95-3922. Endangered and Threatened Wildlife and Plants; Proposed Special Rule for the Conservation of the Northern Spotted Owl on Non-Federal Lands

[Federal Register Volume 60, Number 33 (Friday, February 17, 1995)]
[Proposed Rules]
[Pages 9484-9527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3922]




[[Page 9483]]

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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Proposed Special Rule 
for the Conservation of the Northern Spotted Owl on Non-Federal Lands; 
Proposed Rule

Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / 
Proposed Rules 
[[Page 9484]] 

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD20


Endangered and Threatened Wildlife and Plants; Proposed Special 
Rule for the Conservation of the Northern Spotted Owl on Non-Federal 
Lands

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed Special Rule.

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SUMMARY: The implementing regulations for threatened wildlife generally 
incorporate the prohibitions of Section 9 of the Endangered Species Act 
(Act) of 1973, as amended, for endangered wildlife, except when a 
``special rule'' promulgated pursuant to Section 4(d) of the Act has 
been issued with respect to a particular threatened species. At the 
time the northern spotted owl, Strix occidentalis caurina, (spotted 
owl) was listed as a threatened species in 1990, the Fish and Wildlife 
Service (Service) did not promulgate a special section 4(d) rule and, 
therefore, all of the section 9 prohibitions, including the ``take'' 
prohibitions, became applicable to the species. Subsequent to the 
listing of the spotted owl, a Federal Late-Successional and Old-growth 
(LSOG) forest management strategy (Plan) was developed and then 
formally adopted on April 13, 1994, in a Record of Decision (ROD) that 
amended land management plans for Federal forests in northern 
California, Oregon, and Washington. Although this proposed rule refers 
to the Federal LSOG forest strategy as the ``Forest Plan'', it is noted 
that the strategy is not a stand-alone management Plan but rather 
effected a series of amendments to Forest Service and the Bureau of 
Land Management planning documents. In recognition of the significant 
contribution the Plan does make toward spotted owl conservation and 
management, the Service now proposes a special rule, pursuant to 
section 4(d) of the Act, to replace the blanket prohibition against 
incidental take of spotted owls with a narrower, more tailor-made set 
of standards that reduce prohibitions applicable to timber harvest and 
related activities on specified non-Federal forest lands in Washington 
and California.

DATES: Comments from all interested parties must be received by May 18, 
1995.
    The Service seeks comments from the interested public, agencies, 
and interest groups on this proposed special rule and the potential 
environmental effects of its implementation. A Draft Environmental 
Impact Statement (DEIS) is being developed to accompany this proposed 
rule and will be published soon after the proposed rule. The end of the 
comment period on this proposed rule will be extended to coincide with 
the end of the public comment period on the DEIS.

ADDRESSES: Comments and materials concerning this proposed rule should 
be sent to Mr. Michael J. Spear, Regional Director, Region 1, U.S. Fish 
and Wildlife Service, 911 N.E. 11th Avenue, Portland, Oregon 97232-
4181. The complete file for this proposed rule will be available for 
public inspection, by appointment during normal business hours, at the 
above address.

FOR FURTHER INFORMATION CONTACT: Mr. Curt Smitch, Assistant Regional 
Director, North Pacific Coast Ecosystem, 3704 Griffin Lane SE, Suite 
102, Olympia, Washington 98501 (206/534-9330); or Mr. Gerry Jackson, 
Deputy Assistant Regional Director, North Pacific Coast Ecosystem, 911 
N.E. 11th Avenue, Portland Oregon 97232-4181, (503/231-6159).

SUPPLEMENTARY INFORMATION:

Abstract

    The implementing regulations for threatened wildlife generally 
incorporate the prohibitions of section 9 of the Endangered Species Act 
(Act) of 1973, as amended, for endangered wildlife, except when a 
``special rule'' promulgated pursuant to Section 4(d) of the Act has 
been issued with respect to a particular threatened species. When the 
northern spotted owl, Strix occidentalis caurina, (spotted owl) was 
listed as a threatened species in 1990, the Fish and Wildlife Service 
(Service) did not promulgate a special 4(d) rule. Therefore, all of the 
Section 9 prohibitions for endangered species were made applicable to 
the spotted owl throughout its range, including the prohibitions 
against ``take'' that apply to endangered species under the Act.
    Subsequent to the listing of the spotted owl, a new Federal forest 
management strategy was developed and proposed by the Forest Ecosystem 
Management Assessment Team (FEMAT), which was established by President 
Clinton following the April 2, 1993, Forest Conference in Portland, 
Oregon. FEMAT was established to develop options for the management of 
Federal LSOG-forest ecosystems in northern California, Oregon, and 
Washington within the range of the spotted owl. FEMAT outlined those 
options in the report, Forest Ecosystem Management: An Ecological, 
Economic, and Social Assessment, which drew heavily upon previous 
scientific studies conducted on the northern spotted owl. On July 1, 
1993, the President identified ``Option 9'' in the FEMAT Report as the 
preferred alternative for managing Federal LSOG-forests in northern 
California, Oregon, and Washington. The proposed management scenario 
under Option 9 of FEMAT established a system of late-successional 
forest and riparian reserves that would, in conjunction with 
Administratively withdrawn and Congressionally reserved areas, provide 
the foundation of protected ``old growth'' habitat that would benefit 
spotted owls, marbled murrelets, salmon and many other old growth 
associated species; adaptive management areas (AMAs) and surrounding 
``matrix'' lands would constitute the remaining forest management 
designations on Federal lands in the planning area. Future timber 
harvesting activities on Federal lands within the range of the northern 
spotted owl were expected to occur primarily in AMAs and Federal lands 
determined to constitute the ``matrix.''
    A draft Supplemental Environmental Impact Statement was issued in 
July 1993 to assess the environmental impacts of the alternatives which 
were set forth in the FEMAT Report. A final SEIS was completed in 
February 1994, and a Record of Decision was signed on April 13, 1994. 
This process culminated in the formal administrative adoption of 
Alternative 9 (a revised version of Option 9 as it had been presented 
in the FEMAT Report), which has now become known, simply, as the Forest 
Plan or Plan. This Plan provides a firm foundation for the conservation 
needs of the spotted owl, especially in light of the net addition of 
approximately 600,000 acres of Federal forest lands to protected 
reserve status between its original formulation in the FEMAT Report and 
the Record of Decision. On December 21, 1994, Federal District Court 
Judge William L. Dwyer, issued his order upholding the adequacy of the 
Plan. Judge Dwyer said ``The order now entered,* * *, will mark the 
first time in several years that the owl-habitat forests will be 
managed by the responsible agencies under a plan found lawful by the 
courts. It will also mark the first time that the Forest Service and 
BLM have worked together to preserve ecosystems common to their 
jurisdictions.''
    Despite enhanced owl protection under the final Forest Plan, 
however, the Service believes that some supplemental support from non-
Federal forest lands remains necessary and [[Page 9485]] advisable for 
owl conservation in certain parts of the range of the owl.
    Based upon the possibility that the preferred alternative of FEMAT 
(Option 9) would eventually be adopted, the Service published a Notice 
of Intent (NOI) in the Federal Register (58 FR 69132) on December 29, 
1993, and sent out a mailer advising the public of its intention to 
prepare an Environmental Impact Statement (EIS) for a proposed special 
rule that would ease restrictions for the spotted owl on certain non-
Federal forest lands. In response, the Service received and evaluated 
more than 8,500 public comments. Taking these comments into 
consideration, and based upon additional analyses, the Service now 
proposes a special rule that would reduce the prohibition against 
incidental take of spotted owls in the course of timber harvest and 
related activities on specified non-Federal forest lands in Washington 
and California.
    For reasons discussed in more detail later, the Service is not 
including Oregon, at this time, within the geographic scope of this 
proposed special rule. The Service is aware of ongoing efforts within 
Oregon between the Governor's office and large and small landowners to 
fashion an ``Oregon Alternative'' to the Service's proposed action for 
the State, as set out in the December 29, 1993, NOI. The Service is 
supportive of this effort and will maintain the regulatory status quo 
for spotted owls in Oregon in anticipation that an ``Oregon 
Alternative'' approach to owl conservation will be developed. Thus, by 
excluding Oregon altogether from this proposed special rule, the 
Service retains for Oregon the original level of protection against 
take for the owl established when the species was listed on June 26, 
1990.
    In assessing the conservation needs of the northern spotted owl on 
non-Federal lands, the Service was particularly mindful of--(1) The 
level of protection to be provided the owl under the Federal reserve 
and riparian buffer systems established under the Forest Plan, as well 
as the matrix and adaptive management area prescriptions under the 
Plan; (2) the range, location, and number of spotted owls on non-
Federal and Federal lands; (3) recently developed State programs to 
regulate forest practices to benefit the spotted owl; and (4) emerging 
non-Federal landowner habitat management and owl conservation 
strategies such as Habitat Conservation Plans and agreements to avoid 
the incidental take of owls.
    This special rule proposes to replace the currently applicable 
blanket prohibition against incidental take on non-Federal lands 
throughout the owls' range with a more particularized set of 
prohibitions for Washington and California. For the State of 
Washington, incidental take restrictions would be relaxed for 
approximately 5.24 million acres of non-Federal land in conifer 
forests. While only a considerably smaller acreage figure of non-
Federal forest land is presently affected by incidental take 
prohibitions for the spotted owl, the fear of future owl restrictions 
is a significant concern of forest landowners throughout the range of 
the spotted owl. This proposed rule would ease incidental take 
restrictions on designated non-Federal lands by limiting the incidental 
take prohibition for timber harvest activities to actions that fail to 
maintain the 70 acres of suitable owl habitat closest to a site center 
for a spotted owl. By proposing this action, the Service is not 
implying that incidental take cannot occur until harvest activities 
approach and actually invade an owl's activity center. Rather, the 
Service is proposing that, in certain portions of the owl's range, the 
incidental take of an owl will no longer be a prohibited activity 
unless it involves harvest activities within an activity center.
    Current incidental take restrictions would be retained for those 
spotted owls whose site centers are located within six designated zones 
or ``Special Emphasis Areas'' (SEAs) in the State of Washington. The 
six SEAs include the western portion of the Olympic Peninsula, the 
Finney Block area, the I-90 Corridor, the Mineral Block area, the 
Siouxon Creek area and the Columbia Gorge/White Salmon areas. These 
areas were generally chosen to fill in gaps in protection under the 
Forest Plan where the Federal land base alone appears currently to be 
inadequate to provide for the conservation of the owl.
    In addition, the Service proposes to implement a ``Local Option 
Conservation Planning'' program in Washington to provide an opportunity 
for additional relief from incidental take prohibitions for non-Federal 
landowners who own between 80 and 5,000 acres of forest lands within an 
SEA. The Local Option process is envisioned to be the equivalent of a 
``short form'' Habitat Conservation Plan. The local option conservation 
planning process would not apply to those areas where the Service 
determines that suitable owl habitat (nesting, roosting or foraging 
habitat) on non-Federal lands within SEAs can reasonably be expected to 
provide important demographic support for Federal owl reserves. These 
``Local Option'' conservation plans would provide non-Federal 
landowners with the flexibility to develop alternative prescriptions or 
restrictions for their lands which could achieve a level of protection 
comparable to the conservation objectives set forth for the owl in this 
rule.
    For the State of California, this proposed rule would recognize the 
significant conservation benefits accorded the northern spotted owl 
under California law by easing the Federal prohibition against 
incidental take from timber harvest activities in most of the Klamath 
province of that State. The zone in which this would occur would be 
called the Klamath Province Relief Area. The incidental take 
prohibition for timber harvests in this Relief Area would be limited to 
actions which fail to maintain the 70 acres of suitable owl habitat 
closest to a site center for a spotted owl. Additional relief could be 
provided to non-Federal landowners in four potential ``California 
Conservation Planning Areas'' (CCPAs) referred to as the California 
Coastal Area, Hardwood Region, Wells Mountain-Bully Choop area, and the 
California Cascades pursuant to the planning process under the 
California Natural Communities Conservation Planning (NCCP) Act or 
through completion of a Habitat Conservation Plan (HCP) under Section 
10(a)(1)(B) of the Act (Figure 1 to Sec. 17.41(c)).
    Except for acreage actually located within owl activity centers, 
the Service also proposes that small landowners who own no more than 80 
acres of forest lands within a given SEA in Washington or one of the 
four potential CCPAs in California, as of the publication date of this 
proposed rule in the Federal Register, would be relieved of the general 
prohibition against incidental take. The only exception to this 
proposal would be for any small landowner who owns any or all of the 70 
acres of forested lands closest to an owl site center. The incidental 
take restriction would continue to apply within such 70 acres.
    The Service also proposes to provide landowners within SEAs in 
Washington or potential CCPAs in California additional flexibility for 
avoiding incidental take liability if their lands are intermingled with 
Federal matrix or Adaptive Management Area (AMA) lands. In such 
situations, non-Federal landowners would be provided the alternative 
option at their choosing of adopting the final harvest prescriptions 
delineated for the surrounding Federal matrix or AMA lands, in lieu of 
management practices which comply with current incidental take 
restrictions. The one exception to this policy would [[Page 9486]] be 
where the adoption of final matrix or AMA harvest prescriptions could 
result in the incidental take of an owl whose site center is located 
within a Forest Plan reserve or Congressionally reserved or 
Administratively withdrawn areas. In such a case, the incidental take 
restrictions would continue to apply for at least two more years, 
pending review of the status of owls in affected reserve or withdrawn 
areas.
    For Tribal forest lands in Washington and California, the Service 
proposes to lift the Federal prohibition against the incidental take of 
the spotted owl except for harvest activities within the immediate 70 
acres around a site center. Timber harvests conducted in accordance 
with Tribal resource regulations would not be subjected to any 
additional Federal prohibitions against incidental take of the owl.
    Additionally, the Service proposes to include a ``sunset'' 
provision that would lift the incidental take restrictions within an 
SEA or CCPA once the owl conservation goals for that area are achieved. 
The Service also proposes to provide a ``safe harbor'' of certainty for 
harvest activities within SEAs or CCPAs where more than 40 percent 
suitable owl habitat would be retained after harvest within an owl's 
median annual home range. In those instances where the ``safe harbor'' 
provision would apply, landowners would not be subject to a take 
prohibition violation under any circumstances should an incidental take 
of an owl nevertheless occur despite the landowner's efforts to avoid 
take. The ``safe harbor'' provision would not apply, however, to any 
timber harvest activities within the closest 70 acres of suitable owl 
habitat surrounding an owl site center regardless of the percentage of 
suitable owl habitat left within an owl's median annual home range.
    In addition, the proposal sets out a new approach to provide 
incentives to non-Federal landowners to restore or enhance degraded 
spotted owl habitat, or to maintain existing suitable owl habitat, 
without being penalized if their conservation efforts subsequently 
attract spotted owls.

