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Federal Register / Vol. 86, No. 136 / Tuesday, July 20, 2021 / Proposed Rules
the area will outweigh the benefits of including it in the designation.

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Public Hearing Section 4b5 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 Services website, in addition to the Federal Register. The use of these virtual public hearings is consistent with our regulations at 50 CFR 424.16c3.
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. 13361RJL 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 4b2 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 4b2 of the Act.
On August 11, 2020 85 FR 48487, we published in the Federal Register a
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proposed revised critical habitat rule to exclude 204,653 acres 82,820 hectares within 15 counties in Oregon under section 4b2 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 4b2 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.

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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 Secretarys conclusions and analyses in the January Exclusions Rule were consistent with the law, and whether the Secretary properly exercised his discretion under section 4b2 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 Ruleboth 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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