Federal Register, Volume 73 Issue 148 (Thursday, July 31, 2008)

[Federal Register Volume 73, Number 148 (Thursday, July 31, 2008)]
[Proposed Rules]
[Pages 44678-44701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17343]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2008-0079; 92210-1117-0000-FY08-B4]
RIN 1018-AW18

Endangered and Threatened Wildlife and Plants; Revised Critical
Habitat for the Marbled Murrelet

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
revise designated critical habitat for marbled murrelet (Brachyramphus
marmoratus marmoratus) under the Endangered Species Act of 1973, as
amended (Act). On May 24, 1996, we designated 3,887,800 ac (ac)
(1,573,340 hectares (ha)) as critical habitat for the marbled murrelet
in Washington, Oregon, and California. We are proposing to revise
currently designated critical habitat for the marbled murrelet by
removing approximately 254,070 ac (102,820 ha) in northern California
and Oregon from the 1996 designation, based on new information
indicating that these areas do not meet the definition of critical
habitat. This action, if adopted in its entirety, would result in a
revised designation of approximately 3,633,800 ac (1,470,550 ha) as
critical habitat for the marbled murrelet. In this rule, we are further
proposing, under the Act, a taxonomic revision of the scientific name
of the marbled murrelet from Brachyramphus marmoratus marmoratus to
Brachyramphus marmoratus.

DATES: We will accept comments received or postmarked on or before
September 29, 2008. We must receive requests for public hearings in
writing at the address shown in the ADDRESSES section by September 15,
2008.

ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: RIN 1018-AW18; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington,
VA 22203.
We will not accept e-mail or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).

FOR FURTHER INFORMATION CONTACT: Ken Berg, Field Supervisor, U.S. Fish
and Wildlife Service, Western Washington Fish and Wildlife Office, 510
Desmond Drive SE, Suite 102, Lacey, WA 98503-1273, telephone 360-753-
9440, facsimile 360- 753-9008; Paul Henson, Field Supervisor, U.S. Fish
and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th
Avenue, Suite 100, Portland, OR 97266, telephone 503-231-6179,
facsimile 503-231-6195; or Michael Long, Field Supervisor, U.S. Fish
and Wildlife Service, Arcata Fish and Wildlife Office, 1655 Heindon
Road, Arcata, CA 95521, telephone 707-822-7201, facsimile 707-822-8411.
If you use a telecommunications device for the deaf (TDD), call the
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we request
comments or suggestions on this proposed rule. We particularly seek
comments concerning:
(1) The reasons why we should or should not revise currently
designated critical habitat for the marbled murrelet by removing
254,070 ac (102,820 ha) from the 1996 designation, based on new
information that is the best available information indicating that
these areas do not meet the definition of critical habitat;
(2) Specific information on the amount and distribution of marbled
murrelet habitat;
(3) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed critical habitat revision, and in
particular, any impacts on small entities;
(4) Our proposal to revise 50 CFR 17.11 to adopt the taxonomic
clarification for the marbled murrelet to reflect the change from
Brachyramphus marmoratus marmoratus to Brachyramphus marmoratus; and
(5) Whether we could improve or modify our approach to revising
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
accept comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section. Finally, we will not consider hand-delivered
comments that we do not receive, or mailed comments that are not
postmarked, by the date specified in the DATES section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If you provide
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.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment during normal business hours at the U.S. Fish and Wildlife
Service, Western Washington Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT). Maps of the proposed revised critical habitat are
also available on the Internet at http://www.fws.gov/westwafwo/.

Background

The final rule designating critical habitat for the marbled
murrelet was published in the Federal Register on May 24, 1996 (61 FR
26256), and has been posted under the ``Supporting Documents'' section
for this docket in the Federal eRulemaking Portal: http://www.regulations.gov at Docket Number FWS-R1-ES-2008-0079. It is our
intent to discuss only those topics directly

[[Page 44679]]

relevant to the proposed revision of critical habitat in this proposed
rule.
The marbled murrelet is a small seabird of the Alcidae family. The
marbled murrelet's breeding range extends from Bristol Bay, Alaska,
south to the Aleutian Archipelago; northeast to Cook Inlet, Kodiak
Island, Kenai Peninsula and Prince William Sound; south along the coast
through the Alexander Archipelago of Alaska, British Columbia,
Washington, and Oregon; to northern Monterey Bay in central California.
Birds winter throughout the breeding range and occur in small numbers
off southern California. Marbled murrelets spend most of their lives in
the marine environment where they forage in near-shore areas and
consume a diversity of prey species, including small fish and
invertebrates. In their terrestrial environment, the presence of
platforms (large branches or deformities) used for nesting is the most
important characteristic of their nesting habitat. Marbled murrelet
habitat use during the breeding season is positively associated with
the presence and abundance of mature and old-growth forests, large core
areas of old-growth, low amounts of edge habitat, reduced habitat
fragmentation, proximity to the marine environment, and forests that
are increasing in stand age and height.