Definitions

    As used in this proposed rule:
    ``Activity center'' means the closest 70 acres of suitable habitat 
around the nest tree of a pair of owls or around the primary roost of a 
non-nesting pair or territorial single owl (see ``site center'').
    ``Adaptive management area'' means the ten landscape units that 
were adopted in the April 13, 1994, Record of Decision for development 
and testing of technical and social approaches to achieving specific 
ecological, economic, and other social objectives.
    ``Administratively withdrawn area'' means lands that are excluded 
from planned or programmed timber harvest under current agency planning 
documents or the preferred alternative for draft agency planning 
documents.
    ``California Conservation Planning Area (CCPA)'' means areas in 
which the State of California Resources Agency could conduct planning 
for spotted owls under the auspices of the California Natural 
Communities Conservation Planning Act (CNCCPA) of 1991.
    ``Congressionally reserved area'' means those lands with 
Congressional designations that preclude timber harvest, as well as 
other Federal lands not administered by the Forest Service or Bureau of 
Land Management, including National Parks and Monuments, Wild and 
Scenic Rivers, National Wildlife Refuges, and military reservations.
    ``Conservation'' as defined in the Endangered Species Act generally 
means the use of all methods and procedures that are necessary to bring 
any endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary.
    ``Demographic support'' refers to the effects on a population from 
a combination of births and deaths such that the net result is a stable 
or increasing population. For the spotted owl this would occur through 
provision and maintenance of: (1) Both suitable and dispersal habitat 
to support individual owls; (2) small clusters or larger groups of 
successfully breeding owls; and (3) the successful interaction and 
movement between individuals and pairs.
    ``Dispersal'' refers to movements through all habitat types by: (1) 
juvenile spotted owls from the time they leave their natal area until 
they establish their own territory; (2) non-territorial single spotted 
owls; or (3) displaced adults searching for new territories.
    ``Dispersal habitat'' means forest stands with adequate tree size, 
structure, and canopy closure to provide--(1) cover for dispersing owls 
from avian predators; and (2) foraging opportunities during dispersal 
events.
    ``Federal reserve'' or ``Forest Plan reserve'' means those Federal 
lands delineated in the April 13, 1994, Record of Decision in which 
programmed timber harvest is not allowed and is otherwise severely 
limited. There are two types of reserves--late-successional reserves, 
which are designed to produce contiguous blocks of older forest stands, 
and riparian reserves, which consist of protected strips along the 
banks of rivers, streams, lakes, and wetlands which act as a buffer 
between these water bodies and areas where timber harvesting is 
allowed.
    ``Habitat Conservation Plan'' (HCP) means an agreement between the 
U.S. Fish and Wildlife Service and either a private entity, local or 
county government or State under section 10(a)(1)(B) of the Act that 
specifies conservation measures that would be implemented in exchange 
for a permit that would allow the incidental take of a listed species.
    ``Home range'' means the area a spotted owl uses and traverses in 
the course of normal activities in fulfilling its biological needs 
during the course of its life span.
    ``Incidental Take'' means any taking otherwise prohibited, if such 
taking is incidental to, and not the purpose of, the carrying out of an 
otherwise lawful activity.
    ``Matrix'' means those Federal lands generally available for 
programmed timber harvest which are outside of the Congressionally 
reserved and Administratively withdrawn areas, Federal reserves and 
adaptive management areas as delineated in the Standards and Guidelines 
adopted in the April 13, 1994, Record of Decision.
    ``Province'' or ``Physiographic Province'' means one of twelve 
geographic areas throughout the range of the northern spotted owl which 
have similar sets of biological and physical characteristics and 
processes due to effects of climate and geology which result in common 
patterns of soils and broad-scale vegetative communities.
    ``Record of Decision'' means the April 13, 1994, Record of Decision 
for Amendments to Forest Service and Bureau of Land Management Planning 
Documents Within the Range of the Northern Spotted Owl (USDA/USDI 
1994).
    ``Site Center'' means the actual nest tree of a pair of spotted 
owls or the primary roost of a non-nesting pair or territorial single 
owl.
    ``Special Emphasis Area (SEA)'' means one of six specific areas in 
the State of Washington where the Service has determined that it would 
be necessary and advisable to continue to apply broad protection from 
incidental take to support conservation efforts for the spotted owl.
    ``Suitable Habitat'' means those areas with the vegetative 
structure and composition that generally have been found to support 
successful nesting, roosting, and foraging activities of a territorial 
single or breeding pair of spotted owls. Suitable habitat is 
[[Page 9487]] sometimes referred to as nesting, roosting, and foraging 
(NRF) habitat.
    ``Take'' means to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or to attempt to engage in any such conduct 
with respect to a spotted owl.
    ``Threatened Species'' means a plant or wildlife species defined 
through the Endangered Species Act that is likely to become within the 
foreseeable future an endangered species throughout all or a 
significant portion of its range.
    ``Timber harvest and related activity'' means any activity that 
would result in the removal or degradation of suitable habitat.

Background

Regulatory History of the Northern Spotted Owl

    The Service listed the northern spotted owl as a threatened species 
on June 26, 1990, because of the past and continued projected loss of 
suitable habitat throughout its range (55 FR 26114). This habitat loss 
has been caused primarily by timber harvesting, but has been 
exacerbated by the effects of catastrophic events such as fire, 
volcanic eruption, and wind storms.
    The inadequacy of regulatory mechanisms existing in 1990 under 
State and Federal law also contributed to the decision to list the 
northern spotted owl as a threatened species. During the period 
immediately prior to listing, when the status of the owl was under 
review, the annual Federal timber harvest in Oregon and Washington 
averaged approximately 5 billion board feet per year. Much of that 
harvest comprised suitable spotted owl habitat. Thus, Federal timber 
harvest policies at that time contributed significantly to the decline 
of the owl.
    State protection for the owl in 1990 was also inadequate. Since 
that time, California, Oregon and Washington have all recognized the 
plight of the owl and have adopted forest management rules designed to 
protect this threatened species. The degree of protection accorded the 
northern spotted owl currently varies under State law. The northern 
spotted owl is listed under Washington law as an endangered species, 
under Oregon law as threatened, and under California law as a sensitive 
species.
    On January 15, 1992, the Service designated critical habitat for 
the northern spotted owl (57 FR 1796). The critical habitat designation 
encompassed 6.9 million acres of Federal land in 190 critical habitat 
units in the States of California, Oregon, and Washington; non-Federal 
lands were not included in the critical habitat designation. Of the 
total acreage that was designated, 20 percent is in California, 47 
percent is in Oregon, and 32 percent is in Washington.
    Following the April 2, 1993, Forest Conference in Portland, Oregon, 
President Clinton established a Forest Ecosystem Management Assessment 
Team (FEMAT) to develop options for the management of Federal LSOG-
forest ecosystems to provide habitat that would support stable 
populations of species associated with late-successional forests, 
including the northern spotted owl. FEMAT developed ten options for the 
management of LSOG-forest ecosystems on Federal lands in California, 
Oregon, and Washington, which are outlined in the Team's report, 
``Forest Ecosystem Management: An Ecological, Economic, and Social 
Assessment'' (USDA et al. 1993). On July 1, 1993, the President 
identified Option 9 as the preferred alternative for amending the 
Federal agencies' land management plans with respect to LSOG forest 
habitat. A modified version of Option 9 was adopted in the April 13, 
1994, Record of Decision for Amendments to Forest Service and Bureau of 
Land Management Planning Documents Within the Range of the Northern 
Spotted Owl (ROD). It is based on a system of late-successional 
reserves, riparian reserves, adaptive management areas, and a matrix of 
Federal lands interspersed with non-Federal lands. These designations 
complemented existing Administratively withdrawn and Congressionally 
reserved lands.
    The adoption of the Forest Plan was subsequently upheld in Federal 
court. On December 21, 1994, Federal District Court Judge William L. 
Dwyer rejected plaintiffs' challenges and issued an order upholding the 
President's Forest Plan.
    An underlying premise for the President's selection of the Forest 
Plan was that Federal lands should carry a disproportionately heavier 
burden for providing for the conservation of the northern spotted owl, 
enabling an easing of restrictions on incidental take for the owl on 
large areas of non-Federal lands. President Clinton thus directed the 
U.S. Fish and Wildlife Service to issue regulations pursuant to section 
4(d) of the Act looking to ease, where appropriate, restrictions on the 
incidental take of spotted owls on non-Federal lands.
    On December 29, 1993, the Service published in the Federal Register 
a Notice of Intent (NOI) to prepare an Environmental Impact Statement 
in support of a 4(d) rule for the spotted owl (58 FR 69132). The NOI 
spelled out various alternative approaches for a 4(d) rule, including a 
preferred approach or proposed action. This provided a preliminary 
opportunity for public input prior to the actual publication of this 
proposed rule.

Summary of Public Comments on Scoping Notice on 4(d) Rule

    The Service received more than 8,500 comments from the public on 
its scoping notice for a section 4(d) rule EIS for the spotted owl. 
Most comments received were in response to a January 3, 1994, special 
mailer sent by the Service to approximately 80,000 recipients. The 
Service specifically asked for suggestions on issues to be addressed in 
the 4(d) rule. In general, the comments reinforced issues and concerns 
identified in previous planning efforts for the spotted owl.
    In the scoping notice, the Service sought comments on ten specific 
issues. The comments received are summarized below, by issue:
    (1) Biological, commercial, trade, or other relevant data on the 
distribution and abundance of the northern spotted owl on non-Federal 
lands in California, Washington and Oregon.
    No new data or information was provided to the Service relative to 
this issue.
    (2) Biological, commercial, trade or other relevant data on the 
distribution and abundance of the northern spotted owl that identifies 
the effects of the alternatives for a section 4(d) rule on the northern 
spotted owl.
    No new data or information was provided to the Service relative to 
this issue.
    (3) The scope of the issues that have been identified for the 
environmental impact statement on a proposed special rule.
    In addition to the issues identified in the scoping notice, 
commenters identified several additional issues for the Service to 
consider. Several commenters objected to any provision requiring that 
40 percent of suitable habitat be retained within the median annual 
home range circle of an owl located within SEAs, and, because it means 
that 60 percent of suitable habitat within a home range may be lost, 
requested an explanation of the biological basis for such a provision. 
They also requested that the Service consider how habitat modification 
on non-Federal land will affect owls on adjacent Federal lands.
    Comments from non-Federal landowners requested that the Service 
consider the possible economic benefits of a variety of silvicultural 
regulations [[Page 9488]] to protect owl habitat. They also asked that 
the Service evaluate whether the SEA concept fully takes into account 
the contributions already provided by State agencies and those already 
in place on Federal lands, and whether the regulatory burden of the 
SEAs is disproportionate to the benefits.
    (4) The range of alternatives that have been identified for the 
environmental impact statement on a proposed special rule.
    A number of commenters provided suggestions for additional 
alternatives for Service consideration. These included requests to 
increase or relieve the prohibitions against incidental take, to 
consider the development of a program based entirely on voluntary 
participation by forest land managers, to not use SEAs and use only 70 
acre owl circles rangewide, and to provide incidental take protection 
only to landowners who sell to domestic markets. Some commenters 
requested that the Service provide an alternative with incentives for 
growing habitat, or to buy or exchange land instead of promulgating a 
section 4(d) rule. Another suggestion was to transplant spotted owls 
rather than use a special rule to provide for connectivity, and depend 
on Federal lands to provide the land base for connectivity.
    Other suggested alternatives included using existing exceptions to 
prohibitions, such as the HCP process, in combination with a final 
recovery plan for the owl; protecting previously proposed critical 
habitat on private lands in addition to, or instead of, the SEAs; and 
applying the 50-11-40 rule to SEAs in addition to, or instead of, 
retaining 40 percent of suitable habitat within a home range.
    Modifications of the alternatives were also suggested. Some 
examples include replacing the SEAs in Washington with the areas 
proposed to the Washington Forest Practices Board in a report by the 
Spotted Owl Scientific Advisory Group (SAG report), to add an SEA for 
southwestern Washington, and to reduce or exclude the Olympic Peninsula 
SEA.
    Comments specific to California alternatives included requests to 
provide a separate 4(d) rule for California; to apply the Washington/
Oregon approach with SEAs to California; to repeal existing owl rules 
and designate specific ``no take'' areas; and to maintain existing 
prohibitions of take and adopt the California Board of Forestry's new 
late-successional forest rules.
    (5) Input on how suitable habitat for the marbled murrelet should 
be identified and how it should be protected, and data on marbled 
murrelet distribution and abundance on non-Federal lands.
    Numerous comments were received on the marbled murrelet, with most 
stating that it is inappropriate to include the murrelet in the 
regulatory process for the spotted owl because not enough information 
about murrelets is available at this time to attempt a regulatory 
definition of incidental take, and that any rule for the murrelet 
should be done separately. One commenter stated that the Service should 
consider adopting an interim 4(d) rule for marbled murrelets that can 
be refined at a later date because they are associated with the same 
forest ecosystem as the spotted owl, and that all suitable murrelet 
habitat should be addressed including marine habitat. Another suggested 
that, in identifying marbled murrelet habitat, the emphasis should be 
on a definition that recognizes large contiguous areas of habitat 
capable of supporting large numbers of birds, and not on defining the 
lowest possible quantity and stand size used.
    (6) Input on the use of ``local options'' to allow individuals to 
propose adjustment to prohibitions against take of northern spotted 
owls without going through the normal habitat conservation planning 
process.
    The potential use of the local option plan was responded to 
favorably by many commenters. Most said that a ``local option'' plan 
should be included as an additional tool to protect owls and to provide 
landowner flexibility, and that these should provide the same legal 
protection as HCPs. Others stated that the rule should provide 
flexibility for applying local options based on the expertise and 
knowledge of State forestry associations, State governments, and forest 
landowners.
    (7) Consideration of a small landowner exemption for non-commercial 
forest land of ten acres or less.
    Many commenters addressed this issue with the majority recommending 
that the Service carefully examine and explain the rationale and 
biological basis for such an exemption, and suggesting that any 
provision to have less restrictive measures for small landowners would 
unfairly shift the burden of responsibility to the larger landowners. 
Others suggested that such an exemption may tend to break large 
ownerships into smaller ownerships. Some expressed the view that while 
appealing, it may set up an arbitrary distinction between landowners 
based on size, and that the 10 acre size specified in the scoping 
notice was too small to be meaningful.
    (8) Boundaries of the SEAs in the proposed action, including the 
impacts and effects of alternative boundaries.
    Few suggestions were received relative to specific boundary 
changes. Many comments were received regarding the number of SEAs, the 
designation or lack of designation of specific SEAs, and the general 
use of the SEA concept. Among the comments specific to the boundaries 
was the suggestion that the Mineral Block and I-90 Corridor SEAs should 
extend no farther west than necessary to provide reasonable 
connectivity between the Federal conservation areas to the north and 
south.
    Regarding the Olympic Peninsula SEA, comments included the 
assertion that there should be no SEA on the Olympic Peninsula because 
Federal lands should be relied on for owl conservation in this area. 
Another suggestion was that the Service move the southern boundary of 
the proposed Olympic Peninsula SEA northward to run east and west from 
the southern boundary of the Olympia National Forest. It was further 
suggested that only the State of Washington's Olympic Experimental 
Forest be included in the SEA for the Olympic Peninsula, and that this 
SEA be rescinded following the approval of an HCP for the State Forest.
    Many commenters were specifically concerned about the failure to 
designate the White Salmon landscape as an SEA to provide demographic 
interchange between owls on the Yakima Indian Reservation and Federal 
lands in the eastern Washington Cascades. Other commenters noted that 
there is no demonstrated need for an SEA in the White Salmon or Hood 
River areas.
    Many commenters asked that the Service provide the scientific basis 
for determining the configurations and boundaries of the SEAs. There 
were further suggestions that for SEA boundaries, the rule must specify 
the requirements of ``owl shadows'' (restrictions on adjacent lands 
near an owl site center) both within and outside of SEA's. Some 
commenters stated that the Service should eliminate all SEAs as they 
would provide further harvest restrictions which would be unduly 
burdensome, and that they go beyond the Act by mandating conservation 
measures on privately owned land.
    (9) Possible mitigation measures, such as multi-species Habitat 
Conservation Plans or conservation agreements that provide long-term 
enforceable and protective land management prescriptions for non-
Federal lands.
    Several commenters referenced the use of the HCP process, 
requesting that the Service clarify the relationship 
[[Page 9489]] between HCPs and the 4(d) rule. Specifically, they asked, 
in the absence of an SEA designation, what guarantees would there be 
that habitat will be protected between the time the 4(d) rule goes into 
effect (and relief is granted) and the time HCPs are completed. There 
was also concern expressed that there may be a lack of incentives for 
other landowners to develop HCPs if there is no SEA designated. Others 
suggested the 4(d) rule state that it will not apply to lands covered 
by an approved HCP. Specific to California were recommendations that 
the Service encourage the State to continue to recognize Federally 
approved HCPs as a valid means of complying with regulations the State 
adopts as a result of the 4(d) process.
    (10) Retention of Federal incidental take restrictions for Indian 
forest lands included within the boundary of an SEA.
    Many comments were received regarding this issue, and most 
suggested that it may be inappropriate to impose Federal take 
prohibitions on tribal lands. One commenter stated that in promulgating 
the special rule, the Service should direct attention to the special 
status of Indian tribal lands as distinct and separate in treatment 
from other non-Federal State and private lands; the Service should 
adopt a special rule that exempts Indian forest lands from the 
prohibitions against incidental take, including any that may be in 
SEAs.
    Some proponents of owl protection stated that the Service should 
not lift take prohibitions on tribal lands in the absence of criteria 
to ensure that the owl is adequately protected by tribal management 
practices. They noted that progress on the part of the tribes is 
variable, and this should be evaluated before lifting restrictions 
within SEAs. Others commented that the special rule should ensure that 
measures governing incidental take of the owl on Indian forest lands 
contribute to the conservation of the species.
    In addition to the ten issues for which the Service requested 
input, comments were received on numerous other issues relative to the 
proposed action. Three general areas of interest were common in the 
comments from non-industrial landowners--(1) the proposed section 4(d) 
rule was a disincentive to grow habitat for spotted owls and to 
practice good silviculture; (2) the proposed rule represented an 
unconstitutional taking of private property and that private landowners 
should be compensated; and (3) the proposed 4(d) rule places an unfair 
burden on non-Federal lands and actually provides little relief to 
private lands.
    Comments from industrial landowners included a request for ``safe 
harbor'' from prosecution if the requirements of the 4(d) rule were met 
and more that 40 percent suitable habitat was left within an owl circle 
after harvest; and the suggestion that the 4(d) rule assist in 
addressing the issue of access across Federal lands to non-Federal 
lands. Concern also was expressed about potential conflict with anti-
trust laws when implementing, among several landowners, the requirement 
that 40 percent suitable habitat be left within a home range circle, 
and some asked that an anti-trust exemption be provided for multiple 
landowners who have to deal with landscape issues. One commenter also 
asserted that the creation of SEAs is a de facto designation of 
critical habitat that must comply with the requirements of 
Sec. 4(B)(2). Several commenters stated that there is no legal basis 
under the Act for burdening private lands with recovery of a threatened 
species, and that the 4(d) rule was essentially a recovery mechanism 
being forced on private lands.
    Proponents of spotted owl protection alleged that the scientific 
basis for the proposed action is unclear, and it is particularly 
unclear in how it relates to the recovery standards and objectives for 
the owl. They suggested that any special rule for the spotted owl must 
be part of a coordinated recovery approach among all Federal agencies 
with responsibility for the owl. There were numerous references to the 
SAG report, and that the special rule should provide the level of 
protection as proposed in the SAG report.
    Several commenters asked that the rule provide clearer definitions 
for ``take'' and ``suitable habitat.'' There were requests for 
information on the land ownership within SEAs, the number of owls 
present, and the anticipated level of incidental take. Others also 
requested information regarding the specific acreage of State and 
private lands off limits to harvest under the proposed action. There 
also were questions about how the rule would describe and determine the 
70 acres to be protected around active spotted owl nests outside of 
SEAs.
    After reviewing these public comments, as well as other owl 
management strategies and analyses, the Service now proposes this 
special rule in response to the President's directive to review the 
blanket set of incidental take prohibitions for the northern spotted 
owl that has been in effect since the listing. In particular, this 
proposed rule would relax incidental take restrictions for the owl for 
timber harvests for certain non-Federal lands in Washington and 
northern California. This proposed special rule excludes Oregon, 
however, and does not propose any changes in the regulatory 
prohibitions to protect the owl which are currently applicable within 
that State. In March and December 1994, the Service received letters 
from the Oregon Congressional Delegation requesting that further work 
on a 4(d) rule for Oregon be suspended to provide an opportunity for 
consensus to emerge among State officials and private landowners on a 
strategy for the conservation of the spotted owl. Recognizing the 
benefits that such a consensus approach offers, the Service agreed in 
May 1994, to suspend further work on a federally developed 4(d) special 
rule proposal for Oregon in order to encourage the development of a 
``stakeholder'' based ``Oregon Alternative''.
    The Governor's office in Oregon has taken the lead in working 
cooperatively with non-Federal landowners through the Oregon Forest 
Industries Council, Oregon Small Woodlands Association, Northwest 
Forestry Association, Douglas County, and others to develop an 
alternative owl conservation strategy. The Service is supportive of 
this approach and is willing to review and consider any State 
conservation proposal which results from this process.
    Under the existing regulatory structure implementing section 4(d) 
of the Endangered Species Act, each section 4(d) ``special rule'' for a 
threatened species must contain all of the applicable prohibitions and 
exceptions for that species throughout its range (50 CFR 17.31(c)). 
Thus, in the past, Oregon would have been included in this proposed 
4(d) rule, even if only to preserve the current regulatory status quo 
protecting the spotted owl in Oregon.
    In reviewing the request for exclusion from Oregon, the Service has 
assessed whether it would be advantageous to adopt a new approach for 
dealing with special rule situations in the future by authorizing the 
revision of a listing of a threatened species through the subsequent 
publication of a special rule that covers only part of, but not all of, 
the range of the species. Under this approach, the general prohibitions 
and exceptions applicable to threatened species not covered by special 
rules would continue to apply in that part of the range of the species 
not included under the provisions of a subsequent special rule. After 
consideration of the [[Page 9490]] relevant factors on this matter, the 
Service has decided to adopt this new approach for special rules and is 
simultaneously proposing additional technical amendments to 50 CFR 
17.11 and 50 CFR 1731(c) to accomplish this change.
    In the specific case of the northern spotted owl, the owl was 
originally listed as threatened without a special rule, and is subject 
to the same general prohibitions and exceptions which are applicable to 
endangered species pursuant to the current provisions of 50 CFR 
17.31(a). These general prohibitions include a rangewide prohibition 
against the incidental take or harm of an owl. These prohibitions apply 
throughout the owl's range, including the State of Oregon. The Service 
now proposes a section 4(d) special rule for the owl that applies only 
to the States of Washington and California. Because the proposal for a 
special rule only encompasses Washington and California, under its 
current formulation owls in Oregon would remain fully protected against 
incidental take or harm under the prohibitions established for the owl 
when it was originally listed. As previously noted, the Service is 
presently proposing the requisite technical changes to 50 CFR 17.11 and 
50 CFR 17.31(c), as discussed above, to allow for the issuance of a 
special rule that applies to only part of the range of a threatened 
species like the spotted owl, while retaining the original protective 
prohibitions for the remainder of the species' range in Oregon.
    If a new ``Oregon Alternative'' proposal for the owl is 
subsequently developed which is found to be consistent with the 
requirements of the Act, the Service will initiate an analysis of the 
new proposal under the National Environmental Policy Act and initiate 
appropriate regulatory proceedings at that time.

