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Federal Register / Vol. 86, No. 136 / Tuesday, July 20, 2021 / Proposed Rules
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 Acts 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 owls 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 4dispersal 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 Acts 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

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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.
7205172052, 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. 106554; 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
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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 7a1 of the Act; 2 regulatory protections afforded by the requirement in section 7a2 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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