Previous Federal Actions

For additional information on previous Federal actions concerning
marbled murrelet, refer to the final listing rule published in the
Federal Register on October 1, 1992 (57 FR 45328), and the final rule
designating critical habitat published in the Federal Register on May
24, 1996 (61 FR 26256). In the final critical habitat rule, we
designated 3,887,800 ac (1,573,340 ha) of critical habitat in 32 units
on Federal and non-Federal lands. On September 24, 1997, we completed
the Recovery Plan for the marbled murrelet in Washington, Oregon, and
California (USFWS 1997). On January 13, 2003, we entered into a
settlement agreement with the American Forest Resource Council and the
Western Council of Industrial Workers, whereby we agreed to review the
marbled murrelet critical habitat designation and make any revisions
deemed appropriate after a revised consideration of economic and any
other relevant impacts of designation. On April 21, 2003, we published
a notice initiating a 5-year review of the marbled murrelet (68 FR
19569), and published a second information request for the 5-year
review on July 25, 2003 (68 FR 44093). The 5-year review evaluation
report was finished in March 2004 (McShane et al. 2004), and the 5-year
review was completed on August 31, 2004. On September 12, 2006, we
published a proposed revision to critical habitat for the marbled
murrelet, which included adjustments to the original designation and
proposed several exclusions under section 4(b)(2) of the Act (71 FR
53838). On June 26, 2007, we published a notice of availability of a
draft economic analysis (72 FR 35025) related to the September 12,
2006, proposed critical habitat revision (71 FR 53838). On March 6,
2008, we published a notice in the Federal Register (73 FR 12067)
stating that the critical habitat for marbled murrelet should not be
revised at that time, which concluded our obligations under the
settlement agreement.
We found that the proposed revision to marbled murrelet critical
habitat should not be made due to uncertainties regarding Bureau of
Land Management (BLM) revisions to its District Resource Management
Plans in western Oregon. While the BLM is still revising its District
Resource Management Plans in western Oregon, we have determined that
there are a few areas that, due to new information that is the best
available information, we believe do not meet the definition of
critical habitat. Therefore, we are proposing the revisions discussed
below to the 1996 critical habitat designation.

Taxonomy

Two subspecies of the marbled murrelet were previously recognized,
the North American murrelet (Brachyramphus marmoratus marmoratus) and
the Asiatic murrelet (B. marmoratus perdix). New published information
suggests that the Asiatic murrelet is a distinct species (Friesen et
al. 1996, 2005), and the American Ornithologists' Union officially
recognized the long-billed murrelet (B. perdix) and the marbled
murrelet (B. marmoratus) as distinct species in the ``Forty-first
Supplement to the Checklist of North American Birds'' (American
Ornithologists' Union 1997). Therefore, in this rule we are proposing
to revise 50 CFR 17.11 to adopt the taxonomic clarification for the
marbled murrelet to reflect the change from Brachyramphus marmoratus
marmoratus to Brachyramphus marmoratus.

Critical Habitat

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(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 a
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered species or threatened species to the point at which the
measures provided under the Act are no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing activities that result in the destruction or adverse
modification of critical habitat. Section 7 of the Act requires
consultation on Federal actions that may affect critical habitat. The
designation of critical habitat does not affect land ownership or
establish a refuge, wilderness, reserve, preserve, or other
conservation area. Such designation does not allow the government or
public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by the
landowner. Where the landowner seeks or requests Federal agency funding
or authorization of an activity that may affect a listed species or
critical habitat, the consultation requirements of section 7 would
apply. However, even in the event of a destruction or adverse
modification finding, the landowner's obligation is not to restore or
recover the species, but to implement reasonable and prudent
alternatives to avoid destruction or adverse modification of critical
habitat.
For inclusion in a critical habitat designation, habitat within the
geographical area occupied by the species at the time it was listed
must contain features that are essential to the conservation of the
species. Critical habitat designations identify to the extent known
using the best scientific data available, habitat areas that provide
essential life cycle needs of the species (areas on which are found the
primary constituent elements, as defined at 50 CFR 424.12(b)). Occupied
habitat that contains features essential to the conservation of the
species meets the definition of critical habitat only if those features
may require special management considerations or

[[Page 44680]]

protection. Under the Act, we can designate unoccupied areas as
critical habitat only when we determine that the best available
scientific data demonstrate that the designation of that area is
essential to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial 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 we are determining which areas should be proposed as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include 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, or other unpublished materials and expert opinion or
personal knowledge.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that designation of
critical habitat may not include allofthe habitat areas that we may
eventually determine, based on scientific data not now available to the
Service, 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 required for
recovery of the species.
Areas that support populations, but are outside the critical
habitat designation, may continue to be subject to conservation actions
we implement under section 7(a)(1) of the Act. They are also subject to
the regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available scientific
information at the time of the agency action. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. 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 to these planning efforts calls
for a different outcome.

Methods

As required by section 4(b)(2) of the Act, we use the best
scientific data available to determine areas occupied at the time of
listing that contain the features essential to the conservation of the
marbled murrelet. On April 21, 2003, we published a notice initiating a
5-year review of the marbled murrelet (68 FR 19569), and on July 25,
2003, we published a request for additional information related to that
review (68 FR 44093). An evaluation report summarizing the biological,
ecological, and population information on the marbled murrelet was
completed in March 2004 (McShane et al. 2004). That report also
evaluated current threats and how they may have changed since the
species was listed. The 5-year status review was completed on August
31, 2004. We also reviewed the scientific data and other information
that was used to finalize the 1996 critical habitat designation, which
included research published in peer-reviewed articles, agency reports,
unpublished data, and various Geographic Information System (GIS) data
layers (e.g., land cover type information, land ownership information,
topographic information). We reviewed the conservation needs of the
marbled murrelet described in the recovery plan (USFWS 1997), and
considered new scientific information and data that were available from
State, Federal, and Tribal agencies, as well as academia and private
organizations.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and the
regulations at 50 CFR 424.12(b), in determining which areas occupied at
the time of listing to propose as critical habitat, we consider the
physical and biological features that are essential to the conservation
of the species to be the primary constituent elements laid out in the
appropriate quantity and spatial arrangement for conservation of the
species. These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
We derive the specific PCEs required for the marbled murrelet from
the biological needs of the species as described in the Background
section of the final rule designating critical habitat for the marbled
murrelet. The PCEs identified in the May 24, 1996, final critical
habitat designation (61 FR 26254) have not been revised for purposes of
this proposal, and remain applicable to this proposed revision of
critical habitat for the marbled murrelet.