Section 4(d) of the Endangered Species Act

    The scope and authority for this proposed rule stems from section 
4(d) of the Act, which grants the Secretary of the Interior broad 
administrative discretion to promulgate regulations that he deems to be 
necessary and advisable to meet the conservation objectives for a 
threatened species. The section also confers authority to the Secretary 
to apply to a threatened species any or all of the prohibitions against 
take that the Act makes expressly applicable to endangered species. The 
pertinent parts of section 4(d) provide:
    * * *Whenever any species is listed as a threatened species 
pursuant to subsection (C) of this section, the Secretary shall issue 
such regulations as he deems necessary and advisable to provide for the 
conservation of such species. The Secretary may by regulation prohibit 
with respect to any threatened species any act prohibited under section 
9(a)(1) . . . with respect to endangered species.* * *
    As applied, this provision empowers the Service to promulgate a 
special rule which adopts species-specific protective regulations upon 
listing a species as threatened. Such a special rule may include 
imposition of the section 9(a) prohibition against ``take,'' in some or 
all of its particular manifestations, and in all or a portion of the 
species' range, as well as other protective measures. While Congress 
expressly mandated certain protections for endangered species by 
statute (the section 9(a)(1) prohibitions), it intended to provide the 
Service with flexibility in determining what protections are necessary 
and advisable for threatened species. Section 4(d) is that grant of 
rulemaking authority, and it provides the Secretary with broad 
discretion to adopt regulations for the conservation of threatened 
species.
    In many circumstances the Service declines to issue a special rule 
for a threatened species at the time it is listed, often because the 
Service does not have sufficiently specific knowledge or the resources 
necessary to develop a tailor-made rule. In this event, the general 
threatened species regulations at 50 CFR 17.31 come into effect, which 
provide for automatic application to threatened species of the 
prohibitions the Act itself makes applicable to endangered species. 
These ``blanket'' prohibitions act as a ``safety net'' for threatened 
species until such time as the Service determines that it is 
appropriate to issue a special rule for the species.
    This latter course has been followed with respect to the northern 
spotted owl. When the species was listed as threatened in June of 1990, 
the Service did not promulgate a species-specific special take rule 
under Rule 4(d), and thus the blanket prohibitions were triggered into 
effect. The Service now has determined that it is appropriate to issue 
a special rule tailor-made for this species, based on the Service's 
more particularized knowledge about the respective conservation needs 
of the owl across the various portions of its range, and the change in 
LSOG-forest management occasioned by adoption of the Forest Plan. 
Because this proposed rule does not involve regulated take, e.g., 
authorization of private predator control or sport seasons, the 
provisions of section 3(3) regarding examination of population 
pressures are not invoked.
    The adoption of the Forest Plan--a comprehensive, interagency 
strategy for management of Federal-LSOG forests in the owl's range 
designating nearly 7.5 million acres as late-successional reserves--is 
the major predicate for the Service's proposal of this special rule for 
the owl. Upon issuing the Biological Opinion on the Forest Plan, the 
Service stated that the plan ``will accomplish or exceed the standards 
expected for the Federal contribution to recovery of the northern 
spotted owl and assurance of adequate habitat for its reproduction and 
dispersal.'' Thus, the Forest Plan is the primary foundation block for 
owl recovery. This proposed rule would complement the Forest Plan and 
provide for the conservation of the owl by retaining taking 
prohibitions on non-Federal lands in a manner designed to build on the 
protections the Forest Plan has provided. Further, the Service has 
concluded that the owl take prohibitions that would no longer apply 
under this proposed rule are no longer either necessary or advisable to 
provide for the conservation of the owl, especially in light of the 
Forest Plan's adoption.
    In addition, as has been the case in other section 4(d) 
regulations, the proposed rule ultimately would promote overall owl 
recovery efforts in other ways. For example, with respect to a 4(d) 
rule issued for the threatened population of gray wolves (Canis lupus) 
in Minnesota, the Service determined that a government-implemented 
depredation control program that includes the possibility of lethal 
control measures would alleviate a source of public hostility to the 
wolf and would, therefore, be protective of the species (see 50 CFR 
17.40(d)). For the Louisiana black bear (Ursus americanus luteolus), 
the Service promulgated a regulation under section 4(d) that authorized 
the unintentional take of bear incidental to normal forest practices so 
long as suitable habitat diversity for the bear was maintained (see 50 
CFR 17.40(i); 56 FR 588, 593). As another instance, the Service has 
proposed to authorize the take of the threatened coastal California 
gnatcatcher (Polioptila californica californica) incidental to land use 
activities conducted in accordance with a State of California-sponsored 
Natural Community Conservation Plan (58 FR 16758). In the case of the 
northern spotted owl, the Service is coordinating applicability of the 
take prohibition with the comprehensive management strategy in the 
Forest Plan and the [[Page 9491]] initiation of a comprehensive 
campaign to encourage Habitat Conservation Planning in key portions of 
the owl's range.
    Generally, incidental take could involve either the harm or 
harassment of a spotted owl. The harassment of the northern spotted owl 
would occur through disturbance of active nesting pairs or territorial 
single owls within an activity center; harm would result from 
significant owl habitat removal around and beyond spotted owl site 
centers.

Incidental Take of Spotted Owls: ``Harassment''

    Timber harvest and related activities that disturb the breeding and 
nesting functions of spotted owls within activity centers during the 
breeding season can be considered incidental harassment of individual 
spotted owls. Incidental harassment may include activities that could 
result in disturbance of nesting spotted owls or the abandonment of 
eggs, nestlings, or fledgling spotted owls. More specifically, 
incidental harassment of spotted owls generally can include harvest 
activities that occur within the closest 70 acres of suitable habitat 
surrounding a site center during the owl's reproductive period. (The 
reproductive period generally is between March 1 and September 30 of 
each year. These dates may be modified where credible scientific 
information establishes a different time period for a given area.) 
Actions with the potential to disturb nesting spotted owls include, but 
are not limited to, harvest related activities such as felling, 
bucking, and yarding; road construction; and blasting.
    A study by Miller (1989) examined the area used by fledgling 
spotted owl juveniles in Oregon. Radio-telemetry data showed that the 
average amount of nesting, roosting, and foraging habitat used by 
fledgling spotted owls prior to dispersal was approximately 70 acres in 
size. Under existing conditions in many areas, these activity centers 
are seldom evenly distributed around a nest tree. Mortality rates for 
juvenile spotted owls are significantly higher than for adults (Forsman 
et al. 1984, Gutierrez et al. 1985, Miller 1989). Studies of juvenile 
dispersal in Oregon and California indicated that few of the juvenile 
spotted owls survived to reproduce (Miller 1989, Gutierrez et al. 
1985). These research studies all reported very high mortality during 
pre-dispersal.
    Based on this and other information, the Service believes that the 
maintenance of the closest 70 acres of existing suitable (nesting, 
roosting, and foraging) habitat surrounding the nest tree will 
contribute to a secure core area and is crucial to maximize fledgling 
success and to provide a partial buffer against disturbance around the 
site center. To avoid harassment, resident spotted owls are considered 
to be nesting unless surveys conducted during the breeding season 
indicate that not to be the case.

Incidental Take of Spotted Owls: ``Harm''

    To successfully reproduce and maintain populations, studies have 
suggested spotted owls require substantial quantities of suitable 
(nesting, roosting, and foraging) habitat arrayed around their site 
centers.
    A number of radio-telemetry studies have described the quantity and 
characteristics of habitat used by spotted owls. Studies by Hayes et 
al. (1989) found a strong positive relationship between the abundance 
of spotted owls and the percentage of older forests in the study area. 
A similar analysis was performed on data collected by Bart and Forsman 
(1992). The results showed that the number of spotted owls per square 
mile, pairs of owls per square mile, young per square mile, and young 
per pair increased with increasing amounts of older forest within the 
study area. Productivity (number of young fledged per pair) increased 
significantly with increasing amounts of older forest. Productivity in 
areas with greater than 60 percent older forest was approximately three 
times higher than productivity in areas with less than 20 percent older 
forest.
    Documentation in the 1990 Status Review of the Northern Spotted Owl 
(USDI 1990a) indicates that productivity per pair is lowest in areas 
with small amounts of older forest. This strongly suggests that, even 
if some spotted owls persist in such areas, there is reason to believe 
they are not reproducing and surviving at replacement levels.
    The above research findings have supported the determination in the 
past that reduced quantities of suitable habitat are likely to result 
in lower spotted owl abundance and productivity rates. It has also been 
suggested that a significant reduction of nesting, roosting, and 
foraging habitat within the median annual home range of a spotted owl 
pair or resident single creates a much higher risk of adverse effects 
that actually kill or injure owls by significantly impairing essential 
behavioral patterns, including breeding, feeding, and/or sheltering. 
These are the primary elements of effects that ultimately can cause 
harm to, and the incidental take of, spotted owls.
    Recognizing the need to assist the public in avoiding the 
incidental take of listed species, the Fish and Wildlife Service and 
the National Marine Fisheries Service (NMFS) issued a joint policy 
statement on July 1, 1994, committing the agencies to provide as much 
guidance and assistance to the general public as possible so as to 
avoid liability under the ESA for incidental takings (59 FR 34272, 
1994). The policy statement also committed the agencies to designate in 
future listing packages a key contact person within either the Service 
or NMFS, as appropriate, to answer incidental take questions from the 
general public.
    In the particular case of the spotted owl, the Service has 
encouraged the public to conduct owl surveys of property proposed for 
harvest or development, as a primary means of avoiding harassment or 
harm to an owl. The Service has recommended that such surveys be 
conducted according to a March 17, 1992, Service-endorsed survey 
protocol (USFWS 1992), available upon request from the FWS Ecological 
Services State Offices listed below:

Sacramento Field Office, U.S. Fish and Wildlife Service, 2800 Cottage 
Way, Suite E-1803, Sacramento, California 95825, 916-978-4866, Attn: 
Field Supervisor
Oregon State Office, U.S. Fish and Wildlife Service, 2600 S.E. 98th 
Avenue, Suite 100, Portland, Oregon 97266, 503-231-6179, Attn: Field 
Supervisor
Washington State Office, U.S. Fish and Wildlife Service, 3704 Griffin 
Lane S.E., Suite 102, Olympia, Washington 98501-2192, 206-753-9440, 
Attn: Field Supervisor

Biology of the Northern Spotted Owl

    The spotted owl is a long-lived bird that has a high degree of 
nest-site fidelity within an established territory. This proposed rule 
incorporates, by reference, recent documents addressing the biology and 
ecology of the spotted owl, its habitat, and associated management 
strategies in Washington, Oregon, and California, including: the final 
rules listing the spotted owl as threatened and designating its 
critical habitat; the Interagency Scientific Committee (ISC) report 
(Thomas et al. 1990); the Scientific Analysis Team report (Thomas et 
al. 1993); the final draft Recovery Plan for the Northern Spotted Owl 
(USDI 1992); the Forest Ecosystem Management Assessment Team (FEMAT) 
report (USDA et al. 1993); the supporting documents for the Forest Plan 
(USDA/USDI 1994 a and b); and the Contribution of Federal and Non-
Federal Habitat to Persistence of the Northern Spotted Owl on the 
Olympic Peninsula, Washington [[Page 9492]] (Holthausen et al. 1994). 
The proposed rule also considered the Washington Spotted Owl Scientific 
Advisory Group reports (Hanson et al. 1993 and Buchanan et al. 1994).
    The range of the spotted owl has been divided into 12 physiographic 
provinces (USDA/USDI 1994a): the Eastern and Western Cascades, Western 
Lowlands, and Olympic Peninsula Provinces in Washington; the Eastern 
and Western Cascades, Coast Range, Willamette Valley, and Klamath 
Provinces in Oregon; and the Klamath, Coast, and Cascades Provinces in 
California. The Klamath province was divided into two subprovinces by 
State--the Oregon Klamath Province and the California Klamath 
Province--even though the two provinces are part of the same geographic 
area (Figure 4 to Sec. 17.41(c)).

