships with 

these Tribal governments and our 

acknowledgment of Tribal sovereignty 

over managing these lands by excluding 

them from the critical habitat 

designation outweigh the conservation 

value of including these 20,179 acres 

(8,166 hectares) in the designation. 

Federal Lands 

O&C Lands—In general, our proposed 

exclusions of critical habitat for the 

northern spotted owl are focused on the 

Oregon and California Railroad 

Revested Lands (O&C lands), 

particularly those areas that have been 

identified primarily for commercial 

timber harvest under Federal resource 

management plans. 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) pursuant to its RMPs. 

BLM’s RMPs identify certain revested 

timberlands for commercial timber 

harvest. The opening statement of the 

O&C Act provides that these lands 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 


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watersheds, regulating stream flow, and 

contributing to the economic stability of 

local communities and industries, and 

providing recreational facilities.’’ The 

counties where O&C lands are located 

participate in a revenue-sharing 

program with the Federal Government 

based on commercial receipts (e.g., 

income from commercial timber 

harvest) generated on these Federal 

lands. 

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, 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, and a recovery plan for the 

northern spotted owl was completed (73 

FR 29471, May 21, 2008; p. 29472) and 

revised (76 FR 38575, July 1, 2011). 

These and other scientific reviews 

consistently recognized the need for 

large portions of the O&C forest to be 

managed for northern spotted owl 

conservation while also allowing for 

other uses of these lands, including 

timber harvest. 

BLM Harvest Land Base—Based on 

new information available since the 

publication of the December 4, 2012, 

revised critical habitat designation (77 

FR 71876), we are proposing to exclude 

from critical habitat 184,618 acres 

(74,650 hectares) of BLM lands where 

programmed timber harvest is planned 

to occur under the revised RMPs (BLM 

2016a, b), i.e., the ‘‘Harvest Land Base’’ 

that we describe in detail further below. 

Approximately 172,430 acres (69,779 

hectares) of this Harvest Land Base is 

O&C lands. 

In 2011, the Service revised the 

recovery plan for the northern spotted 

owl (see 76 FR 38575, July 1, 2011), and 

the revised plan recommended 

‘‘continued application of the reserve 

network of the 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’’ (USFWS 

2011, p. II–3). On December 4, 2012, the 

Service published a final rule revising 

the northern spotted owl critical habitat 

designation (77 FR 71876), and in 2016, 

BLM revised its RMPs for western 

Oregon, resulting in two separate plans 

(BLM 2016a, b). BLM’s 2016 revision of 

its RMPs fully considered the 2011 

recovery plan recommendation. 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 RMPs provide direction for the 

management of approximately 2.5 

million acres (1 million hectares) of 

BLM-administered lands, for the 

purposes of producing a sustained yield 

of timber, contributing to the recovery of 

endangered and threatened species, 

providing clean water, restoring fireadapted ecosystems, and providing for 

recreation opportunities (BLM 2016a, p. 

20). The management direction 

provided in the RMPs is used to develop 

and implement specific projects and 

actions during the life of the plans. 

The RMP revisions assigned land use 

allocations (LUAs) across BLM-managed 

lands in western Oregon; the LUAs 

define areas where specific activities are 

allowed, restricted, or excluded. The 

BLM LUAs include Late Successional 

Reserves (LSR), Congressionally 

Reserved lands, District Designated 

Reserves, and Riparian Reserves 

(collectively considered ‘‘reserve’’ 

LUAs) and Eastside Management Area 

and Harvest Land Base (BLM 2016a, pp. 

55–74). 

Reserve LUAs comprise 74.6 percent 

(1,847,830 acres (747,790 hectares)) of 

the acres of BLM land within LUAs 

(FWS 2016, p. 9). These lands are 

managed for various purposes, 

including preserving wilderness areas, 

natural areas, and structurally complex 

forest; recreation management; 

maintaining facilities and infrastructure; 

some timber harvest and fuels 

management; and conserving lands 

along streams and waterways. Of these 

lands, 51 percent (948,466 acres 

(383,830 hectares)) are designated as 

LSR, 64 percent of which (603,090 acres 

(244,061 hectares)) are located within 

the critical habitat designation for the 

northern spotted owl (FWS 2016, p. 9). 

