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Federal Register / Vol. 86, No. 38 / Monday, March 1, 2021 / Rules and Regulations One of our rules, the revised designation of critical habitat for the northern spotted owl, was published in the Federal Register but has not yet taken effect so it is subject to review 86
FR 4820; January 15, 2021. A review of this rule is particularly warranted because of the considerable change between the proposed rule and the final rule. Specifically, on August 11, 2020, the Service proposed a rule to exclude 204,653 acres 82,820 hectares in 15
counties in Oregon from the species designated critical habitat 85 FR 4847;
August 11, 2020. The final rule excludes approximately 3,472,064 acres 1,405,094 hectares in 14 counties in Washington, 21 counties in Oregon, and 10 counties in California from the species designated critical habitat 86
FR 4820; January 15, 2021. The additional areas excluded in the final rule more than 3.2 million acres and the rationale for the additional exclusions were not presented to the public for notice and comment. We are considering whether the public had appropriate notice in the proposed rule such that the determinations made in the final rule were a logical outgrowth of the proposed rule. We note that several members of Congress expressed concerns regarding the additional exclusions, among other concerns, which they identified in a February 2, 2021, letter to the Inspector General of the Department of the Interior seeking review of the rule.
We have also received at least two notices of intent to sue from interested parties regarding allegations of procedural defects among other potential defects with respect to our rulemaking for the final critical habitat exclusions. The Service has been sued each time it has issued a final rule regarding critical habitat for the northern spotted owl. These suits include challenges to the initial designation in 1992 57 FR 1796;
January 15, 1992 see, e.g., Trinity County Concerned Citizens v. Babbitt, 1993 WL 650393 D.D.C. 1993, a revision in 2008 73 FR 47326; August 13, 2008 see Carpenters Industrial Council v. Kempthorne, No. 1:08cv 01409 D.D.C., and the revision in 2012 77 FR 71876; December 4, 2012
see Pacific Northwest Regional Council of Carpenters v. Bernhardt, No. 1:13
cv00361 D.D.C..
In light of the litigation history of northern spotted owl critical habitat designations, the clear intentions from some parties to file suit to challenge the January 15, 2021, Final Rule, and other questions raised, we are reviewing whether the rulemaking was procedurally adequate. In particular, as
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noted above, we are reviewing whether the Final Rule was a logical outgrowth of the proposal and whether the public had fair notice and an opportunity to comment on the expansive change in both location and amount of areas excluded from critical habitat, as well as the rationale for those changes. Extending the effective date of the January 15, 2021, Final Rule while the Service reconsiders it may avoid unnecessary litigation challenging a rule that may change, which could conserve judicial, public, and agency resources.
We are, therefore, delaying the effective date of the final rule we published on January 15, 2021, that revised the designation of critical habitat for the northern spotted owl under the ESA 86 FR 4820, to give us time to consider questions of law, policy, and fact in regard to that final rule. The original effective date of the rule was March 16, 2021; with this document, we are delaying the effective date of the rule until April 30, 2021.
This 45-day delay of the January 15, 2021, Final Rulebased on the good cause articulated belowis for the purpose of reviewing any questions of fact, law, and policy that are raised by that rule as well as the effect of the delay, consistent with the Regulatory Freeze Memorandum and OMB
Memorandum M2114. During this period, we will continue to gather information to determine whether any further steps should be undertaken, including whether there is a need to postpone the effective date further to give us additional time to reconsider the rule. To that end, we invite the public to submit comment on any issues of fact, law, or policy raised by the January 15, 2021, Final Rule, including, without limitation, the following:
1 In a January 21, 2021, memorandum OMB M2114
addressing steps agencies should take in response to the Regulatory Freeze Memorandum in reviewing recently finalized rules, OMB requires agencies to consider, among other things, whether the rulemaking process was procedurally adequate, including by taking final action that was a logical outgrowth of the proposal, and whether interested parties had a fair opportunity to present contrary facts and arguments.
We, therefore, invite comment on whether you think procedural issues exist in the January 15, 2021, Final Rule rulemaking process and if so, what those issues are and what the Service could do to remedy them.
2 Whether the Service should extend the effective date of the January 15, 2021, Exclusions Rule beyond April 30, 2021, and, if so, for how long and what,
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if any, the impacts of that delay would be.
3 Whether the Secretarys conclusions and analyses in the January 15, 2021, Final Rule were consistent with the law, and whether the Secretary properly exercised his discretion under section 4b2 of the ESA in excluding the areas at issue from critical habitat.
4 Whether, and with what supporting rationales, the Service should reconsider, amend, rescind, or allow to go into effect the January 15, 2021, Final Rule.
II. Good Cause Under the Administrative Procedure Act Our implementation of this action extending the effective date of the revisions to the northern spotted owl critical habitat rule from March 16, 2021, until April 30, 2021, without opportunity for public comment, effective immediately upon publication in the Federal Register, is based on the good-cause exception provided in the Administrative Procedure Act APA.
Pursuant to 5 U.S.C. 553bB and d3, we have determined that good cause exists to forgo the requirements to provide prior notice and an opportunity for public comment on this 45-day delay in the effective date of the January 15, 2021, Final Rule, and to make this action announcing the delay effective immediately. Under the totality of the circumstances presented here, notice and comment would be both impracticable and contrary to the public interest because taking the time to provide for public notice and comment would prevent the Service from performing its functions, create confusion and disruption in the ESA
section 7a2 consultation process, and thwart the conservation purposes of the Act.
As noted above, we are reviewing whether the determinations made in the final rule were a logical outgrowth of the proposed rule. In addition, there has been substantial litigation in the past on critical habitat designations for this species, and we have already received two notices of intent to sue to challenge the January 15, 2021, Final Rule. Our agencys due and required execution of its functions under the ESA would be unavoidably prevented if we allow the effective date to be triggered without the thorough review described above. See S.
Doc. No. 248, 79th Cong., 2d Sess. At 200 1946. That is, if the January 15, 2021, final exclusions from designated critical habitat of more than 3 million acres of northern spotted owl habitat become effective, there is the potential that we will not have met our obligations under the Act to provide
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