Habitat Characteristics

    Northern spotted owls generally have large home ranges and use 
large tracts of land containing significant acreage of older forest to 
meet their biological needs. The median annual home range size of a 
northern spotted owl, which varies in size from province to province, 
is approximated by a circle centered on an owl site center. Estimated 
median annual home range sizes represent the area used by half of the 
spotted owl pairs or resident singles studied to date within each 
province to meet their annual life history needs.
    Home range sizes were estimated by analyzing radio-telemetry home 
range data from studies conducted on the annual movements of spotted 
owl pairs, referenced in the 1990 Status Review (1990a) and the 
Interagency Scientific Committee report (Thomas et al. 1990).
    Based on studies of owl habitat preferences, including habitat 
structure and use and prey preference throughout the range of the owl, 
spotted owl habitat consists of four components: (1) Nesting, (2) 
roosting, (3) foraging, and (4) dispersal. Although this habitat is 
variable over the range of the spotted owl, some general attributes are 
common to the owl's life-history requirements throughout its range. The 
age of a forest is not as important for determining habitat suitability 
for the northern spotted owl as the structure and composition of the 
forest. Northern interior forests typically may require 150 to 200 
years to attain the attributes of nesting and roosting habitat; 
however, characteristics of nesting and roosting habitat are sometimes 
found in younger forests, usually those with significant remnant trees 
from earlier late-successional stands.
    The attributes of superior nesting and roosting habitat typically 
include a moderate to high canopy closure (60 to 80 percent closure); a 
multi-layered, multi-species canopy with large overstory trees; a high 
incidence of large trees with various deformities (e.g., large 
cavities, broken tops, mistletoe infections, and debris accumulations); 
large accumulations of fallen trees and other debris; and sufficient 
open space below the canopy for owls to fly (Thomas, et al. 1990).
    Spotted owls use a wider array of forest types for foraging, 
including more open and fragmented habitat. Habitat that meets the 
spotted owl's need for nesting and roosting also provides foraging 
habitat. However, some habitat that supports foraging may be inadequate 
for nesting and roosting. In much of the species' northern range, 
large, dense forests are also chosen as foraging habitat, probably 
because they provide relatively high densities of favored prey, the 
northern flying squirrel (Glaucomys sabrinus), as well as cover from 
predators. Because much of the flying squirrel's diet is fungal 
material, old decadent forests provide superior foraging habitat for 
owls. In southern, lower-elevation portions of the owl's range, the 
species often forages along the edges of dense forests and in more open 
forests, preying on the dusky-footed woodrat (Neotoma fuscipes).
    In general terms, suitable habitat means those areas with the 
vegetative structure and composition necessary to provide for 
successful nesting, roosting and foraging activities sufficient to 
support a territorial single or breeding pair of spotted owls. Suitable 
habitat is sometime referred to as nesting, roosting and foraging (NRF) 
habitat.
    Although habitat that allows spotted owls to disperse may be 
unsuitable for nesting, roosting, or foraging, it provides an important 
linkage among blocks of nesting habitat both locally and over the range 
of the northern spotted owl. This linkage is essential to the 
conservation of the spotted owl. Dispersal habitat, at a minimum, 
consists of forest stands with adequate tree size and canopy closure to 
provide some degree of protection to spotted owls from avian predators 
and to allow the owls to forage at least occasionally.
    Suitable and dispersal habitat vary by province and are described 
separately under the discussion of each province in the following 
section.
Discussion of Spotted Owl Provinces by State

    As previously noted, the range of the northern spotted owl has been 
subdivided into 12 separate provinces (Figure 4 to Sec. 17.41(c)). For 
purposes of this rule, the Klamath province has been divided into two 
provinces by State--the California Klamath province and the Oregon 
Klamath province--even though the two provinces are part of the same 
geographic area. In California, the three provinces are the California 
Cascades, California Klamath, and California Coast. The Oregon Coast 
Ranges, Willamette Valley, Oregon Klamath, Western Oregon Cascades, and 
Eastern Oregon Cascades constitute the five provinces of Oregon. The 
four Washington provinces are the Eastern Washington Cascades, Western 
Washington Cascades, Western Washington Lowlands, and the Olympic 
Peninsula. Only the seven provinces in Washington and California are 
the subject of incidental take prohibition modifications under this 
proposed rule and will therefore be discussed in more detail below.

Washington

1. Washington Olympic Peninsula Province
    The Washington Olympic Peninsula province is bordered by the 
Pacific Ocean on the west, the Straits of Juan de Fuca on the north, 
Hood Canal on the east, and State Highway 12 to the south (Figure 4 to 
Sec. 17.41(c)). Of the three million acres in the province, 
approximately 51 percent are in Federal ownership. The central portion 
of the province is high, mountainous terrain, surrounded by lower 
elevation forest that provides habitat for the spotted owl. Almost all 
Federal lands on the Peninsula have either been designated as a late 
successional or riparian reserves under the Forest Plan or have been 
Congressionally withdrawn from timber harvest; only 8,400 acres of 
Federal forest land on the Peninsula are available for programmed 
timber harvest. In general, the province is demographically isolated 
from other parts of the owl's range. Natural catastrophic events such 
as windstorms and wildfires are threats that have the capability of 
destroying thousands of acres of habitat.
    The recent report by Holthausen et al. concluded that ``* * * it is 
likely, but not assured, that a stable population of owls would be 
maintained * * *'' on Federal lands in the Olympic Peninsula Province. 
However, the report also notes it would be ``unlikely'' that owls would 
persist on ``* * * the western coastal strip of the National Park, * * 
*'' if non-Federal habitat on the western side of the Peninsula were 
excluded from current Federal protection for owls. The report went on 
to explain that ``the retention of non-Federal habitat in the 
[[Page 9493]] western portion of the peninsula was particularly 
significant and provided for a larger area of core habitat on Federal 
land in model analyses. In addition, the retention of this habitat 
would likely increase the chances of maintaining a population on the 
coastal strip of the Olympic National Park.'' When comparing the 
relative value of an SEA on the western side of the Peninsula with a 
possible SEA on the northern side of the Peninsula, the report noted 
that the western SEA ``made a much greater contribution to owl numbers 
and occupancy rates than did the northern SEA * * *. Mean numbers of 
pairs over the 100-year simulation was as large with the western SEA 
alone as with both SEAs.'' Thus, non-Federal lands on the northern 
portion of the Peninsula were not viewed as having any appreciable 
capability of making a significant contribution to the long-term 
conservation of the spotted owl on the Olympic Peninsula.
    Finally, the report stated that attempts to maintain a ``habitat 
connection across southwestern Washington * * * would have little 
effect on the status of the owl population on the Peninsula if that 
population was stable or nearly stable.'' In other words, recent 
analysis suggests that the likelihood of addressing past concerns about 
the need to connect the Olympic Peninsula owl population to 
southwestern Washington owls in order to maintain a viable population 
is very low, given current conditions, especially when relying on the 
application of incidental take prohibitions. According to Holthausen, 
et. al, ``* * *  the populations of owls on the Peninsula is 
sufficiently large to avoid any short to mid-term loss of genetic 
variation, * * *'' Except for the western portion of the Peninsula 
where non-Federal lands are still important, the major problem for owls 
on the Peninsula is the past loss of suitable habitat on Federal lands.
    a. NRF Habitat. NRF habitat on the Olympic Peninsula consists, as a 
general matter, of coniferous or mixed coniferous/hardwood forest with 
multiple canopy layers; multiple large overstory conifers greater than 
20 inches in diameter at breast height (dbh); and total canopy closure 
among dominant, co-dominant and understory trees of greater than 60 
percent.
    b. Dispersal Habitat. Dispersal habitat on the Olympic Peninsula 
consists, as a general matter, of coniferous or mixed coniferous/
hardwood forest with smaller dominant trees or lower canopy closure 
than NRF habitat; multiple canopy layers of multiple large overstory 
conifers greater than 10 inches dbh; and a total canopy closure among 
dominant, co-dominant and understory trees of greater than 60 percent.
2. Western Washington Lowlands Province
    This province consists of the lowlands outside of the Olympic 
Province that extend east from the Pacific Ocean to the western 
foothills of the Washington Cascades (Figure 4 to Sec. 17.41(c)). The 
Canadian border forms the northern boundary and the Columbia River the 
southern boundary of the province. Forest lands in the north and 
central portions of the province along Puget Sound have been converted 
to agricultural, industrial and urban areas. The southwestern portion 
is dominated by commercial tree farming. Of the 6.5 million acres 
within this province, only one percent is under Federal management.
    a. NRF Habitat. NRF habitat in the Western Washington Lowlands 
consists, as a general matter, of coniferous or mixed coniferous/
hardwood forest with multiple canopy layers; multiple large overstory 
conifers greater than 20 inches dbh; and total canopy closure among 
dominant, co-dominant and understory trees of greater than 60 percent.
    b. Dispersal Habitat. Dispersal habitat in the Western Washington 
Lowlands consists, as a general matter, of coniferous or mixed 
coniferous/hardwood forest with smaller dominant trees or lower canopy 
closure than NRF habitat; multiple canopy layers of multiple large 
overstory conifers greater than 10 inches dbh; and a total canopy 
closure among dominant, co-dominant and understory trees of greater 
than 60 percent.
    Spotted owls in this province have extremely low population levels 
due to isolation of populations within the province and limited 
nesting, roosting, and foraging habitat. The limited amount of habitat 
in this province also contributes to the demographic isolation of the 
Olympic Peninsula Province. As noted previously in the discussion on 
the Olympic Peninsula, however, the recent study by Holthausen et al. 
suggested that even substantial conservation efforts in Southwest 
Washington would be unlikely to make any meaningful contribution to 
maintaining a stable, long-term population of owls on the Olympic 
Peninsula. Thus, while Southwest Washington is important as part of the 
historic range of the owl, the continued application of blanket 
incidental take prohibitions to the exceptionally limited suitable 
habitat that still exists there makes any contribution to owls on the 
Olympic Peninsula minimal at best.
    Currently, the Service is attempting to address these conservation 
opportunity limitations through a creative new approach which targets 
the development of comprehensive multi-species Habitat Conservation 
Plans with several of the large landowners in this province. The 
Service has premised this cooperative approach, as opposed to 
designating this area as a Special Emphasis Area, on the positive 
commitments it has received from major landowners in this region to 
negotiate comprehensive HCPs. In addition, one of the landowners has 
entered into a ``take avoidance'' agreement while working on their HCP. 
The take avoidance agreement insures that no owls will be lost as the 
result of timber harvest during the period in which the HCP is being 
developed.
3. Western Washington Cascades Province
    The Western Washington Cascades province occupies the land west of 
the Cascades crest, from the Columbia River north to the Canadian 
Border and west to the Western Washington Lowland province (Figure 4 to 
Sec. 17.41(c)). This province contains about 6.1 million acres of land, 
of which approximately 61 percent is in Federal ownership. Most of the 
non-federal lands occur along the western edge of the province and 
along the major mountain passes in checkerboard ownership with Federal 
lands.
    a. NRF Habitat. NRF habitat in the Western Washington Cascades 
Province consists, as a general matter, of coniferous or mixed 
coniferous/hardwood forest with multiple canopy layers; multiple large 
overstory conifers greater than 20 inches dbh; and total canopy closure 
among dominant, co-dominant and understory trees of greater than 60 
percent.
    b. Dispersal Habitat. Dispersal habitat in the Western Washington 
Cascades Province consists, as a general matter, of coniferous or mixed 
coniferous/hardwood forest with smaller dominant trees or lower canopy 
closure than NRF habitat; multiple canopy layers of multiple large 
overstory conifers greater than 10 inches dbh; and a total canopy 
closure among dominant, co-dominant and understory trees of greater 
than 60 percent.
    A Habitat Conservation Plan (HCP) was recently approved by the Fish 
and Wildlife Service to cover Murray Pacific Corporation lands in Lewis 
County in this Province. The permit for this 100-year Habitat 
Conservation Plan for the northern spotted owl was signed on September 
24, 1993, for the Murray Pacific Corporation, a Tacoma, 
[[Page 9494]] Washington, based timber company. The plan provides for 
the development and maintenance of dispersal habitat for the spotted 
owl that is well distributed over the 54,610 acres of the company's 
land, while allowing limited taking of spotted owls that is incidental 
to the company's timber harvest activities.
    The Murray Pacific planning area is situated between the Mineral 
Block (an isolated block of Forest Service land) and the main portion 
of the Gifford Pinchot National Forest, that is located immediately 
south of Mt. Rainier National Park. The Mineral Block has been 
designated as a late-successional Federal reserve under the Forest 
Plan. The management of Murray Pacific property will promote the 
opportunity for the dispersal of spotted owls to and from this isolated 
reserve, providing a link with the Cascade Mountains population. The 
Mineral Block also hosts the most westerly extension of spotted owls in 
the Cascade Mountains.
    General threats to the spotted owl in this province include low 
population levels, limited habitat in the northern portion of the 
province, declining habitat, and dispersal problems in areas of limited 
Federal ownership.
4. Eastern Washington Cascades Province
    This province lies east of the crest of the Cascades Mountains from 
the Columbia River north to the Canadian Border (Figure 4 to 
Sec. 17.41(c)). The province extends east to where suitable spotted owl 
habitat naturally diminishes and drier pine forests become prevalent. 
Approximately 62 percent of the province's 5.7 million acres is in 
Federal ownership.
    a. NRF Habitat. NRF habitat in the Eastern Washington Cascades 
Province consists, as a general matter, of coniferous forest with 
stands that contain greater than 20 percent fir (Douglas fir, grand 
fir) and/or hemlock trees; multiple canopy layers of multiple large 
overstory conifers greater than 12 inches dbh; and a canopy closure 
among dominant, co-dominant and understory trees of greater than 50 
percent.
    b. Dispersal Habitat. Dispersal habitat in the Eastern Washington 
Cascades Province consists, as a general matter, of coniferous forest 
with stands that contain greater than 20 percent fir trees with smaller 
dominant trees or lower canopy closure than NRF habitat multiple canopy 
layers of multiple large overstory conifers of greater than 11 inches 
dbh; and total canopy closure among dominant, co-dominant and 
understory trees of greater than 50 percent.
    Threats to the spotted owl in this province include natural 
fragmentation of spotted owl habitat by geological features; loss of 
spotted owl habitat from wildfires; loss of habitat from timber harvest 
activities; and low spotted owl populations in some areas of the 
province.