The management objectives on LSRs are 

designed to promote older, structurally 

complex forest and to promote or 

maintain habitat for the northern 

spotted owl and marbled murrelet 

(Brachyramphus marmoratus), although 

some timber harvest of varying intensity 

is allowed. The recovery plan for the 

northern spotted owl relies on the LSR 

network as the foundation for northern 

spotted owl recovery on Federal lands 

(FWS 2011, p. III–41). The Service 

found that the anticipated level of 

timber harvest in LSRs under these 

RMPs was not likely to jeopardize the 

species or destroy or adversely modify 

critical habitat (FWS 2016, pp. 700– 

703). 

The Harvest Land Base allocation 

comprises 19 percent (469,215 acres 

(189,884 hectares)) of the overall LUAs 

and is where the majority of 

programmed timber harvest will occur 

(FWS 2016, p. 9; BLM 2016a, pp. 59– 

63). Of these acres, 39 percent (184,618 

acres (74,650 hectares)) are located 

within the critical habitat designation 

for the northern spotted owl. Over 90 

percent of these acres (172,430 acres 

(69,779 hectares)) are located on O&C 

lands. Under the management direction 

for the Harvest Land Base, timber 

harvest intensity varies based on the 

sub-allocation (moderate intensity 

timber area, light intensity timber area, 

or uneven-aged timber area) within the 

Harvest Land Base (BLM 2016a, pp. 59– 

63). 

The management direction specific to 

the northern spotted owl (BLM 2016a, p. 

100) applies to all LUAs designated in 

the RMPs. This direction provides for 

the management of habitat to facilitate 

movement and survival between and 

through large blocks of northern spotted 

owl nesting and roosting habitat. 

We completed a programmatic section 

7 consultation on the RMPs in 2016, 

under the assumption that BLM will 

implement actions consistent with the 

RMPs over an analytical timeframe of 50 

years (FWS 2016, p. 2). This approach 

allowed for the broad-scale evaluation 

of BLM’s program to ensure that the 

management direction and objectives of 

the program are consistent with the 

conservation of listed species, while 

also providing a reliable mechanism for 

site-specific consultation at the steppeddown, project-level scale. The adequacy 

of this approach for the conservation of 

listed species is further sustained by the 

requirement for the action agency to 

reinitiate consultation under certain 

circumstances. 

Reinitiation of the programmatic 

section 7 consultation may occur at any 

time during the course of program 

implementation if: (1) The amount or 

extent of incidental take is exceeded; (2) 

new information reveals that the effects 

of the action may affect listed species or 

critical habitat in a manner or to an 

extent not previously considered; (3) the 

identified action is subsequently 

modified in a manner that causes an 

effect to the listed species or critical 

habitat that was not considered in the 

biological opinion; or (4) a new species 


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is listed or critical habitat designated 

that may be affected by the identified 

action, consistent with our August 27, 

2019, final rule revising portions of our 

regulations that implement section 7 of 

the Act (see 84 FR 44976, pp. 45017– 

45018). The biological opinion on the 

RMPs also describes some additional 

specific conditions concerning northern 

spotted owl demographics and barred 

owl management implementation under 

which reinitiation of consultation 

would be necessary (FWS 2016, pp. 

703–705). 

BLM incorporated key aspects of the 

recovery plan for the northern spotted 

owl into its RMPs, consistent with its 

authorities and resources. Important 

features of BLM’s approach include: 

• Overall impacts to extant northern 

spotted owls are minimized. Take of 

northern spotted owl territorial pairs or 

resident singles from timber harvest will 

be avoided to the greatest possible 

extent during the first 5 to 8 years of the 

RMPs as the barred owl removal 

experiment (FWS 2013) is conducted 

and evaluated. Subsequent effects to 

northern spotted owls would be meted 

out over time in the Harvest Land Base 

and minimized in other land use 

allocations. 

• If the barred owl removal 

experiment leads to a longer term barred 

owl management program, BLM will 

support such a program on the lands 

they manage. Barred owl management 

would help offset the adverse effects 

associated with the RMPs and is 

expected to result in a net positive 

impact on the recovery of northern 

spotted owls when considering the 

overall effect of the RMPs over the next 

50 years. 

• There will be a net increase in 

suitable 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. 

• As individual projects are proposed 

under these RMPs, BLM will consult at 

the project-specific level with the 

Service as necessary, providing 

assurances that jeopardy and adverse 

modification will be avoided and an 

opportunity to further minimize impacts 

to northern spotted owls as on-theground actions are designed and 

implemented. 