Criteria Used To Identify Critical Habitat

The criteria used to identify critical habitat areas described in
the May 24, 1996, Federal Register remain applicable to this proposed
revision of critical habitat for the marbled murrelet. These include
suitable nesting habitat, information on presence/absence and
occupancy, proximity to marine foraging habitat, large contiguous
blocks of nesting habitat, rangewide distribution, and adequacy of
existing protection and management (61 FR 26265).

Summary of Changes From Previously Designated Critical Habitat

Approximately 254,070 ac (102,820 ha) of critical habitat that was
designated in the May 24, 1996, final rule is being proposed for
removal under this revision:
(1) Critical habitat boundaries in southern Oregon and northern
California would be revised based on extensive studies demonstrating
that the distribution of likely nesting birds is not as far inland as
delineated in 1996. Approximately 191,370 ac (77,450 ha) of critical
habitat would be removed from the designation based on this new
information;
(2) Approximately 62,700 ac (25,370 ha) of critical habitat
designated farther than 35 miles (mi) (56.3 kilometers (km)) from the
coast would be removed in Douglas and Lane counties, Oregon. These
areas do not meet the criteria used to identify critical habitat in the
1996 designation, specifically the proximity to marine foraging
habitat. Removing these acres from the designation would conform to the
marbled murrelet recovery plan's

[[Page 44681]]

recommendation for protection of suitable nesting habitat within 35 mi
(56.3 km) of the Pacific Ocean shoreline (USFWS 1997, p. 127, 131).
This area is where the majority of known occupied marbled murrelet
sites are found in Oregon (USFWS 1997, pp. 127, 131) ;
(3) We are using a more efficient method of providing legal
descriptions of critical habitat for the specific areas proposed in
this rule. Instead of using the Public Land Survey System (e.g.,
identification of boundaries using township and range information), we
are presenting UTM (Universal Transverse Mercator) data points
generated through GIS (Geographic Information System) mapping. While we
are providing maps of the affected units, we are not including the
textual descriptions in this proposed rule; these descriptions will be
provided in the final rule revising designated critical habitat for the
marbled murrelet.

Proposed Revised Critical Habitat Designation

We are proposing to revise the 1996 final designation of critical
habitat for the marbled murrelet to reflect the removal of 3 critical
habitat units and revision of 12 critical habitat units totaling
approximately 254,070 ac (102,820 ha) as follows:
Approximately 191,370 ac (77,450 ha) in zone 2 in northern
California and southern Oregon would be removed where extensive surveys
have demonstrated marbled murrelets are very unlikely to be found
(Hunter et al. 1997, pp. 16-25; Schmidt et al. 2000, pp. 16-22; U.S.
Forest Service and Bureau of Land Management 2002, p. 16.). Zone 2
includes areas from 35 miles (56.3 km) to 50 miles (80.5 km) from
marine environments (FEMAT 1993, p. IV-24). Both of these studies
acknowledge that it is possible that marbled murrelets may occasionally
use some portion of the study areas; however, if the species does
occur, the number of individuals is probably very low. Accordingly, it
appears that the habitat in these areas does not contain the physical
and biological features in the necessary spatial configuration that is
essential for the conservation of the species. Therefore, we believe
these areas do not meet the definition of critical habitat.
Approximately 62,700 ac (25,370 ha) of critical habitat in Douglas
and Lane Counties, Oregon, would be removed where critical habitat was
designated farther than 35 miles (56.3 km) from the coast. These areas
do not meet the criteria used to identify critical habitat in the 1996
designation, specifically the proximity to marine foraging habitat.
This action would be consistent with the marbled murrelet working team
recommendations to the Forest Ecosystem Management Assessment Team
(FEMAT) for the majority of occupied sites in Oregon (FEMAT 1993, p.
IV-23). This proposal would also better conform with the marbled
murrelet recovery plan recommendations, by limiting critical habitat to
the areas where the majority of known occupied murrelet sites are found
(USFWS 1997, p. 127, 131).
Areas that would be removed from the 1996 critical habitat
designation are in Douglas and Lane counties, Oregon (inland of Coos
Bay, Oregon), and in northern California and southern Oregon. All other
critical habitat units that were designated in the May 24, 1996, final
rule contain the physical and biological features considered essential
to the conservation of the species.
Other than minor adjustments and/or those units specifically
identified in this proposed rule, where a critical habitat unit
includes Federal lands within the boundaries of a Late Successional
Reserve (LSR) established by the Northwest Forest Plan, the areas
included within the LSR boundaries as they existed on May 24, 1996,
remain designated as critical habitat. The critical habitat areas
described below reflect our current best assessment of areas that no
longer meet the definition of critical habitat for the marbled murrelet
in Zone 2. To better understand the location of these proposed areas,
refer to the maps included in this proposed rule or at our Western
Washington Field Office's internet site at http://www.fws.gov/westwafwo/.