California

1. California Coastal Province
    Extending from the Oregon border south to San Francisco Bay, this 
province lies west of the Six Rivers and Mendocino National Forests 
(Figure 4 to Sec. 17.41(c)). It consists of approximately 5.6 million 
acres, of which about 87 percent is in non-Federal ownership. Timber 
management is the primary land use on about 2 million acres, and is 
concentrated in the heavily-forested redwood zone located within 20 
miles of the Pacific Ocean coastline. In the more inland and southerly 
portions of the province, owl habitat is largely confined to the lower 
portions of drainages and is naturally fragmented by grasslands, 
hardwoods, and chaparral, as well as by agricultural and urban areas.
    a. NRF Habitat. NRF habitat in the California Coastal Province 
consists, as a general matter, of coniferous or mixed coniferous/
hardwood forests with multiple canopy layers; multiple overstory 
conifers greater than 16 inches dbh; and total canopy closure among 
dominant, co-dominant, and understory trees of greater than 60 percent. 
Some nest sites may occur in stands of smaller trees or with a lower 
canopy closure; however, such sites are not typical.
    b. Dispersal Habitat. Dispersal habitat in the California Coastal 
Province consists, as a general matter, of coniferous or mixed 
coniferous/hardwood forests, with smaller dominant trees or lower 
canopy closure than in NRF habitat; multiple canopy layers, with 
multiple large overstory conifers greater than 10 inches dbh; a total 
canopy closure among dominant, co-dominant; and understory trees of 
greater than 40 percent.
    This province is unique in that it supports several hundred pairs 
of spotted owls (over \1/3\ of the State's population) within managed 
second-growth timber stands. Factors that appear to contribute to the 
suitability of these second-growth stands include the rapid growth of 
trees in the coastal environment, the prevalence of hardwood 
understories, and the widespread occurrence of a favored prey species, 
the dusky-footed woodrat. The primary threat to the spotted owl in this 
region is habitat alteration, but, due to the spotted owl's widespread 
distribution, the predominance of selection harvest methods, the rapid 
regrowth of habitat, and effective and comprehensive State wildlife 
conservation and forest practice regulations, threats are considered 
low to moderate in this portion of the spotted owl's range.
    Because Federal lands in this province are limited, they play a 
small role in spotted owl conservation in this province. Significant 
non-Federal contributions to conservation are in place or under 
development in this area. In addition to efforts by the state, 
described in more detail later, several large timber companies in the 
coastal province have made substantial investments in information-
gathering and planning for spotted owl conservation. The Simpson Timber 
Company has completed a Habitat Conservation Plan and received a 
section 10(a) permit for the incidental take of a limited number of 
spotted owls on its 380,000-acre property. Pursuant to this plan, 
Simpson Timber has set aside 40,000 acres of suitable owl habitat for 
at least ten years, is conducting research on habitat characteristics, 
and has banded over 600 spotted owls.
2. California Klamath Province
    This province lies to the east of the California Coastal province, 
and is contiguous with the Oregon Klamath province (Figure 4 to 
Sec. 17.41(c)). The California Klamath province consists of 
approximately 6.2 million acres, of which about 76 percent is in 
Federal ownership. The U.S. Forest Service is the primary land manager. 
About 25 percent of the Forest Service lands in the province are 
believed to be currently suitable for nesting, roosting, and foraging 
by the spotted owl.
    a. NRF Habitat. NRF habitat in the California Klamath Province 
consists, as a general matter, of coniferous or mixed coniferous/
hardwood forests with multiple canopy layers; multiple overstory 
conifers greater than 16 inches dbh; and total canopy closure among 
dominant, co-dominant, and understory trees of greater than 60 percent. 
Some nest sites may occur in stands of smaller trees or with a lower 
canopy closure; however, such sites are not typical.
    b. Dispersal Habitat. Dispersal habitat in the California Klamath 
Province consists, as a general matter, of coniferous or mixed 
coniferous/hardwood forests, with smaller dominant trees or lower 
canopy closure than in NRF habitat; multiple canopy layers, with 
multiple large overstory conifers greater than 10 inches dbh; a 
[[Page 9495]] total canopy closure among dominant, co-dominant; and 
understory trees of greater than 40 percent.
    In many areas of the province, spotted owl habitat is naturally 
fragmented by chaparral, stands of deciduous hardwoods, and low-
elevation vegetation types. In portions of the area, suppression of 
fire over the last century may have encouraged development of mixed-
conifer habitat suitable for spotted owls. However, during the same 
period, timber harvest has removed substantial amounts of suitable 
habitat. Owl populations throughout the province were believed to be 
declining due to habitat loss at the time of listing, and data suggest 
that populations may well be continuing to decline in the province's 
only demographic study area (Franklin et al. 1992). In the southern 
portion of the province, especially on the Mendocino National Forest, 
spotted owls and nesting, roosting, and foraging habitat are more 
scattered than in northern areas due to both natural conditions and 
recent harvest. However, despite extensive habitat fragmentation in 
some areas during the last two decades, spotted owl populations appear 
to remain distributed throughout most parts of the province.
    Until the listing of the spotted owl, continued habitat alteration 
due to clear-cutting was a primary threat to the species in this 
province. The most important threat to habitat at the present time is 
wildfire. In the past six years, large fires have destroyed or degraded 
substantial quantities of owl habitat on the Klamath, Shasta-Trinity, 
and Mendocino National Forests.
    The Hoopa Valley Indian Reservation occupies about 88,000 acres 
along the western margin of this province. The Hoopa Tribe has 
conducted forestry operations under section 7 consultation conducted 
between the Bureau of Indian Affairs and the Service, and is preparing 
a comprehensive integrated resource management plan for forestry and 
wildlife on their lands. The Tribe is also developing a Geographic 
Information System (GIS) data base to integrate spotted owl 
conservation into its timber management program. The maintenance of 
adequate dispersal condition in this area would improve the intra-
provincial connectivity and dispersal between Federal reserves.
3. California Cascades Province
    This province lies east of the California Klamath province. It 
consists of approximately 2.5 million acres, of which about 46 percent 
is in Federal ownership (Figure 3 to Sec. 17.41(c)). Checkerboard 
Federal and non-Federal ownership patterns predominate. Due to the 
relatively dry climate and the history of recurrent wildfires in this 
province, spotted owl habitat is naturally fragmented by chaparral and 
stands of deciduous hardwoods. As is the case in the California Klamath 
Province, the suppression of wildfire over the last century may have 
encouraged development of mixed-conifer habitat suitable for spotted 
owls. However, timber harvest has removed substantial amounts of 
suitable habitat. Existing spotted owl sites are widely scattered, and 
the potential for dispersal across the province appears to be limited. 
This province provides the demographic and genetic linkage between the 
northern spotted owl and the California spotted owl of the Sierra 
Nevada range.
    a. NRF Habitat. NRF habitat in the California Cascades Province 
consists, as a general matter, of coniferous or mixed coniferous/
hardwood forests with multiple canopy layers; multiple overstory 
conifers greater than 16 inches dbh; and total canopy closure among 
dominant, co-dominant, and understory trees of greater than 60 percent. 
Some nest sites may occur in stands of smaller trees or with a lower 
canopy closure; however, such sites are not typical.
    b. Dispersal Habitat. Dispersal habitat in the California Cascades 
Province consists, as a general matter, of coniferous or mixed 
coniferous/hardwood forests, with smaller dominant trees or lower 
canopy closure than in NRF habitat; multiple canopy layers, with 
multiple large overstory conifers greater than 10 inches dbh; a total 
canopy closure among dominant, co-dominant; and understory trees of 
greater than 40 percent.
    Currently, threats in this province include low population numbers, 
difficulty in providing for interacting population clusters, and 
fragmented dispersal habitat. Catastrophic wildfire is also an 
important threat to habitat. In 1992, a 70,000-acre fire in Shasta 
County substantially reduced the likelihood of contact between the 
northern spotted owl and the California spotted owl for the next 
several decades.

Northern Spotted Owl Populations on Non-Federal Lands

    Due primarily to historic timber harvest patterns, approximately 75 
percent of the known rangewide population of spotted owls is centered 
on Federal lands. Owl site centers on non-Federal lands are usually 
found in remnant stands of older forest, or in younger forests that 
have had time to regenerate following harvest. In addition, adjacent 
forested non-Federal lands can provide foraging and dispersal habitat 
for owls whose site centers are on Federal lands.
    As of July 1, 1994, there were 5,431 known locations, or site 
centers, of northern spotted owl pairs or resident single owls in 
Washington, Oregon, and California (located between 1989 and 1993)--851 
sites (16 percent) in Washington, 2,893 (53 percent) in Oregon, and 
1,687 (31 percent) in California. In Washington and Oregon, owl site 
centers on non-Federal lands are typically widely scattered. Currently, 
1,319 or 24 percent of known owl site centers are located on non-
Federal lands--140 in Washington, 342 in Oregon, and 837 in California. 
Of those in California, 631 or 75 percent of the site centers located 
on non-Federal lands are located in the California Coast Province, 
where owls are relatively common in second-growth timber stands. Site 
centers in the interior provinces of California are typically 
scattered. In addition to the site centers located on non-Federal lands 
in Washington, Oregon, and California, preliminary analyses indicate 
that there are 151 site centers in Washington, 810 centers in Oregon, 
and 204 centers in California, located on Federal lands that are 
dependent upon some percentage of suitable owl habitat on adjacent non-
Federal lands to support the owls.
    Non-Federal lands in certain portions of the owl's range are still 
necessary to support and supplement the Federal lands-based owl 
conservation strategy. While the type of support needed varies 
depending on local conditions, the three general types of conservation 
support needed within specially designated areas are:
    (1) Habitat on non-Federal lands near Federal reserves where 
existing owl populations are low to provide demographic support for owl 
populations. Areas that are needed to provide demographic support for 
Federal reserves include, in Washington: the western portion of the 
Olympic Peninsula Province and portions of the Eastern and Western 
Cascade provinces; and in California: the Cascades Province and the 
southern portion of the Klamath Province;
    (2) Dispersal habitat between Federal reserves, where Federal lands 
may not be distributed to prevent isolation of populations, or between 
non-Federal ownerships where the distance between reserves is not 
great. Where distances are large, scattered breeding sites may be 
important to improve connection between populations. Areas that can 
provide valuable dispersal habitat on non-Federal lands include, in 
Washington--the western portion of the Olympic Peninsula Province and 
[[Page 9496]] portions of the Eastern and Western Cascade Provinces; 
and in California--the Coast and Cascades Provinces and small portions 
of the Klamath Province; and
    (3) Suitable habitat for breeding populations in areas where 
Federal ownership is limited. In these areas, functioning spotted owl 
populations are desired to maintain a widely distributed population of 
owls. Areas where non-Federal owl populations are believed to play an 
important role in this regard include, in Washington--the western 
portion of the Olympic Peninsula Province; and, in California--the 
Coast and Cascades Provinces.

Recent Conservation Programs and Strategies for the Northern 
Spotted Owl

Non-Federal Management Efforts

    To varying degrees, the laws, regulations, and policies of 
California, Oregon, and Washington provide protection and contribute to 
the conservation of the spotted owl. Each of the three states is a 
cooperator with the Secretary of the Interior under section 6 of the 
Act and each State has cooperative agreements with the Service to carry 
out conservation activities for listed and candidate species of plants 
and animals. Under these agreements, the States work cooperatively with 
the Service on endangered and threatened species conservation projects 
and are eligible for cost-share grant money from the Service to carry 
out State-directed species research and conservation activities. Since 
the spotted owl was Federally listed, Washington, Oregon, and 
California have recognized the Federal status of the spotted owl and 
have adopted forest management rules offering various levels of 
protection for the species. In addition, numerous changes have been 
made to State forest practices rules in the last few years in response 
to the needs of declining species like the spotted owl, the marbled 
murrelet, and various runs of salmon. Relevant authorities and programs 
existing in the States of Washington and California are also briefly 
described below.

California

    California has adopted the most protective forest management 
regulations for the spotted owl in the Pacific Northwest. The State has 
also been in the forefront of efforts to approach forest management 
from an ecosystem perspective.
    Pursuant to the California Forest Practice Act, the California 
Board of Forestry establishes regulations under Title 14 of the 
California Code of Regulations governing timber harvest on private and 
State lands (14 CFR Sec. 895, 898, 919, 939). Registered Professional 
Foresters licensed by the Board must submit Timber Harvest Plans (THP) 
to the California Department of Forestry and Fire Protection for review 
and approval. The California Department of Fish and Game is also 
responsible for reviewing THPs. THPs may be denied on a number of 
grounds, including potential take of Federally or State listed 
threatened or endangered species.
    Following the Federal listing of the northern spotted owl, the 
Board of Forestry implemented no-take rules using standards based on 
biological advice from the Service. These standards include maintenance 
of over 1,300 acres of suitable owl habitat within 1.3 miles of every 
spotted owl site center and 500 acres within 0.7 miles. The rules 
instituted a special review process for all proposed private timber 
harvest to ensure that incidental take would not occur. The process 
encouraged surveys for spotted owls in THP areas according to a 
Service-endorsed protocol (USFWS 1992). The Board's no-take rules have 
maintained options for future management by providing protection for 
habitat around every known spotted owl site center, and have resulted 
in greatly increased knowledge of the species' numbers and 
distribution. Other Forest Practice Rules, including riparian buffers 
and limitations on clear-cut size, may provide additional contributions 
to the maintenance of spotted owl habitat in northern California. These 
include the 40-acre limitation on clear-cut size, limits on adjacency 
of clear-cuts, and protection of riparian buffers.
    The Board of Forestry (Board) also recently adopted rules 
establishing regulatory incentives for large-acreage landowners who 
develop sustained yield plans (SYPs). The SYP rules may provide 
considerable benefit to spotted owls, because ownerships operating 
under these rules must maintain specified portions of each watershed in 
timber stands of large size classes for several decades, thus providing 
spotted owl habitat components throughout the landscape.
    The Department of Fish and Game and Department of Forestry and Fire 
Protection jointly maintain an interagency data base of Federal and 
non-Federal spotted owl locations. The Forest Practice Rules require 
that all information on spotted owl sites that is generated during 
timber harvest planning be submitted to this data base, and relevant 
data are made available to all parties planning timber harvest or other 
activities. Thus, the data base is a functional tool in protection of 
the species.
    Following the listing of the northern spotted owl, the California 
Board of Forestry directed the Department of Forestry and Fire 
Protection to prepare a Habitat Conservation Plan (HCP) and section 
10(a)(1)(B) incidental take permit application to address all private 
timber harvest regulated by the Board. Following a three-year planning 
effort by that Department and a number of cooperators from agencies, 
industry, and environmental groups, the Board tabled consideration of 
the draft Habitat Conservation Plan because significant issues remained 
unresolved, most notably the funding mechanism. The draft plan 
nevertheless represented a significant cooperative commitment to 
resolve conservation issues by the State and other concerned parties 
and many of the biological elements of the draft HCP may have future 
application.