• BLM will reinitiate section 7 

consultation with the Service if the 

population projections for the northern 

spotted owl described in the biological 

opinion on the RMPs are not realized 

within the timeframes anticipated in the 

consultation. 

For these reasons, as described in its 

biological opinion issued to the BLM 

(FWS 2016, pp. 4–5), the Service 

expects an overall net improvement in 

northern spotted owl populations on 

BLM lands under the RMPs, including 

when taking into account any take or 

adverse impacts to northern spotted 

owls due to timber harvest, fuels 

management, recreation, and other 

activities occurring under the RMPs. 

Our analysis of the impacts on the lands 

within the Harvest Land Base 

recognized that while this LUA was not 

intended to be relied upon for 

demographic support of northern 

spotted owls, the management direction 

under the RMPs includes provisions 

that would contribute to the further 

development of late-successional 

habitat, including additional critical 

habitat PBFs, over time (FWS 2016, p. 

553; 77 FR 71876, December 4, 2012, 

pp. 71906–71907). Although latesuccessional habitat within the Harvest 

Land Base may not remain on the 

landscape for the long term, the 

presence of northern spotted owl habitat 

within the Harvest Land Base in the 

short term would assist in northern 

spotted owl movement (PBF 4) across 

the landscape and could potentially 

provide refugia from barred owls while 

habitat continues to mature into more 

complex habitat and develop additional 

PBFs over time in reserved LUAs (FWS 

2016, p. 553; 77 FR 71876, December 4, 

2012; pp. 71906–71907). 

The spatial configuration of reserves; 

the management of those reserves to 

retain, promote, and develop northern 

spotted owl habitat; and the 

management and scheduling of timber 

sales within the Harvest Land Base are 

all expected to provide for northern 

spotted owl dispersal between 

physiographic provinces and between 

and among large blocks of habitat 

designed to support clusters of 

reproducing northern spotted owls 

(FWS 2016, p. 698). In particular, BLM 

refined their preferred alternative 

management approach to minimize the 

creation of strong barriers to northern 

spotted owl east-west movement and 

survival between the Oregon Coast 

Range and Oregon Western Cascades 

physiographic provinces, and northsouth movement and survival between 

habitat blocks within the Oregon Coast 

Range province, by augmenting its 

allocation to LSRs in those areas (BLM 

2016c, p. 17). Therefore, BLM-planned 

timber harvest during the interim period 

while a barred owl management strategy 

is considered is not expected to 

substantially influence the distribution 

of northern spotted owls at the local, 

action area, or rangewide scales. 

The area included in the 2012 critical 

habitat designation (77 FR 71876) was 

increased from previous designations in 

part to account for and buffer localized 

impacts to habitat as a consequence of 

natural (e.g., wildfire) and humancaused disturbance (e.g., timber 

harvest). That is, we anticipate some 

loss of habitat within individual critical 

habitat units and, for the human-caused 

impacts, have worked closely with land 

managers to ensure these impacts are 

consistent with the long-term recovery 

of the species. Of the designated critical 

habitat on BLM-managed lands in 

western Oregon addressed by the RMPs, 

15 percent of critical habitat is 

designated on the Harvest Land Base 

and 85 percent is designated on other 

LUAs. The Harvest Land Base portion of 

the BLM landscape is expected to 

provide less contribution to northern 

spotted owl critical habitat over time, 

while the reserve portions of the BLM 

lands will provide the necessary 

contributions for northern spotted owl 

conservation (FWS 2016, p. 554). 

Although the loss of some or all the 

PBFs within northern spotted owl 

critical habitat within the Harvest Land 

Base is an adverse effect and cannot be 

discounted, as we noted in the 2016 

biological opinion on the RMPs (FWS 

2016, p. 691), the protection, ingrowth, 

and further development of PBFs within 

northern spotted owl critical habitat in 

reserve LUAs are expected to improve 

the function of all critical habitat units 

within the areas covered by the RMPs. 

The reserve LUAs have the additional 

advantage of improving critical habitat 

conditions in areas where barred owl 

management is most likely to be 

implemented. Barred owl management, 

if implemented, would be most likely to 

occur where we anticipate the future 

core of the northern spotted owl 

population to reside and where critical 

habitat can provide the greatest value. 