TABLE 1--Areas Proposed for Removal by State
------------------------------------------------------------------------
Areas Removed from
Designated Critical
Units Habitat
-------------------------
Acres Hectares
------------------------------------------------------------------------
California 143,487 58,068
------------------------------------------------------------------------
Oregon 110,585 44,752
------------------------------------------------------------------------
Washington 0 0
------------------------------------------------------------------------
TOTAL 254,071 102,821
------------------------------------------------------------------------

TABLE 2--Areas Proposed for Removal by Critical Habitat Unit and Ownership
----------------------------------------------------------------------------------------------------------------
Critical Habitat Unit Name from 1996
Designation Ownership Acres Removed Hectares Removed
----------------------------------------------------------------------------------------------------------------
CA-01d USFS 19,363 7,836
----------------------------------------------------------------------------------------------------------------
CA-01e USFS 28,168 11,400
----------------------------------------------------------------------------------------------------------------
CA-10a USFS 35,935 14,543
----------------------------------------------------------------------------------------------------------------
CA-11b USFS 8,540 3,456
----------------------------------------------------------------------------------------------------------------
CA-11c BLM 2,644 1,070
----------------------------------------------------------------------------------------------------------------
CA-11d USFS 61,558 24,912
----------------------------------------------------------------------------------------------------------------
OR-03-c BLM 146 59
----------------------------------------------------------------------------------------------------------------
OR-04-e BLM 6,557 2,654
----------------------------------------------------------------------------------------------------------------
OR-04-f BLM 20,736 8,391
----------------------------------------------------------------------------------------------------------------
OR-04-g BLM 2,780 1,125
----------------------------------------------------------------------------------------------------------------
OR-04-i BLM 25,616 10,366
----------------------------------------------------------------------------------------------------------------
OR-04-j BLM 480 194
----------------------------------------------------------------------------------------------------------------

[[Page 44682]]

OR-06-d BLM 9,170 3,711
----------------------------------------------------------------------------------------------------------------
OR-07-d USFS 26,524 10,734
----------------------------------------------------------------------------------------------------------------
OR-07-f BLM 1,032 418
----------------------------------------------------------------------------------------------------------------
OR-07-f USFS 4,821 1,951
----------------------------------------------------------------------------------------------------------------
TOTALS 254,071 102,821
----------------------------------------------------------------------------------------------------------------

California. The following designated critical habitat units are
being proposed for removal or revision from the 1996 designation, based
on extensive surveys that have demonstrated murrelets are very unlikely
to be found using the area. These units or portions thereof no longer
meet the definition of critical habitat: CA-01-d (portion), CA-01-e
(portion), CA-10-a (entire), CA-11-b (portion), CA-11-c (entire), and
CA-11-d (entire).
Oregon. The following designated critical habitat units are being
proposed for removal or revision from the 1996 critical habitat
designation, based on extensive surveys that have demonstrated
murrelets are very unlikely to be found using the area. These units or
portions thereof no longer meet the definition of critical habitat
where they extend into Oregon: CA-01-e (entire) and CA-10-a (entire),
and units OR-04-g (portion), OR-07-d (portion), and OR-07-f (portion).
Oregon. The following critical habitat units in Douglas and Lane
Counties, Oregon have been proposed for removal or revision where
critical habitat was designated farther than 35 miles inland from the
coast, based on the FEMAT murrelet zone 1 line. The marbled murrelet
recovery plan, completed in 1997 (USFWS 1997), recommended limiting
critical habitat to areas less than 35 miles from the coast, where the
majority of known occupied murrelet sites are found. These units or
portions thereof no longer meet the definition of critical habitat: OR-
03-c (portion), OR-04-e (portion), OR-04-f (portion), OR-04-i
(portion), OR-04-j (portion) and OR-06-d (portion).

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the 5th and 9th Circuit Court of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife
Service et al. 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely
on this regulatory definition when analyzing whether an action is
likely to destroy or adversely modify critical habitat. Under the
statutory provisions of the Act, we determine destruction or adverse
modification on the basis of whether, with implementation of the
proposed Federal action, the affected critical habitat would remain
functional (or retain the current ability for the PCEs to be
functionally established) to serve its intended conservation role for
the species.
If a species is listed or critical habitat is designated, section
7(a) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``Reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the

[[Page 44683]]

Director believes would avoid the destruction or adverse modification
of critical habitat. Reasonable and prudent alternatives can vary from
slight project modifications to extensive redesign or relocation of the
project. Costs associated with implementing a reasonable and prudent
alternative are similarly variable.
Federal activities that may affect marbled murrelet or its
designated critical habitat will require section 7 consultation under
the Act. Activities on State, Tribal, local or private lands requiring
a Federal permit (such as a permit from the U.S. Army Corps of
Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et
seq.) or a permit from us under section 10 of the Act), or involving
some other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) are subject to the section 7 consultation
process. Federal actions not affecting marbled murrelet or its
designated critical habitat, and actions on State, Tribal, local or
private lands that are not federally funded, authorized, or under
permit, do not require section 7 consultations. Currently designated
marbled murrelet critical habitat (see 50 CFR 17.95(b)) will remain
designated critical habitat until this proposal is finalized.
Therefore, any Federal activities that may affect currently designated
critical habitat will be subject to section 7 consultation
requirements.