Washington

    The spotted owl is listed under Washington law as an endangered 
species. The Washington Department of Natural Resources has the 
responsibility for regulating timber harvest activities on non-Federal 
lands under the authority of the Washington State Forest Practices Act 
(76.09 RCW) and its implementing regulations (WAC 222.08-222.50). These 
regulations are promulgated by the Forest Practices Board.
    Recent regulations (WAC 222.16.080(1)(h) have required forest 
practices on the 500 acres of suitable habitat surrounding the site 
center of known spotted owls to be reviewed under the State 
Environmental Policy Act, WAC 222.16.080(1)(h). In practice, this rule 
has led landowners to avoid applying for permits for forest practices 
within the 500-acre area. This regulation expired on February 9, 1994, 
and has been extended pending approval of a final rule. The Forest 
Practices Board has established a Scientific Advisory Group to 
recommend the scientific basis for a new rule to replace the current 
rule. No other forest practices regulation expressly addresses the 
protection of spotted owl habitat from timber harvest activities. 
However, the Department notifies individual landowners when a proposed 
forest practice occurs within the median annual home range of a known 
spotted owl pair or resident single, and advises the landowner to 
contact the Service. In addition, several other regulations contribute 
habitat benefitting spotted owls, including regulations requiring 
riparian zone protection, wetlands protection, and retention of 
wildlife reserve trees. [[Page 9497]] 
    Riparian management zone regulations require the minimum retention 
of 25-foot wide buffers along the sides of fish-bearing streams with a 
varying ratio of trees to be retained per 1,000 feet of stream within 
the buffers, based on stream location, width and bottom composition.
    Wetland management regulations require the establishment of a zone 
surrounding non-forested wetlands which varies in width from a minimum 
of 25 to 50 feet depending on the size and category of the wetland. The 
regulations also require the retention of a minimum number of trees 
(75) per acre and that a percentage of those trees meet minimum size 
classifications (six inches dbh) depending on the type of wetland. Of 
this total, 25 trees are to be more than 12 inches dbh, and five of 
them are to be more than 20 inches dbh, where they exist.
    Clear-cut size and green-up regulations limit the maximum size of 
clear-cut harvest units to 120 acres, unless a State environmental 
Policy Act review is undertaken that could boost the potential size of 
the harvest to 240 acres. The perimeter of harvest units must meet 
minimum stand qualifications to maintain age class diversity adjacent 
to the harvest unit before harvest may proceed.
    Wildlife reserve tree regulations require the retention of three 
snags (minimum of 12 inches dbh), two green recruitment trees (minimum 
10 inches dbh), and two down logs (minimum 12 inches diameter at the 
small end).
    Besides regulating forest practices in Washington, the Department 
of Natural Resources (WDNR) administers approximately five million 
acres of State lands, 2.1 million acres of which are forested and 
managed in trust for various beneficiaries. The WDNR has avoided the 
take of spotted owls on its lands and has begun preparation of an HCP 
under section 10(a)(1)(B) of the Act for all State lands in the range 
of the owl. The WDNR is also developing a conservation strategy for the 
spotted owl that would be applied to the Congressionally mandated 
264,000-acre State Experimental Forest on the Olympic Peninsula.
    Apart from these efforts by State government, various private 
efforts are underway to conserve spotted owls, including the 
development of, or commitment to, HCPs and ``no take'' agreements by 
several major landowners in the State. In addition, the Yakima Indian 
Nation is developing a conservation strategy for the spotted owl while 
continuing to follow its previous interim spotted owl strategy and 
selective timber harvest regime.

Past Federal Management Strategies

    Prior to its listing as a threatened species, many different 
approaches to northern spotted owl management and research were 
undertaken by Federal and State resource agencies, for example, 
designation of ``spotted owl habitat areas'' or ``SOHAs.'' Each of 
these approaches fulfilled different conservation objectives for the 
northern spotted owl. The conservation objective of the earliest 
attempts at spotted owl management, which began in the mid-1970s, was 
to temporarily protect sites that supported individual pairs of spotted 
owls. In the 1980s, management strategies were based on conservation 
objectives that tried to avoid land use conflicts while managing 
spotted owls and late-successional forest habitat; these management 
strategies were generally inadequate. A complete discussion of the 
history and chronology of past spotted owl management attempts can be 
found in Thomas et al. (1990).
    Recent (post-listing) Federal northern spotted owl management 
strategies have been based on the establishment of a system of large, 
dispersed Federal land reserves, with conservation objectives somewhat 
different from earlier strategies. These management strategies were 
designed to meet the following conservation objectives--(1) provide 
habitat to sustain approximately 20 or more breeding pairs of spotted 
owls on each Federal reserve; (2) decrease the chance of catastrophic 
loss of populations in reserves; (3) lower the risk of losing spotted 
owls from a reserve due to a single catastrophic event; and (4) ensure 
that adequate habitat existed between the reserves for dispersal of 
owls throughout its range. To fulfill these objectives, these 
management strategies proposed establishing a reserve network of 
Federal lands based on blocks of late-successional habitat of 
sufficient size and proximity to each other to maintain viable 
populations of the spotted owl throughout its range. Assessments of 
these strategies have generally recognized that, in certain areas of 
the northern spotted owl's range, Federal lands are not, by themselves, 
adequate to support the full recovery of the owl although they could 
provide a major contribution toward the owl's conservation in other 
parts of its range (USDI 1992).
    To meet their conservation objectives, these management strategies 
generally established Federal reserves designed to sustain at least 20 
pairs of spotted owls where conditions allowed. These strategies 
assumed that any smaller late-successional Federal reserves should be 
placed closer together to increase the probability of successful 
spotted owl dispersal between the reserves. In addition, plans provided 
dispersal habitat sufficient to support movements between blocks. For 
this reserve design, successful dispersal would accomplish two 
objectives--it would help prevent genetic isolation in individual owl 
populations and it would allow spotted owls to naturally recolonize 
important areas that have few or no spotted owls present. By allowing 
spotted owls to disperse between a series of discrete reserves, this 
reserve design could maintain a spotted owl population over a large 
area even if a single reserve was lost to catastrophe.
    By way of example, the Interagency Scientific Committee (ISC) 
developed a conservation strategy based on managing large, well-
distributed Federal blocks of suitable spotted owl habitat that were 
sufficiently connected to maintain a stable and well-distributed 
population of spotted owls throughout their range (Thomas et al. 1990). 
The ISC did not integrate non-Federal lands into its conservation 
strategy. To provide dispersal habitat between these reserves, the ISC 
recommended a ``50-11-40 rule'' where 50 percent of Federal forest 
habitat (based on quarter-townships) would be managed to retain 
dominant or co-dominant trees with an average of 11 inches dbh and 
provide a minimum 40 percent canopy closure. Canopy closure refers to 
the degree to which the crowns (tops) of trees obscure the sky when 
viewed from below. The ``50-11-40'' rule was set forth as one method of 
providing for dispersal habitat on Federal forest lands; other 
prescriptions have been and can be developed which provide comparable 
dispersal conditions, e.g., Murray Pacific HCP dispersal prescription.

The Federal Forest Plan

    The range of the spotted owl includes approximately 24,518,000 
acres of Federal lands of which 20,577,000 acres are forested. The 
Forest Plan represents a management strategy for Federal LSOG-forests 
in the coastal western states of California, Oregon, and Washington 
that provides habitat to support the persistence of well distributed 
populations of species that are associated with late-successional 
forests, including the northern spotted owl.
    The Forest Plan established a network of reserves totalling over 
11.5 million acres of Federal land in northern California, Oregon, and 
Washington. That total includes 7.43 million acres of late-successional 
reserves, 2.63 million [[Page 9498]] acres of riparian reserves, and 
1.48 million acres of administratively withdrawn areas. This acreage is 
in addition to 7.32 million acres of Congressionally reserved lands.
    The late-successional reserves currently provide 3.2 million acres 
of suitable habitat for the spotted owl. The interim riparian reserve 
provide an additional 0.74 million acres of suitable habitat and the 
administratively withdrawn areas provide an additional 0.31 million 
acres of this habitat.
    Late-successional reserves are expected to provide the primary 
contribution to the recovery of the spotted owl by maintaining large 
clusters of spotted owls and spotted owl habitat throughout a 
significant portion of the range of the species. The reserves are 
expected to increase in value for spotted owl recovery as young 
forested stands grow into suitable habitat and increase their capacity 
to support additional numbers of stable spotted owl pairs.
    Programmed timber harvest operations are not allowed in late-
successional reserves under the Forest Plan. However, carefully 
controlled thinning activities are allowed in any stand of one of these 
reserves less than 80 years of age. Salvage operations also would be 
allowed on these reserves in areas where catastrophic loss exceeded ten 
acres. In both cases, harvest proposals must be reviewed by an 
interagency oversight group to ensure sound ecosystem management.
    No programmed timber harvest is allowed in riparian reserves under 
the Forest Plan and Federal agencies are required to minimize the 
effects of roads, cattle grazing, and mining activities in these areas. 
These riparian reserves are eventually expected to provide a 
considerable amount of late-successional forest, because they currently 
represent approximately 31 percent of the lands that would otherwise be 
designated as Matrix. Based on current information (USDA et al. 1993), 
approximately .74 million acres (28 percent) of the 2.63 million acres 
in riparian reserves currently provide suitable nesting, roosting, and 
foraging habitat for spotted owls and 1.42 million (54 percent) of the 
riparian reserves provide suitable dispersal habitat for spotted owls.
    The Forest Plan places 1.5 million acres of Federal land in 10 
special ``Adaptive Management Areas (AMAs).'' Management activities in 
these AMAs would emphasize innovative forestry techniques with the goal 
of speeding attainment of late-successional characteristics and on 
restoring watersheds. These activities are expected to benefit northern 
spotted owl management in the long-term, but would not be expected to 
contribute substantially to owl conservation needs in the short-term. 
Suitable habitat for the northern spotted owl represents approximately 
0.37 million acres of the lands that have been designated as AMAs.
    Programmed timber harvests also are allowed on approximately four 
million acres of Federal forests designated as the Matrix under the 
Forest Plan. The Plan differs from previously proposed strategies in 
that the 50-11-40 rule does not apply to Matrix areas between late-
successional and other Federal forest reserves. The Plan concluded that 
the need for spotted owl dispersal habitat could be met with the 
combination of reserves as proposed, plus additional Matrix 
prescriptions.
    In Washington and Oregon, the Plan requires leaving 15 percent of 
the trees (``green tree retention'') in all harvest units on AMAs and 
matrix areas outside of the Coast Ranges and Bureau of Land Management 
lands in southern Oregon. The Plan encourages these trees to be left in 
small clumps with the expectation that they, along with the riparian 
reserves, would contribute to the creation of dispersal habitat. The 
Forest Plan adopted this prescription to improve the future condition 
of these forests. These prescriptions could ultimately be adjusted as a 
result of watershed analysis and other planning activities related to 
the implementation of the Forest Plan.
    In California, the Forest Plan incorporates the Matrix 
prescriptions contained in the draft National Forest land management 
plans. These prescriptions are designed to maintain dispersal habitat 
in a variety of timber types.
    The FEMAT report (p. IV-43 and p. IV-153) stated that 
implementation of Option 9 (which served as the basis for the Forest 
Plan) would result in a projected future likelihood of 83 percent that 
spotted owl ``habitat is of sufficient quality, distribution, and 
abundance to allow the species population to stabilize in well 
distributed areas of Federal lands,'' and a projected future likelihood 
of only 18 percent that ``habitat is of sufficient quality, 
distribution, and abundance to allow the species population to 
stabilize, but with some significant gaps in the historic species 
distribution on Federal land. These gaps cause some limitation in 
interactions among local populations.'' Moreover, implementation of 
Option 9 was rated by FEMAT as resulting in a zero likelihood that 
``habitat only allows continued species existence in refugia, with 
strong limitations on interactions among local populations'', and a 
similar zero likelihood that implementation of the option would result 
in ``species extirpation from Federal lands''.
    These probability judgments reflect the contributions to 
conservation expected to be provided by the implementation of the 
Forest Plan on Federal lands. They indicate a high likelihood that, 
over the long-term, the Forest Plan will provide conditions on Federal 
lands that would contribute significantly to the conservation and 
recovery needs of the spotted owl. This assessment is consistent with 
the Federal policy to provide the predominant protection for spotted 
owls on Federal lands and it is within this context that the Service 
proposes to modify the incidental take prohibitions for certain non-
Federal lands.

General Approach Used to Develop This Special Rule

    The goal of this proposed rule was to identify non-Federal lands 
that are no longer either necessary or advisable to the conservation of 
the spotted owl given the contributions of the Forest Plan the likely 
possibility of numerous large scale, multi-species Habitat Conservation 
Plans, and other measures and practices in effect. In reviewing the 
alternatives identified in the NOI, the Service evaluated the 
contributions to the conservation of the owl provided by the Forest 
Plan, past Federal owl conservation strategies, existing State forest 
practices regulations, tribal conservation and private timber 
management plans, as well as public comments provided in response to 
the NOI.
    The Service considered various factors in identifying areas of non-
Federal land where relief could be provided and other areas where 
incidental take restrictions should be maintained at this time. The 
Service first considered the conservation benefits that the Federal 
Forest Plan provided the owl for a given area. These benefits were then 
compared and contrasted with the conservation goals for the area 
originally established under the Final Draft Recovery Plan for the 
northern spotted owl. The Service focused particularly on Forest Plan 
impacts affecting the conservation of owl habitat and owl numbers, as 
well as the size and location of Federal reserves. It then identified 
certain areas of non-Federal land which were still important for owl 
conservation and what the conservation goals should be for such areas. 
The Service gave particular care and attention to the non-Federal lands 
[[Page 9499]] which were noted as important in the Report of the Forest 
Ecosystem Management Assessment Team (FEMAT), IV 150-151. In 
identifying boundaries for such areas, the Service considered, among 
other things, current owl population status on non-Federal lands, the 
need for owl population support within adjacent Federal reserves, and 
the need for connectivity between such reserves. The Service also 
attempted to exclude wherever possible large areas of non-Federal land 
with little or no owl habitat.
    The Forest Plan is a habitat based conservation strategy that would 
anchor and secure millions of acres of Federal land across the range of 
the spotted owl, an unprecedented commitment of Federal resources 
towards the conservation of the owl. Given that commitment to a habitat 
based strategy and the scope of the Forest Plan, the Service no longer 
believes that it is essential to the conservation of the spotted owl to 
continue to prohibit the incidental take of the owl on all non-Federal 
land located within the range of the owl. The Service also believes 
that the combination of Federal and non-Federal habitat based 
strategies for the spotted owl contained in this proposed rule, the 
Forest Plan and multi-species Habitat Conservation Plans will, over 
time, further the conservation of the species and its recovery.
    When developing objectives for regulatory relief for non-Federal 
lands which were consistent with the Forest Plan, the Service evaluated 
past biological information and has concluded that it is still 
important to retain the closest 70 acres of suitable owl habitat 
surrounding site center regardless of whether the center is in an area 
of proposed relief or not. The Service also believes that the 
substantial loss of suitable habitat within the estimated median annual 
home range of an owl is likely to result in inadequate nesting, 
juvenile development, and adult dispersal and survival, and will 
significantly increase the likelihood of actual harm to, and incidental 
take of, an owl.
    As the riparian reserve, matrix, adaptive management areas, and 
late-successional reserve management criteria of the Forest Plan are 
implemented, along with the requirements of underlying State law and 
other provisions proposed in this rule for owl protection, dispersal 
and connectivity conditions for the species' survival should improve 
over time throughout its range. For this reason, the Service has chosen 
not to include in this proposed rule mandatory dispersal prescriptions 
such as the 50-11-40 rule which was designed originally to generate 
dispersal habitat conditions for Federal lands only.
    For those areas where satisfactory dispersal conditions likely are 
not present, the Service believes that such conditions can be achieved 
over time through other means such as full protection against 
incidental take, large scale Habitat Conservation Planning (HCPs), 
Local Option Conservation Plans, or voluntary conservation 
contributions by non-Federal landowners. Recognizing the limitations on 
Federal authority to mandate the development of dispersal habitat in 
these areas, this proposed rule would encourage non-Federal landowners 
to manage their lands in ways that are more consistent with the 
conservation of the spotted owl. In some areas it would remove the 
disincentives associated with maintaining suitable spotted owl habitat, 
and, would bring more certainty to future planning for timber 
management as well as for owl conservation activities.
    Upon consideration of all of the above factors, the following 
summarizes the provisions of this 4(d) rule:

Regulatory Provisions Common to Both Washington and California

    Some protective measures for the owl would be identical for both 
the State of Washington and California. The prohibition on killing or 
injuring of spotted owls would not be relieved in any part of the owl's 
range by this proposed rule. Similarly, timber harvesting of the 
closest 70 acres of suitable owl habitat surrounding a site center 
would remain prohibited throughout Washington and California, unless 
the site has been determined to be abandoned.
    In addition, the Service would retain for an additional two years, 
the prohibition against incidental take as applied to owls which are 
dependent upon non-Federal lands and whose site centers are located 
within Federal Forest Plan Reserves or Congressionally reserved or 
Administratively withdrawn areas which are outside of Special Emphasis 
Areas or are on the western portion of the Olympic Peninsula in 
Washington, or are located on Federal Forest Plan reserves or 
Congressionally reserved or Administratively withdrawn areas within the 
Klamath Province in California. At the end of this period, the Service 
will review any new information or data involving the status of such 
owls and their habitats in the affected areas, including the results of 
any completed watershed analysis and other planning efforts under the 
Federal Forest Plan. In particular, the Service would assess on a local 
area-by-area basis whether the continuation of the incidental take 
prohibition on affected, adjacent non-Federal lands was still necessary 
and advisable for achieving the conservation goals of the Forest Plan 
for that area. The Service would then lift the incidental take 
restrictions where warranted and require the protection of only the 
closest 70 acres of suitable habitat surrounding an affected site 
center.