Additionally, we noted that the 

functionality of the critical habitat 

network on BLM-managed lands and 

rangewide was anticipated to improve, 

in part as the land management agencies 

updated their land management plans to 

incorporate recommendations of the 

revised recovery plan for the northern 

spotted owl (USFWS 2011, p. II–3). 

Accordingly, we found in our 2016 

biological opinion on the RMPs (FWS 

2016, p. 700) that, even with the 

projected timber harvest in the Harvest 

Land Base, the management direction 

implemented under the RMPs is fully 

consistent with the revised recovery 

plan (USFWS 2011) and would not 

appreciably diminish the conservation 

value of, or adversely modify, critical 

habitat (FWS 2016, p. 702). The 

conservation measures put in place by 

BLM’s 2016 RMPs, including 


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management direction for the LUAs and 

commitments to support barred owl 

research and management, are expected 

to result in a net increase in northern 

spotted owl conservation compared to 

the status quo. Therefore, we find that 

excluding the Harvest Land Base acres 

from the critical habitat designation, as 

proposed in this document, would not 

reduce the overall conservation of the 

northern spotted owl and its habitat 

provided that the conservation measures 

in the RMPs are implemented as 

planned. We thus find that these 

exclusions would not result in 

extinction of the species. 

BLM will continue to rely on the 

effectiveness monitoring established 

under the NWFP for the northern 

spotted owl and late-successional and 

old growth ecosystems. Monitoring will 

assess status and trends in northern 

spotted owl populations and habitat to 

evaluate whether the implementation of 

the RMPs is reversing the downward 

trend of populations and maintaining 

and restoring habitat necessary to 

support viable owl populations (BLM 

2016a). 

In conclusion, the revised BLM RMPs 

provide for the conservation of the 

essential PBFs throughout the reserve 

LUAs and mete out the impacts to 

northern spotted owl habitat in the 

Harvest Land Base over time while the 

habitat conditions in the reserve LUAs 

improve through ingrowth. Based on 

our analysis in the biological opinion on 

the RMPs (FWS 2016, pp. 700–703) and 

the BLM’s conclusions in its records of 

decision adopting the RMPs, the 

conservation strategies in the RMPs are 

likely to be effective. These 

conservation measures will continue to 

be in effect regardless of whether the 

Harvest Land Base areas are designated 

as critical habitat for the northern 

spotted owl. 

As described above, these Harvest 

Land Base areas provide a relatively low 

level of short-term conservation value. 

Retaining them as designated critical 

habitat, which suggests that they have a 

conservation value similar or equal to 

that of the LSR lands, may send a 

confusing message to the public and 

local land managers. Also, all Federal 

actions in these Harvest Land Base areas 

that may affect currently designated 

critical habitat would require section 7 

consultation. These consultations 

provide no incremental conservation 

benefit over what is already provided 

for in the RMPs and thus would not be 

an efficient use of limited consultation 

and administrative resources. The 

benefits of including Harvest Land Base 

areas within critical habitat for the 

northern spotted owl are, therefore, 

limited relative to the conservation 

value provided by the RMPs. 

Additionally, actions within the Harvest 

Land Base that may affect suitable 

northern spotted owl habitat will still be 

subject to section 7 consultation to 

insure that actions in those areas are not 

likely to jeopardize the continued 

existence of the species. Given these 

provisions and assurances, in 

conjunction with all of the other 

considerations discussed above, we 

conclude that the benefits of including 

these Harvest Land Base areas in critical 

habitat are relatively negligible. 

On the other hand, some appreciable 

benefit could be realized by excluding 

Harvest Land Base areas 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. 

Excluding Harvest Land Base lands from 

the northern spotted owl critical habitat 

designation reduces the burden of 

additional section 7 consultation for 

these lands that serve primarily to meet 

BLM’s timber sale volume objectives. 

Therefore, excluding these Harvest Land 

Base lands from the critical habitat 

designation would provide some 

incremental benefit by clarifying the 

primary role of these lands in relation 

to northern spotted owl conservation, 

and by eliminating any unnecessary 

regulatory oversight. These benefits of 

exclusion outweigh the relatively 

minimal benefit of retaining these lands 

as critical habitat. 