Application of the Adverse Modification Standard

The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the PCEs to be functionally established. Activities that may
destroy or adversely modify critical habitat are those that alter the
PCEs to an extent that appreciably reduces the conservation value of
critical habitat for the marbled murrelet.
The range of the marbled murrelet has been subdivided by the
Recovery Team into six Marbled Murrelet Conservation Zones (USFWS 1997,
pp. 125-130), based on the need for potentially different recovery
actions in various portions of the marbled murrelet's range, and the
need to maintain well-distributed populations. These zones include
Puget Sound (Zone 1), Western Washington Coast Range (Zone 2), Oregon
Coast Range (Zone 3), Siskiyou Coast Range (Zone 4), Mendocino (Zone
5), and the Santa Cruz Mountains (Zone 6). Marbled murrelets within the
conservation zones are likely to interact across zone boundaries at
some level. Generally, the conservation role of marbled murrelet
critical habitat units is to support nesting, roosting, and other
normal behaviors (61 FR 26256). It is also necessary to produce and
maintain viable marbled murrelet populations that are well distributed
throughout the respective Conservation Zones (USFWS 1997 p. 116).
Specific goals are described in the recovery plan, but generally
include maintaining occupied sites and suitable nesting habitat for
marbled murrelets. Because it will take 50 or more years to develop new
nesting habitat, the short-term focus is on retaining and/or increasing
terrestrial habitat (USFWS 1997 p. vi).
For a wide-ranging species such as the marbled murrelet, where
multiple critical habitat units are designated, each unit has a
Regional Conservation Zone (RCZ) and range-wide role in contributing to
the conservation of the species. The basis for an adverse modification
opinion would be whether a proposed action appreciably reduces the
ability of critical habitat to remain functional to serve its
identified conservation role at the RCZ and rangewide levels. Thus, an
adverse modification finding would be based upon a broader inquiry than
an assessment of adverse effects at the local unit level. The loss or
modification of portions of critical habitat to an extent that the
affected unit(s) would not be likely to adequately support sufficient
numbers of nesting murrelets may represent destruction or adverse
modification of marbled murrelet critical habitat.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that are carried out, funded, or authorized by a Federal
agency and may affect marbled murrelet critical habitat require
consultation on its effects to marbled murrelet critical habitat.
Activities in critical habitat for the marbled murrelet vary in degree
of impact on critical habitat from those with no effect, to those with
short-term adverse effects but long-term beneficial effects, to those
with adverse affects but that do not destroy or adversely modify
critical habitat, and finally to those that may destroy or adversely
modify critical habitat. In all cases, the current condition of the
critical habitat, both locally and rangewide, and specific parameters
of the action will determine the level of effect.
A variety of activities that disturb or remove PCEs may adversely
affect, though not necessarily ``adversely modify'', marbled murrelet
critical habitat as that term is used in section 7 consultations. These
include, but are not limited to:
(1) Removal, modification, or fragmentation of forested areas that
directly impact nesting structures, nesting substrate, and the vertical
and horizontal cover provided by the surrounding forest. Fragmentation
of forested areas can result in habitat isolation and increased edge,
which negatively impacts the quality of the remaining nesting habitat
primarily through increased predation; modification of the
microclimate; and potential windthrow of nest trees. Any action
resulting in the removal of a potential nest tree is likely to result
in an adverse effect to critical habitat. Federal actions primarily
affecting marbled murrelet nesting habitat include timber harvest,
salvage logging, and hazard tree removal. Indirect harvest-related
effects of Federal actions could include windthrow caused by harvest.
In addition, road construction, recreational or other developments, and
fuels reduction projects may also result in these types of effects.
(2) New and existing human activity, including recreation,
agriculture, and urbanization, adjacent to and within forested areas
can result in loss or modification of the PCEs. Interior forest nests
in contiguous stands far from human activity appear to experience the
least predation, and public lands that are easily accessible have
higher levels of human use, with resultant activities that are
attractive to corvids (Marzluff et al. 1996). The other factor which
appears to increase predation rates is higher levels of landscape
fragmentation (Marzluff et al. 1996).
The following activities may have adverse effects on murrelet
critical habitat PCEs:
(1) Removal or degradation of individual trees with potential
nesting platforms, or the nest platforms themselves, that results in a
significant decrease in the value of the trees for future nesting use.
Moss may be an important component of nesting platforms in some areas.
(2) Removal or degradation of trees adjacent to trees with
potential nesting platforms that provide habitat elements essential to
the suitability of the potential nest tree or platform, such as

[[Page 44684]]