Relief From Current Incidental Take Provisions in Washington
    A total of approximately 10.6 million acres of non-Federal land in 
the range of the spotted owl in Washington (the Washington Lowlands 
Province, portions of the Western and Eastern Cascades Provinces and 
portions of the Olympic Peninsula Province) would be excluded from the 
boundaries of proposed Special Emphasis Areas (SEAs) and be exempted 
from the future application of current incidental take restrictions for 
the northern spotted owl. Of this land base outside SEAs, 8.3 million 
acres have some sort of forest cover of which 5.24 million acres are in 
conifer cover. Actually, only a small percentage of these lands are 
currently affected by present incidental take prohibitions for owls. 
Absent this proposed rule, however, much of this remaining land could 
potentially be affected should a spotted owl relocate to any adjacent 
suitable owl habitat at some point in the future. Approximately 1.7 
million acres of non-Federal lands would be left inside of SEAs. Of 
this acreage figure, 1.3 million acres of non-Federal land is in 
conifer forest and would remain subject to the incidental take 
prohibitions for any owl found present in this area. In fact, only a 
portion of this acreage inside SEAs is currently affected by the 
presence of owls. Of the approximately 510,000 acres of non-Federal 
forestland which are today under incidental take restrictions for known 
owl sites, no less than 325,000 acres or almost 60 percent would be 
relieved from such restrictions as a result of this rule.
    Of the 140 spotted owl site centers on non-Federal lands in 
Washington, 84 are in the six proposed SEAs and would retain current 
incidental take protection. Fifty-six spotted owl site centers are 
outside SEAs on non-Federal lands and would be released from current 
incidental take prohibitions. There are an additional 121 site centers 
on Federal lands within the proposed SEA's, of which 68 may be 
dependent on non-Federal lands. There are also 83 site centers on 
Federal lands outside the SEAs that may be dependent on non- 
[[Page 9500]] Federal lands. Of the 83 site centers outside of SEAs, 71 
site centers are located within either a Federal Forest Plan Reserve or 
a Congressionally reserved or Administratively withdrawn area. The 
Olympic Peninsula contains 41 of these sites with the remaining 30 
sites located outside of SEAs in the rest of the State.

Activities Outside of Designated SEAs

    The Service proposes to reduce the current prohibition against the 
incidental taking of owls for those non-Federal lands which are located 
outside of SEAs proposed in Washington. In areas outside of SEAs, a 
non-Federal landowner would only be required to retain the closest 70 
acres of suitable owl habitat surrounding an owl site center. Legal and 
administrative boundaries were used wherever possible to assist in 
refining identified SEA boundaries. As noted above, the Service 
estimates that approximately 10.6 million acres of non-Federal land in 
Washington lie outside of SEAs, of which 5.24 million acres are 
forested with conifers. These would be the primary areas receiving 
relief under this rule for Washington. In these areas, the incidental 
take of owls would not be prohibited as long as timber harvest 
activities did not take place within the closest 70 acres of suitable 
owl habitat immediately surrounding an owl site center.
    As noted previously, the above reduction to 70-acres would not be 
applicable for non-Federal lands affected by any owl site center which 
is located within a Forest Plan reserve or Congressionally reserved or 
Administratively withdrawn area which is outside of an SEA. The Service 
intends to reassess the importance of these sites within the next two 
years as additional data and planning information is developed under 
the Forest Plan. The one region in Washington where this two-year 
retention of prohibitions would not be applied outside of an SEA would 
be on portions of the Olympic Peninsula. On the northern, eastern, and 
southern parts of the Peninsula, non-Federal landowners would only be 
required to preserve the closest 70 acres of suitable habitat 
surrounding a site center regardless of whether the site center is 
located within a Federal reserve or withdrawn area. The Service 
believes that the recent Reanalysis Team Report for the Olympic 
Peninsula (Holthausen, et al., 1994) addresses the issue of the 
contribution that such non-Federal areas provide toward achieving the 
goal of recovery of the owls on the Peninsula. Under these 
circumstances, the Service does not believe that it is essential that 
existing incidental take restrictions be retained for an additional two 
years for these three areas on the Peninsula.

Designation of Special Emphasis Areas

    The six areas discussed below (Figure 5 to Sec. 17.41(c)) would be 
designated as SEAs within Washington:
    (a) Columbia River Gorge/White Salmon (Figure 6 to Sec. 17.41(c)).
    The Columbia River Gorge portion of this SEA is in the southern 
portion of the Washington Cascades province, north of the Columbia 
River and west of the Cascade crest. Non-Federal lands link owls and 
owl habitat between Federal reserves in the Washington Cascades and 
Oregon Cascades along the Columbia River Gorge, thereby contributing to 
the objectives of the Forest Plan.
    The White Salmon portion of this SEA is bordered by the Yakima 
Indian Reservation to the northeast, Federal lands and the Cascade 
crest to the west and the Columbia River to the south. The White Salmon 
area was not included within the ``Proposed Action'' for the December 
29, 1993, NOI (58 FR 69132), but was included within ``Alternative C'' 
of that NOI. As a result of public comments received in response to the 
NOI, however, and recent analysis of spotted owl habitat in Washington 
(Hanson, et al. 1993), the Service has concluded that the inclusion of 
the White Salmon area as part of this SEA is warranted. These non-
Federal lands are an important link to the owl population found on the 
Yakima Indian Reservation to owl populations in Federal reserves to the 
southwest. This portion of the SEA would provide a route around high-
elevation terrain on Federal lands, through lower-elevation forests on 
non-Federal lands to provide that needed link. It also widens the zone 
of protection for the Cascades along the Columbia River.
    This combined SEA contains 37,000 acres of Federal land and 262,000 
acres of non-Federal lands. Sixteen owl site centers are on non-Federal 
lands and 3 site centers are on Federal land within this SEA, with one 
site activity center on Federal lands which relies to some degree upon 
adjacent non-Federal lands. The conservation goals for this combined 
SEA are to maintain connections between provinces and the owl 
population on the Yakima Indian Reservation, and to provide demographic 
support to the owl population in the Federal reserves.
    (b) Siouxon Creek (Figure 7 to Sec. 17.41(c)).
    This SEA is located along Swift Creek Reservoir and the Upper Lewis 
River, south of the Mt. St. Helens National Monument. As with the White 
Salmon SEA, this area was not included within the ``Proposed Action'' 
for the December 29, 1993, NOI (58 FR 69132), but was included within 
``Alternative C'' of the NOI. Because of the public comments received 
in response to the NOI and further analysis of spotted owl habitat in 
Washington (Hanson, et al. 1993), the Service has determined that the 
inclusion of the Siouxon Creek SEA in the 4(d) Rule is warranted. This 
SEA contains seven owl site centers, five on non-Federal land and two 
on Federal land, and includes approximately 44,000 acres of non-Federal 
land and 1,000 acres of Federal land. Owls on these non-Federal lands 
are needed to supply demographic support to owl populations on adjacent 
Federal reserves and dispersal habitat is needed to provide 
connectivity through the Lewis River Valley between the reserves.
    (c) Mineral Block (Figure 8 to Sec. 17.41(c)).
    This SEA surrounds a block of Federal land (Mineral Block) that has 
been designated as a Federal reserve under the Forest Plan. The Mineral 
Block is about 12 miles west of the main part of the Gifford Pinchot 
National Forest. It is too small to support a population of 20 owl 
pairs. Owl site centers on adjacent non-Federal lands would support 
this population and to provide a link to the Gifford Pinchot National 
Forest.
    This SEA contains 39,000 acres of Federal land and 259,000 acres of 
non-Federal lands. Twelve owl site centers are on non-Federal lands in 
the SEA; 17 centers are located on Federal lands of which five rely to 
some degree upon adjacent non-Federal lands. The conservation goals for 
this SEA are to provide demographic support for the owl population in 
the Federal reserve.
    (d) I-90 Corridor (Figure 9 to Sec. 17.41(c)).
    This SEA is north and south of Interstate-90 (I-90) between North 
Bend and Ellensburg, Washington. This area is in checkerboard, 
intermingled Federal and non-Federal ownership, a portion of which is 
included in the Snoqualmie Pass AMA under the Forest Plan. This general 
area has been repeatedly identified as being important to the 
conservation of the owl to maintain a connectivity link between the 
northern and southern portions of the Washington Cascades (Thomas et 
al., 1990 and Hanson et al. 1993). Existing habitat for spotted owls is 
locally sparse and highly fragmented. [[Page 9501]] 
    Non-Federal lands in this SEA would support the efforts of the 
Forest Plan by providing dispersal habitat (and some nesting, roosting 
and foraging habitat) for owl populations that are on the north and 
south sides of I-90, and between Federal reserves and the AMA. Owls 
that are on non-Federal land would provide valuable demographic support 
of owl populations in adjacent Federal reserves that are low in 
numbers. Federal reserves that are in checkerboard ownership are also 
in need of demographic support for owls because of their fragmented 
ownership pattern and degraded habitat conditions.
    This SEA contains 383,000 acres of Federal land and 400,000 acres 
of non-Federal lands. Twenty-nine owl site centers are on non-Federal 
lands in this SEA; 78 site centers are located on Federal lands of 
which 53 rely to some degree upon adjacent non-Federal lands. 
Conservation goals for this SEA include demographic support for 
adjacent late-successional reserves and connectivity between reserves. 
Changes to the eastern boundaries of this SEA from the NOI in this 
proposal were made to better promote dispersal success of owls located 
within the eastern portion of this SEA.
    (e) Finney Block (Figure 10 to Sec. 17.41(c)).
    This SEA includes the non-Federal lands that surround the Finney 
Block AMA on the Mt. Baker-Snoqualmie National Forest. This SEA would 
link owl populations in Federal reserves with the owl population in the 
AMA. Owls located on non-Federal lands in this SEA also would bolster 
the owl populations in the Federal reserves and the AMA. These actions 
would supplement the Federal efforts under the Forest Plan by 
contributing to the stabilization of owl populations within this 
portion of the species range.
    This SEA contains 196,000 acres of Federal land and 266,000 acres 
of non-Federal lands. Two owl site centers are on non-Federal land in 
this SEA; 21 centers are located on Federal lands of which seven rely 
to some degree upon adjacent non-Federal lands. Conservation goals for 
this SEA include demographic support for the AMA and Federal reserves 
and connectivity between Federal reserves.
    (f) Hoh/Clearwater (Olympic Peninsula) (Figure 11 to 
Sec. 17.41(c)).
    Upon consideration of a recent reanalysis of owl persistence on the 
Olympic Peninsula (Holthausen et al. 1994) and other data and 
information, the Service has decided to alter its approach to the 
Olympic Peninsula from that set out in the NOI in December of 1993. The 
Service now proposes to significantly scale back the size of the SEA 
for the Peninsula and to relieve incidental take restrictions for 
spotted owls for the remainder of the Peninsula. Of the Federal lands 
on the Olympic Peninsula, only 8,400 acres of suitable owl habitat are 
available for timber harvest under the Federal Forest Plan.
    There has been long standing concern about the viability and 
persistence of spotted owls on the Olympic Peninsula. A recent 
reanalysis of the contribution of Federal and non-Federal habitat to 
persistence of the northern spotted owl on the Olympic Peninsula 
(Holthausen et al. 1994) concluded that there were 155 known owl pairs 
on the Olympic Peninsula and estimated a total population of between 
282 and 321 pairs. These estimates are substantially higher than 
earlier reported estimates.
    The Hoh/Clearwater SEA encompassing the western portion of the 
Peninsula contains about 1,000 acres of Federal lands and 471,000 acres 
of non-Federal lands. Twenty owl site centers are located on non-
Federal lands in this SEA. Conservation goals for this SEA are to 
maintain demographic support for Federal reserves, maintain a well-
distributed population, and provide connectivity within the province 
and between late-successional reserves. Changes in this SEA from the 
NOI were made to support the Federal effort in this province by drawing 
upon the resources of the remaining non-Federal concentration of owls 
and owl habitat on the western side of the Peninsula. The reanalysis 
report assessed the relative value of the Hoh/Clearwater SEA boundaries 
as proposed by the Service and did not compare or contrast alternative 
SEA boundary configurations for the western side of the Peninsula.
    Although recommendations were included in recent reports (USDI 
1992, Hanson et al. 1993, Buchanan et al. 1994) to retain incidental 
take restrictions on non-Federal lands in southwestern Washington, the 
Service believes that current non-Federal conservation planning 
activities (e.g., multi-species HCPs and no-take plans), new analyses 
(Holthausen et al. 1994), and other relevant factors support the 
decision not to propose southwestern Washington as an SEA. The Service 
reached this conclusion on Southwest Washington for a variety of 
reasons. First, while Southwest Washington constitutes an important 
part of the historic range of the spotted owl, there presently are only 
a small number of isolated owl pairs or resident singles across a vast 
expanse of marginal owl habitat. The inclusion of this area in an SEA 
would briefly protect home range areas for the few owls in the area, 
but once those owls die or move away, the protection for their home 
range areas would fade away as well, resulting in the eventual harvest 
of the areas. Moreover, while Southwest Washington previously had been 
assigned an important conservation function for providing connectivity 
with the isolated population of owls on the Olympic Peninsula in the 
Final Draft Spotted Owl Recovery Plan, recent reanalysis by Holthausen 
et al. indicates that the feasibility of the area ever serving this 
connectivity function, especially through application of incidental 
take prohibitions, is very low.
    Apart from considerations involving the Olympic Peninsula, the 
limited number of owls in southwest Washington and lack of present 
suitable habitat provide further support to the Service's decision to 
take an innovative approach to owl conservation in this area. While the 
Service might be able to prevent someone from destroying certain areas 
of existing suitable owl habitat where an owl is present, the Act 
cannot be used to force people to restore or enhance owl habitat that 
has already been destroyed or degraded. Thus, most landowners in 
Southwest Washington have little to no incentive at present to develop 
habitat that is attractive to owls.
    The acquisition of sufficient non-Federal land in Southwest 
Washington to establish a network of owl conservation reserves is not a 
feasible alternative either. The Final Draft Recovery Plan for the 
Spotted Owl estimated that the cost of such a reserve network could 
range from $200 million to $2 billion. Thus, neither land acquisition 
nor traditional enforcement policies are feasible catalysts for owl 
conservation in an area such as this which has limited suitable owl 
habitat.
    Recognizing the historic role that Southwest Washington played 
within the range of the owl, the Service is attempting to address these 
problems by aggressively moving forward with the development of multi-
species Habitat Conservation Plans with several of the large landowners 
in this province. In addition, one of the landowners has entered into a 
``take avoidance'' agreement covering 100,000 acres while working on 
their HCP. The agreement ensures that no owls will be taken as the 
result of timber harvest during the period in which the HCP is being 
developed. Thus, innovative approaches towards conservation provide the 
only realistic hope for facilitating long-term owl use and dispersal 
within Southwestern Washington.