We note that there is ongoing 

litigation challenging BLM’s 

management of O&C lands under the 

2016 RMPs. One district court has 

concluded the 2016 RMPs (including 

their consideration of the Act) do not 

conflict with the O&C Act, see Pac. 

Rivers v. U.S. Bureau of Land Mgmnt., 

6:16–cv–01598–JR, 2019 WL 1232835 

(D. Or. Mar.15, 2019), aff’d sub nom. 

Rivers v. Bureau of Land Mgmt., 815 

Fed. App’x 107 (9th Cir. 2020). In a 

separate proceeding, the U.S. District 

Court for the District of Columbia 

(D.D.C.), in a consolidated set of cases, 

found that the 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. 

Hammond, 422 F. Supp. 3d 184 (D.D.C. 

2019). The parties have briefed the court 

on the appropriate remedy, but the court 

has not yet issued an order. 

We considered this information in 

developing this proposed rule. This 

proposed rule is based on the 2016 

RMPs as they are, and not as they may 

be modified in the future. While the 

litigation outcomes of the cases 

challenging the BLM’s management of 

O&C lands are not certain and we will 

not speculate on the ultimate outcomes 

of the litigation, we acknowledge the 

potential for future reductions in the 

BLM’s reserves and changes in the 

Harvest Land Base. As discussed above, 

in the consolidated D.D.C. cases, the 

court has already found that the BLM 

violated the O&C Act by excluding 

portions of O&C timberlands from 

sustained yield timber harvest. 

Consequently, the Harvest Land Base 

might change as a result of this litigation 

by remedy order of the court either 

with, or without, land use planning 

undertaken by BLM. 

National Forest System Lands—We 

evaluated whether exclusions from the 

critical habitat designation under 

section 4(b)(2) of the Act should be 

considered within the relatively small 

amount of O&C lands managed as 

National Forest System lands by USFS. 

Our preliminary analysis of potential 

areas to consider for exclusion revealed 

small areas of lower quality interspersed 

with higher quality habitat scattered 

across and imbedded within critical 

habitat subunits. Therefore, in 

coordination with USFS, we did not 

identify any National Forest System 

lands where we believed the benefits of 

exclusion outweighed the benefits of 

inclusion at the critical habitat unit 

mapping scale. In other words, our 

preliminary view is that formally 

excluding these lower quality areas from 

critical habitat would require significant 

mapping and analytical effort, and that 

it is unclear what economic or other 

administrative benefit might be derived 

from this process. 

To date, we have found all proposed 

timber harvest under the NWFP on 

National Forest System lands in critical 

habitat to: (1) Be compatible with 

northern spotted owl conservation, and 

(2) not destroy or adversely modify 

critical habitat. Therefore, we believe 

the ongoing section 7 consultation 

processes with USFS under its current 

land management plans continue to be 

the best way to evaluate effects of USFS 

actions on critical habitat function. We 

will continue to work closely with 

USFS to address the conservation needs 

of the northern spotted owl as the 

agency updates its various forest plans. 

We invite comments specifically 

addressing National Forest System lands 

and the reasons why we should or 

should not exclude habitat on these 


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lands as ‘‘critical habitat’’ under section 

4(b)(2) of the Act. Comments should 

address the related benefits of including 

or excluding specific areas; whether the 

benefits of exclusion outweigh those of 

inclusion; and whether the exclusion 

will not result in the extinction of the 

species. Additionally, comments should 

address any probable economic, 

national security, or other relevant 

impacts of the designation on areas 

recommended for consideration for 

exclusion. 

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. 

(2) The species for which critical 

habitat is designated is a covered 

species in the HCP. 

(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 and 

any section 10(a)(1)(B) permits 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 proposing additional State lands 

for exclusion from the critical habitat 

designation for the northern spotted 

owl. We may revisit consideration of 

section 4(b)(2) exclusions on State lands 

if and when the HCPs have been 

adopted and we have issued section 

10(a)(1)(B) permits. 

Required Determinations 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you believe that we have not met 

these requirements, send us comments 

by one of the methods listed in 

ADDRESSES. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, the sections where you believe 

lists or tables would be useful, etc. 

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 proposed rule as a significant rule. 

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 proposed 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 that 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 revised 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 

consistent with 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 


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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. It follows that only 

Federal action agencies would be 

directly regulated if we adopt the 

proposed critical habitat designation. 