trees providing cover from weather or predators.
(3) Removal or degradation of forested areas with a canopy height
of at least 1/2 the site-potential tree height and, regardless of
contiguity, within 0.8 km (0.5 mi) of individual trees containing
potential nest platforms. This includes removal or degradation of trees
currently unsuitable for nesting that contribute to the structure/
integrity of the potential nest area (i.e., trees that contribute to
the canopy of the forested area). These trees provide the canopy, stand
conditions, and protection from predation important for marbled
murrelet nesting.
Beneficial actions may also adversely affect, but would not be
expected to adversely modify, critical habitat, since they would
promote the development or improve the functional quality of critical
habitat for the marbled murrelet. This could include: (1) Thinning
under potential nest trees to protect the tree's nesting structures
from competing trees, which would help maintain suitable nesting
habitat; (2) Thinning in younger stands to speed their attainment of 1/
2 site-potential tree height in the vicinity of potential nest trees,
which would benefit the function of marbled murrelet critical habitat
by decreasing fragmentation, maintaining microclimate of potential nest
trees, and reducing the effects of predation. Actions that promote the
development of potential nest trees, while maintaining the integrity of
the forest stand, would also be beneficial to the function of critical
habitat by increasing future nesting habitat, and providing replacement
habitat for existing nest stands that may be lost to such natural
events as wildfire and windthrow.
Some thinning activity may have short-term adverse effects but
long-term beneficial impacts. For example, actions in existing critical
habitat designed to create canopy diversity or promote the development
of future nest trees may open the canopy for a short time, resulting in
some potential increase in predation. However, if such effects are
short-lived, current nesting habitat is not removed, and the
prescription speeds the development of suitable nest trees where such
trees are limited, the result may be a long-term improvement in
critical habitat condition.
For a proposed action to result in destruction or adverse
modification of critical habitat, it must affect the designated
critical habitat to an extent that the affected unit(s) no longer
serves its intended conservation role for the species or no longer
retains its current ability for the primary constituent elements to be
functionally established. Proposed actions requiring a section 7
consultation must be evaluated individually, in light of the baseline
condition of the critical habitat unit and RCZ, unique history of the
area, and effect of the impact on the critical habitat unit relative to
its regional and range-wide role in the conservation of the species.
The loss or substantial reduction of viable populations throughout one
or more RCZs, or even a major part of an RCZ, could lead to genetic and
demographic isolation of parts of the population.
All of the units designated as critical habitat contain features
essential to the conservation of the marbled murrelet. All units are
within the geographic range of the species, were occupied or likely to
be occupied by the species at the time of listing, and are likely to be
used by the marbled murrelet. Federal agencies already consult on
activities in areas currently occupied by the marbled murrelet, or if
the species may be affected by the action, to ensure that their actions
do not jeopardize the continued existence of the marbled murrelet.
Activities that have little to no effect in one critical habitat
unit or RCZ may cause serious effects in another, due to differences in
existing conditions and the conservation function of critical habitat.
Therefore, the Service cannot provide a detailed description of the
threshold for future actions that would result in the destruction or
adverse modification of critical habitat applicable throughout the
range of the designated critical habitat in this proposed rule.
However, we fully anticipate that some projects may be proposed in
critical habitat that will adversely affect PCEs, and, in some cases,
may include removal of stands of 1/2 site-potential tree height while
not reaching the level of destruction or adverse modification of
critical habitat. For example, the harvest of relatively small stands
of trees that contribute to the function of PCEs (e.g., stands with a
canopy of 1/2 site-potential tree height within 0.5 mile (0.8 km) of a
potential nest tree) in a critical habitat unit with a large number of
potential nest trees and a high proportion of surrounding forest cover
most likely will not appreciably reduce the ability of critical habitat
to remain functional at the RCZ and rangewide scales.
Actions that adversely affect forest stands that are not within 0.5
mile (0.8 km) of individual trees with potential nesting platforms
would probably not adversely modify critical habitat, even if they
occur within the boundaries of the area designated as critical habitat.
Activities that do not affect the PCEs or the ability for the PCEs to
be functionally established are unlikely to be affected by the
designation. However, even though an action may not adversely affect or
adversely modify critical habitat, it may still affect marbled
murrelets (e.g., through disturbance) and may, therefore, still be
subject to consultation under section 7 of the Act.
If you have questions regarding whether specific activities may
constitute destruction or adverse modification of critical habitat,
contact a Field Supervisor listed under ``FOR FURTHER INFORMATION
CONTACT``.

Application of Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that, ``[T]he Secretary shall
designate critical habitat, and make revisions thereto, under
subsection (a)(3) 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.'' We have considered the potential
economic impacts of this proposed critical habitat revision based on
information in our 2007 economic analysis (described in 72 FR 35025),
and are not proposing to exclude any areas under section 4(b)(2)
because of economic, national security, or other considerations.
However, to ensure our final determination is based on the best
available information, we are hereby soliciting comments on any
foreseeable economic, national security, or other potential impacts
resulting from this proposed revised designation of critical habitat,
and in particular, any potential impacts on small entities, and whether
the benefits of exclusion of a particular area outs weighs the benefits
of inclusion.

Application of Section 4(a)(3)(B)(i) of the Act

The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) provides: ``The Secretary shall not designate
as critical habitat any lands or other geographical areas owned or
controlled by the Department of Defense, or designated for its use,
that are subject to an integrated natural resources management plan
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary determines in writing that such plan provides a benefit to
the species for which critical habitat is proposed for designation.''
There are no areas owned or controlled

[[Page 44685]]

by the Department of Defense within the areas being proposed for this
revised critical habitat designation.

Peer Review

In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we are obtaining the expert
opinions of at least three appropriate independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our revised critical habitat designation is based on
scientifically sound data, assumptions, and analyses. We have invited
these peer reviewers to comment during this public comment period on
our specific assumptions and conclusions in this proposed designation
of revised critical habitat.
We will consider all comments and information we receive during
this comment period on this proposed rule during our preparation of a
final determination. Accordingly, our final decision may differ from
this proposal.

Public Hearings

The Act provides for one or more public hearings on this proposal
if we receive any requests for hearings. We must receive your request
for a public hearing within 45 days after the date of this Federal
Register publication. Send your request to an address listed in FOR
FURTHER INFORMATION CONTACT. We will schedule public hearings on this
proposal, if any are requested, and announce the dates, times, and
places of those hearings, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the first hearing.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order (E.O.) 12866. OMB bases
its determination upon the following four criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.