There is no requirement under the RFA 

to evaluate the potential impacts to 

entities not directly regulated. 

Moreover, Federal agencies are not 

small entities. Therefore, because no 

small entities would be directly 

regulated by this rulemaking, the 

Service certifies that, if made final as 

proposed, this revised critical habitat 

designation will not have a significant 

economic impact on a substantial 

number of small entities. Additionally, 

in this document, we are proposing to 

remove areas from the northern spotted 

owl’s critical habitat designation, thus 

reducing regulatory impacts for affected 

Federal agencies. 

In summary, we have considered 

whether the proposed 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, if made 

final, this proposed revised critical 

habitat designation will not have a 

significant economic impact on a 

substantial number of small business 

entities. Therefore, an initial regulatory 

flexibility analysis is not required. 

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. Therefore, this 

action is not a significant energy action, 

and 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 finding: 

(1) This proposed rule would 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.’’ 

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 proposed 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 

of a critical habitat designation 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 affected 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 affected by a designation 

decision because they receive Federal 

assistance or participate in a voluntary 

Federal aid program, the Unfunded 

Mandates Reform Act would not apply, 

nor would such a decision shift the 

costs of the large entitlement programs 

listed above onto State governments. 

Again, the proposed decision here 

would remove areas from designation. 

(2) We do not believe that this rule 

would significantly or uniquely affect 

small governments because we are 

proposing only exclusions from the 

northern spotted owl’s critical habitat 

designation; we are not proposing to 

designate 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 

revising designated critical habitat for 

the 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 this 

proposed revision of the designation of 

critical habitat for the northern spotted 

owl, and it concludes that, if adopted, 

this revised designation of critical 

habitat does not pose significant takings 

implications for lands within or affected 

by the designation. Again, the proposed 

decision here would remove areas from 

designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this proposed rule does 

not have significant federalism effects. 


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A federalism summary impact statement 

is not required. 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, the proposed 

rule does not have substantial direct 

effects either on the States, or on the 

relationship between the Federal 

Government and the States, or on the 

distribution of powers and 

responsibilities among the various 

levels of government. As noted above, 

the proposed decision here would 

remove areas from designation. 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

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 proposing only 

exclusions from the northern spotted 

owl’s critical habitat designation; we are 

not proposing to designate 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 have proposed revising 

designated critical habitat in accordance 

with the provisions of the Act. To assist 

the public in understanding the habitat 

needs of the species, 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 proposing 

any changes to those elements in this 

document. The areas we are proposing 

for exclusion from the designated 

critical habitat are described in this 

document 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. 

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 (see Catron Cty. 

Bd. of Comm’rs, New Mexico v. U.S. 

Fish & Wildlife Serv., 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). 

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 and that Indian land 

occurs within the areas designated as 

critical habitat for the northern spotted 

owl. We will continue to work with 

Tribal entities during the development 

of a final rule for the revised designation 

of 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 Oregon Fish 

and Wildlife Office (see FOR FURTHER

INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the Oregon 

Fish and Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Authority 

This action is authorized under 16 

U.S.C. 1531–1544. 

Martha Williams, 

Principal Deputy Director, Exercising the 

Delegated Authority of the Director, U.S. Fish 

and Wildlife Service. 

[FR Doc. 2021–15414 Filed 7–19–21; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 210510–0103] 

RIN 0648–BI08 

Atlantic Highly Migratory Species; 

Atlantic Bluefin Tuna Fisheries 

Management; Extension of Comment 

Period 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; extension of 

comment period. 

SUMMARY: On May 21, 2021, NMFS 

published the proposed rule for Draft 

Amendment 13 to the 2006 

Consolidated Highly Migratory Species 

(HMS) Fishery Management Plan (FMP) 

to modify management measures 

applicable to the incidental and directed 

bluefin fisheries. In the proposed rule, 

NMFS announced a 60-day comment 

period ending on July 20, 2021. During 

a public webinar, the Blue Water 

Fishermen’s Association requested that 

NMFS extend the comment period to 

provide additional opportunities for the 

public and other interested parties to 

consider and comment on the proposed 

measures and related analyses. NMFS is 

extending the comment period for this 

action until September 20, 2021. NMFS 

will consider comments received on the 

proposed rule in determining whether 


khammond on DSKJM1Z7X2PROD with PROPOSALS