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
(SBREFA) of 1996), whenever an agency must 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 (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a statement of the factual basis
for certifying that the rule will not have a significant economic
impact on a substantial number of small entities.
This proposed revision would result in an approximate 254,070 acre
(102,820 ha) reduction in the critical habitat acreage that was
designated in the May 24, 1996, final rule (61 FR 26256). No critical
habitat will be added under this proposed revision, and the reductions
occur exclusively on Federal lands. Accordingly, we do not believe that
it will have a significant economic impact on a substantial number of
small entities.

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
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 [T]ribal 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; AFDC 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 designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) This proposed revision would result in an approximate 254,070
ac (102,820 ha) reduction in the critical habitat acreage that was
designated in the May 24, 1996, final rule (61 FR 26256). All of these
acres are on Federal lands. Accordingly, we do not believe that it will
significantly or uniquely affect small governments because small
governments will be affected only to the extent that any programs
having Federal funds, permits, or other authorized activities must
ensure that their actions will not adversely affect the critical
habitat. This proposed revision would remove a portion of the
designated critical habitat, removing the need to consult on effects to
critical habitat for those removed areas. Therefore, a Small Government
Agency Plan is not required.

[[Page 44686]]

Takings

In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of this revised designation
of critical habitat for the marbled murrelet in a takings implications
assessment. The takings implications assessment concludes that this
revised designation of critical habitat for the marbled murrelet does
not pose additional takings implications for lands within or affected
by the original 1996 designation.

Federalism

In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A Federalism assessment is not
required. We believe that the revised designation of critical habitat
for the marbled murrelet will have little incremental impact on State
and local governments and their activities, since the removal of
254,070 ac (102,820 ha) of currently designated critical habitat would
impose no additional restrictions beyond any that may already be in
place.

Civil Justice Reform

In accordance with E.O. 12988 (Civil Justice Reform),this rule does
not unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have issued this proposed
critical habitat revision in accordance with the provisions of the Act.
This proposed rule uses standard property descriptions and identifies
the primary constituent elements within the designated areas to assist
the public in understanding the habitat needs of the marbled murrelet.

Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

It is our position that, outside the jurisdiction of the United
States Court of Appeals for the Tenth Circuit, we do not need to
prepare environmental analyses as defined by 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 assertion was
upheld by the United States Court of Appeals for the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied
516 U.S. 1042 (1996).

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:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible.

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), E.O. 13175 and the Department of the
Interior's manual at 512 DM 2 we readily acknowledge our responsibility
to communicate meaningfully with recognized Federal Tribes on a
government-to-government basis. In accordance with Secretarial Order
3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes.
This proposed revision would result in an approximate 254,070 ac
(102,820 ha) reduction in the critical habitat acreage that was
designated in the May 24, 1996, final rule (61 FR 26256). None of the
areas proposed for removal are on tribal lands.

Energy Supply, Distribution, or Use

On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
We do not expect this proposed rule to significantly affect energy
supplies, distribution, or use, since it would involve removing
approximately 254,070 ac (102,820 ha) of critical habitat from the
existing critical habitat designation. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.

References Cited

A complete list of all references cited in this rulemaking is
available online at http://www.fws.gov/westwafwo/ or upon request from
the Field Supervisor, Western Washington Fish and Wildlife Office (see
FOR FURTHER INFORMATION CONTACT).

Author(s)

The primary author(s) of this package are staff from the Pacific
Region Ecological Services Offices.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Public Law 99-625, 100 Stat. 3500; unless otherwise
noted.
2. In Sec. 17.11(h), revise the entry for ``Murrelet, marbled''
under ``BIRDS'' in the List of Endangered and Threatened Wildlife to
read as follows: Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *

[[Page 44687]]

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
---------------------------------- population where
Historic range endangered or Status When listed Critical habitat Special rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * * .................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Birds .................
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * * .................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Murrelet, Brachyramphus U.S.A. (AK, CA, U.S.A. (CA, OR, T 479 17.95(b) NA
marbled marmoratus OR, WA), Canada WA)
(B.C.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * * .................
--------------------------------------------------------------------------------------------------------------------------------------------------------

3.In Sec. 17.95(b), amend the entry for ``Marbled Murrelet'' as
follows:
a. Revise the heading to read as set forth below;
b. Revise paragraph 3 to read as set forth below;
c. Remove the index map for Oregon (``General configuration of
final critical habitat in Oregon'') and replace it with the map titled
``Critical Habitat for the Marbled Murrelet (Brachyramphus marmoratus)
in Oregon'', as set forth below;
d. Remove the index map for California (``General configuration of
final critical habitat in California'') and replace it with the index
map titled ``Critical Habitat for the Marbled Murrelet (Brachyramphus
marmoratus) in California'', as set forth below;
e. Remove the critical habitat description and map for Unit OR-03-c
and add in its place a new map for Unit OR-03-c as set forth below;
f. Remove the critical habitat description and map for Unit OR-04-e
and add in its place a new map for Unit OR-04-e as set forth below;
g. Remove the critical habitat description and map for Unit OR-04-f
and add in its place a new map for Unit OR-04-f as set forth below;
h. Remove the critical habitat description and map for Unit OR-04-g
and add in its place a new map for Unit OR-04-g as set forth below;
i. Remove the critical habitat description and map for Unit OR-04-i
and add in its place a new map for Unit OR-04-i as set forth below;
j. Remove the critical habitat description and map for Unit OR-04-j
and add in its place a new map for Unit OR-04-j as set forth below;
k. Remove the critical habitat description and map for Unit OR-06-d
and add in its place a new map for Unit OR-06-d as set forth below;
l. Remove the critical habitat description and map for Unit OR-07-d
and add in its place a new map for Unit OR-07-d as set forth below;
m. Remove the critical habitat description and map for Unit OR-07-f
and add in its place a new map for Unit OR-07-f as set forth below;
n. Remove the critical habitat description and map for Unit CA-01-d
and add in its place a new map for Unit CA-01-d as set forth below;
o. Remove the critical habitat description and map for Unit CA-01-e
and add in its place a new map for Unit CA-01-e as set forth below;
p. Remove the critical habitat description and map for Unit CA-10-
a;
q. Remove the critical habitat description and map for Unit CA-11-b
and add in its place a new map for Unit CA-11-b as set forth below;
r. Remove the critical habitat description and map for Unit CA-11-
c; and
s. Remove the critical habitat description and map for Unit CA-11-
d.

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(b) Birds.
* * * * *
Marbled Murrelet (Brachyramphus marmoratus)
* * * * *
3. A description of the critical habitat units follows. Where a
critical habitat unit includes Federal lands within the boundaries of a
Late Successional Reserve (LSR) established by the Northwest Forest
Plan, the areas included within the LSR boundaries as they existed on
May 24, 1996, remain designated as critical habitat. Critical habitat
units do not include non-federal lands covered by a legally operative
incidental take permit for marbled murrelets issued under section 10(a)
of the Act.
* * * * *
BILLING CODE 4310-55-S

[[Page 44688]]

[GRAPHIC] [TIFF OMITTED] TP31JY08.000

[[Page 44689]]

[GRAPHIC] [TIFF OMITTED] TP31JY08.001

[[Page 44690]]

Unit OR-03-c: Benton County, Oregon. From USGS 1:24,000 scale
quadrangle: Airlie South.
[GRAPHIC] [TIFF OMITTED] TP31JY08.002

[[Page 44691]]

* * * * *
Unit OR-04-e: Douglas County, Oregon. From USGS 1:24,000 scale
quadrangles: Callahan and Tyee.
[GRAPHIC] [TIFF OMITTED] TP31JY08.003

[[Page 44692]]

Unit OR-04-f: Douglas County, Oregon. From USGS 1:24,000 scale
quadrangles: Garden Valley, Kellogg, Putnam Valley, Tyee, Tyee
Mountain, Yellow Butte and Yoncalla.
[GRAPHIC] [TIFF OMITTED] TP31JY08.004

[[Page 44693]]

Unit OR-04-g: Douglas County, Oregon. From USGS 1:24,000 scale
quadrangle: Putnam Valley.
[GRAPHIC] [TIFF OMITTED] TP31JY08.005

[[Page 44694]]

Unit OR-04-i: Douglas and Lane Counties, Oregon. From USGS 1:24,000
scale quadrangles: Beaver Creek, Crow, Drain, High Point, Letz Creek,
Noti, Putnam Valley and Veneta.
[GRAPHIC] [TIFF OMITTED] TP31JY08.006

[[Page 44695]]

Unit OR-04-j: Douglas and Lane Counties, Oregon. From USGS 1:24,000
scale quadrangles:
[GRAPHIC] [TIFF OMITTED] TP31JY08.007

[[Page 44696]]

* * * * *
Unit OR-06-d: Coos and Douglas Counties, Oregon. From USGS 1:24,000
scale quadrangles: Camas Valley, Mt Gurney, Reston and Tenmile.
[GRAPHIC] [TIFF OMITTED] TP31JY08.008

[[Page 44697]]

* * * * *
Unit OR-07-d: Curry and Josephine Counties, Oregon. From USGS
1:24,000 scale quadrangles: Biscuit Hill, Buckskin Peak, High Plateau
Mountain, O'Brien and Shelly Creek Ridge.
[GRAPHIC] [TIFF OMITTED] TP31JY08.009

[[Page 44698]]

Unit OR-07-f: Curry and Josephine Counties, Oregon. From USGS
1:24,000 scale quadrangles: Brandy Peak, Kelsey Peak, Marial and Silver
Peak.
[GRAPHIC] [TIFF OMITTED] TP31JY08.010

[[Page 44699]]

* * * * *
Unit CA-01-d: Siskiyou County, California. From USGS 1:24,000 scale
quadrangles: Prescott Mountain, Bear Peak, Clear Creek, Chimney Rock,
Dillon Mountain.
[GRAPHIC] [TIFF OMITTED] TP31JY08.011

[[Page 44700]]

Unit CA-01-e: Del Norte County, California. From USGS 1:24,000
scale quadrangles: Takilma, Broken Rib Mountain, Polar Bear Mountain
[GRAPHIC] [TIFF OMITTED] TP31JY08.012

[[Page 44701]]

* * * * *
Unit CA-11-b: Humboldt County, California. From USGS 1:24,000 scale
quadrangles: Hennessy Peak, Sims Mountain.
[GRAPHIC] [TIFF OMITTED] TP31JY08.013

* * * * *

Dated: July 22, 2008,
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. E8-17343 Filed 7-30-08; 8:45 am]
BILLING CODE 4310-55-C