[[Page 9502]]

Retention of Incidental Take Restrictions for Activities Inside of SEAs

    Subject to certain specified exceptions, the Service generally 
would retain existing incidental take protection for owls located 
within SEAs. The Service also would retain full incidental take 
protection for any owl whose site center is located within and along 
the boundary of an SEA and is dependent upon adjacent non-Federal lands 
located outside of the SEA to avoid harm. Thus, there are two 
categories of non-Federal lands which could remain subject to existing 
incidental take restrictions for an owl whose site center is located 
within the boundary of an SEA--those adjacent non-Federal lands located 
inside an SEA and those adjacent lands located outside of an SEA 
boundary but which are still necessary to provide sufficient suitable 
owl habitat so as to avoid the incidental take of an owl.
    One modification that the Service proposes to make to existing 
incidental take restrictions within SEAs would involve non-Federal 
lands surrounded by or located in matrix and AMA areas designated under 
the Federal Forest Plan. The Service proposes to authorize such 
affected non-Federal landowners involved in harvest activities to apply 
either the final management prescriptions delineated for the 
surrounding Federal Matrix/AMA land, as determined through the 
watershed analysis or AMA planning processes, as appropriate, or such 
management practices which comply with the current incidental take 
restrictions.
    Application of either management strategy would absolve the 
affected non-Federal landowner from any liability for incidental take 
of an owl under the Act. This would result in the application of more 
uniform owl conservation standards within a matrix or AMA area 
regardless of land ownership.
    The one exception to this policy would be where the adoption of 
matrix or AMA prescriptions could result in the incidental take of an 
owl whose site center is located within a Forest Plan reserve or 
Congressionally reserved or Administratively withdrawn area. As would 
be the case for similar site centers outside of SEAs, the incidental 
take restrictions would continue to apply for at least two more years 
for site centers within reserve or withdrawn areas. At the end of this 
period, the Service will review any new data or information involving 
the status of such owls and their habitats in the affected areas, 
including the results of any completed watershed analysis and other 
planning efforts under the Forest Plan. As noted previously in a 
discussion of this review process, the Service would assess on an area-
by-area basis whether the continuation of the incidental take 
prohibition on affected non-Federal lands was still necessary and 
advisable for achieving the conservation goals of the Forest Plan. The 
Service would lift the incidental take restrictions where warranted and 
authorize the adoption of the final matrix or AMA prescriptions, at the 
discretion of the affected non-Federal landowner, as a means of 
avoiding an unauthorized incidental take of an owl.
    One limited exception that the Service proposes to make to current 
incidental take restrictions within SEAs would involve small 
landowners. Except for the closest 70 acres of suitable habitat around 
owl site centers themselves, the Service proposes to relieve incidental 
take restrictions for small landowners who own, as of the date of this 
proposed rulemaking, no more than 80 acres of forestlands in a given 
SEA in Washington. The Service would also extend this proposal to small 
landowners who are outside of, but adjacent to, an SEA and whose lands 
are affected by the incidental take restrictions for an owl whose site 
center is located within the SEA. For these landowners, the maximum 
ownership figure of 80 acres would be calculated based upon the amount 
of land they owned inside an SEA and the amount of land outside the 
boundary of an SEA which was affected by current incidental take 
restrictions for an owl inside an SEA.
    The 80-acre figure for small landowners was selected after an 
analysis of land ownership patterns and an accounting for the size and 
location of lands covered by the Forest Plan, State forestlands, 
industrial forestlands, and known large ownerships of non-industrial 
forestlands. The Service also considered the fact that past Forest 
Service studies have shown that only a very small fraction of small 
landowners own forested lands for the exclusive purpose of economic 
return from commercial harvest. In addition, most small landowners 
utilize selective harvest techniques or small clear cuts which would 
generate only very minor and incremental effects on any particular owl. 
Despite their normal practices, however, the small landowners of the 
Northwest have resorted to ``panic cutting'' over their fear of Federal 
restrictions to protect owls. It is this category of landowner, in 
particular, who needs to be provided sufficient assurances of relief so 
they revert back to their past practices of low impact forestry.
    Based on this analysis, the Service concluded that relief from the 
incidental take prohibition for owls for landowners with less than 80 
acres of forestland within, or adjacent to, SEAs would have a deminimis 
impact upon owl conservation across the State. Moreover, given various 
technology limitations and the potential causation and burden of proof 
problems associated with proving incidental take to an owl from small 
scale land use activities of any one particular small landowner, the 
Service believes that there is a better allocation of its limited law 
enforcement resources than to attempt to enforce incidental take 
restrictions on someone owning 80 acres or less of forest land.
    The Service also proposes a ``Local Option Conservation Plan'' or 
Local Option approach to provide small and mid-sized landowners with 
additional flexibility in dealing with incidental take restrictions.
    The prohibition against incidental take in SEAs indirectly assists 
in maintaining pockets of suitable and dispersal habitat through the 
continued protection of suitable owl habitat around site centers. This 
prohibition also helps provide future stocks of juvenile spotted owls 
who would be more likely to migrate between key reserves. Since a 
primary need in many of these connectors is the development and 
maintenance of spotted owl dispersal habitat, the Service acknowledges 
that alternative means may be developed for achieving that objective. 
The use of the general incidental take prohibition in SEAs in 
Washington is valuable when dealing with a wide-ranging species like 
the northern spotted owl. Nevertheless, the Service recognizes the 
value in providing flexibility in a section 4(d) rule to allow for the 
modification of such prohibitions to better reflect local ecological 
conditions for a given area. Furthermore, in focusing on a single 
species objective in Special Emphasis Areas, broader landscape, 
watershed, or ecosystem conservation possibilities may be foreclosed. 
One of the key lessons the Service has learned in dealing with northern 
spotted owl issues over the years is that the variability of habitats 
and silvicultural practices is such that there might be more than one 
approach for providing conservation benefits to the owl. For that 
reason, this rule proposes to establish a Local Conservation Planning 
Option.
    The ``Local Option'' process would be limited to non-Federal 
landowners who own, as of the date of this proposed rulemaking, between 
80 and 5,000 acres of forestlands in an SEA in Washington. 
[[Page 9503]] This process could result in the authorization for the 
incidental take of an owl in exchange for an agreement to grow or 
maintain dispersal habitat. The local option conservation planning 
process would not apply, however, to those particular areas within a 
given SEA where the continued maintenance of suitable owl habitat on 
non-Federal lands is determined to be necessary and advisable in order 
to provide demographic support for adjacent Federal owl reserves.
    There is no official acreage designation defining a large acreage 
landowner that is common to the three States of Washington, Oregon and 
California. Definitions of small, medium and large land ownerships vary 
and more often differentiate between non-industrial or non-commercial 
private landowners. For purposes of various State regulatory analyses, 
taxation or economic policies, and Association memberships, e.g. 
Washington Farm Forestry Association, acreages ranging from 2,000 to 
10,000 acres have been used to differentiate between industrial and 
non-industrial landowners. For example, 5,000 acres is generally the 
for adjacent Federal owl reserves.
    There is no official acreage designation defining a large acreage 
landowner that is common to the three States of Washington, Oregon and 
California. Definitions of small, medium and large land ownerships vary 
and more often differentiate between non-industrial or non-commercial 
private landowners. For purposes of various State regulatory analyses, 
taxation or economic policies, and Association memberships, e.g. 
Washington Farm Forestry Association, acreages ranging from 2,000 to 
10,000 acres have been used to differentiate between industrial and 
non-industrial landowners. For example, 5,000 acres is generally the 
maximum acreage break-off point in Oregon to distinguish a non-
industrial forestland owner from an industrial one. Contracts with a 
mill will also qualify landowners as industrial. Given the range of 
acreage figures that has been utilized among the three States, the 
Service believes that a 5,000 acre break point is reasonable for 
purposes of this 4(d) rule. Accordingly, landowners with less than 80 
acres of forestland within an SEA have been treated as small landowners 
within this rule and have been provided specific relief up front. 
Landowners with overall forestland holdings greater than 80 acres and 
not more than 5,000 acres within an SEA are considered to be medium 
sized landowners and may pursue the ``Local Option'' process to seek 
greater flexibility in addressing prohibitions an incidental take. 
Finally, non-Federal landowners who have 5,000 or more acres of 
forestlands within an SEA in Washington would only receive relief from 
incidental take prohibitions for the spotted owl by completing an HCP 
and obtaining a permit under Section 10(a)(1)(B) of the Act.
    The landowner-initiated Local Option process must still provide for 
the primary spotted owl conservation objective specified for the 
Special Emphasis Area where the property is located. The Service 
encourages individual and adjacent multiple landowners to take 
advantage of this option cooperatively to achieve broader ecosystem 
conservation objectives which could have these benefits:

--multiple landowners could collaborate to provide greater management 
flexibility, more effective conservation benefits, and to minimize 
administrative costs;
--multiple species and habitats could be considered, potentially 
reducing the need to list declining species or anticipating 
requirements of future listings;
--land management treatments could become more consistent from Federal 
to non-Federal lands, particularly in checkerboard areas; and
--landowners could exercise additional flexibility to plan their 
forestry operations so as to best reflect localized environmental 
conditions within a Special Emphasis Area.

    This proposed rule would provide non-Federal landowners in 
Washington, in cooperation with the appropriate State agencies, the 
option of developing cooperative local conservation plans for timber 
harvests in areas of up to 5,000 acres within SEAs where the incidental 
take prohibition for the northern spotted owl would not be relieved by 
this proposed rule. These cooperative plans could provide non-Federal 
landowners with the opportunity to develop alternative management 
strategies or prescriptions for addressing the conservation needs of 
the owl.
    The Local Option Conservation Planning process is designed to 
encourage creative approaches to the conservation of the spotted owl by 
building flexibility into the regulatory process. Such efforts 
encourage coordinated management of listed species, like the northern 
spotted owl and the marbled murrelet. If a Local Option Plan is 
approved by the Service in consultation with the appropriate State 
wildlife agency, the prohibition against take of northern spotted owls 
incidental to timber harvests may be modified, to some degree, as 
specified in the Plan. The Service will review each proposed Local 
Option Plan cooperatively with the affected State wildlife agency to 
ensure that the conservation objectives for the owl in the affected 
area will not be precluded and that the proposal is complementary to 
the Federal Forest Plan.
    Under the local option process of this proposed rule, the primary 
focus would be on the spotted owl, although there might be 
opportunities for conserving other associated plant and animal species. 
Approval of a local option conservation plan would be an expedited 
process (compared to the HCP permit mechanism) through incorporation of 
specific conservation criteria and guidance provided by this proposed 
rule.
    A non-Federal landowner or local or State government may submit an 
application to the Service for approval of a proposed local option 
plan. If requested, the Service would provide further guidance for the 
development of a local option plan for a particular area. However, the 
applicant is responsible ultimately for the preparation of a local 
option plan proposal. The Service will be responsible for ensuring the 
plan's compliance with the National Environmental Policy Act. 
Appropriate State of Washington agencies may elect to participate with 
the Service in the review of local option plan proposals for areas 
within the State. In addition, if the State's regulations are 
consistent with this rule, a local option plan proposal could be 
certified through a State review process.
    In determining the criteria for approval of a local option plan, 
the Service has considered the information and approval requirements 
set forth at 50 CFR 17.32(b) for a section 10 HCP permit. Those 
requirements have been further streamlined for local option planning 
and have been tailored to meet the specific conservation needs of the 
spotted owl.
    Service approval of a local option conservation plan will be based 
on consideration of the information required to be submitted with an 
application for approval of a plan. Applications for approval of a 
local option conservation plan must be submitted to the Field 
Supervisor of the Fish and Wildlife Service office in Olympia, 
Washington.
    One additional proposed provision affecting timber harvest 
activities within an SEA involves the recognition and establishment of 
a ``safe harbor'' from owl incidental take liability where more than 40 
percent suitable habitat remains, post-harvest, within an owl's median 
annual home range. Although [[Page 9504]] some studies have suggested 
that rates of owl reproduction and survival may be affected to some 
degree at a percent of suitable habitat above 40 percent, the benefits 
of timber management certainty and the problem of enforcement 
difficulties tied to issues of causation nevertheless warrant a ``safe 
harbor'' approach. Thus, in those instances where more than 40 percent 
suitable owl habitat remains within an owl's median annual home range 
after harvest, a landowner would not be liable for prosecution should 
the incidental take of an owl nevertheless occur despite their best 
efforts to avoid take.

Relief From Current Incidental Take Provisions in California

    This proposed rule contains a shift in approach for California 
which has evolved since the publication of the NOI in December of 1993. 
The December 29, 1993, NOI did not specify any particular area in 
California where incidental take prohibitions would be relaxed, but 
instead stated the Service's intent to defer to California law to 
provide for the conservation of the spotted owl. In anticipation of 
that possibility, the California Board of Forestry considered a May 
1994 proposal from the California Resources Agency that would have 
required maintenance of suitable owl habitat as a portion of every 
watershed. The timber industry regarded the proposal as too 
restrictive, and regulatory agencies believed it would be too expensive 
to administer, so, the Board of Forestry tabled the proposal.
    To provide a possible resolution of this impasse, the Service 
proposes a new structure in this proposed rule as it applies to 
California which is consistent with the Service's original underlying 
biological assumptions for the owl in that State, as set forth in the 
December 29, 1993, NOI. The Service proposes to provide some immediate 
relief from incidental take in most of the California Klamath Province 
and for small landowners in the remainder of northern California within 
the range of the northern spotted owl. To encourage additional 
comprehensive conservation planning for the spotted owl and other 
species which is available under the California Natural Communities 
Conservation Planning program (NCCP), additional relief for four other 
areas of northern California (the California Cascades, Coastal, 
Hardwood, and Wells Mountain-Bully Choop Regions) (Figure 1 to 
Sec. 17.41(c)) would be available contingent upon the successful 
completion of a NCCP initiative for spotted owls which is complementary 
to, or not consistent with the owl conservation goals of the Federal 
Forest Plan as applied in that State. The actual scope and extent of 
relief for these four areas would be one of the primary issues to be 
addressed through the NCCP process. These four areas are called 
potential ``California Conservation Planning Areas'' (CCPAs) for 
purposes of this proposed rule.
Relief From Current Incidental Take Restrictions Inside The Klamath 
Province Relief Area

    The proposed rule would result in a reduction of the prohibition 
against incidental taking of owls for non-Federal lands within most of 
the Klamath Province in a zone called the Klamath Province Relief Area 
(Figure 1 to Sec. 17.41(c)). There are 105 spotted owl site centers 
located on non-Federal land within the Klamath Province Relief Center. 
An additional 117 site centers are on Federal land within the Relief 
Area which are dependent to some degree upon adjacent non-Federal 
lands. Within the area of relief, a landowner would only be required to 
retain the closest 70 acres of suitable owl habitat surrounding a site 
center. Thus, the incidental take of the spotted owl would not be 
prohibited for timber harvest activities outside those 70 acres. Such 
relief would not be provided throughout the entire Klamath Province 
however. In particular, it would not be provided in those areas that 
overlap with the boundaries of potential CCPAs, including the Wells 
Mountain-Bully Choop and the Hardwood Region Areas of the Klamath 
Province (Figure 1 to Sec. 17.41(c)). Relief would also not be provided 
for those owls in the Klamath Province Relief Area whose site centers 
are located on Federal Forest Plan reserves or Congressionally reserved 
or Administratively withdrawn areas and are dependent upon adjacent 
non-Federal lands. As noted previously in a discussion of similar site 
centers in the State of Washington, the Service will reassess the need 
for such continued protection over the next two years and will provide 
additional relief where warranted at the end of this assessment.

The California Cascades, Coastal, Hardwood Region and Wells Mountain-
Bully Choop CCPAs

    California's NCCP program (California Fish and Game Code 2800 et 
seq.) was initiated in 1991 to develop plans that would preserve 
biological diversity and reconcile development and wildlife needs on a 
local and regional level. It is designed to encourage public/private 
sector cooperation, maintain local control over land use decisions, and 
meet the objectives of State and Federal laws by preserving species and 
ecosystems before they are on the verge of extinction. Planning 
criteria and conservation strategies for certain species and 
communities are developed by scientific review panels.
    The California Resources Agency has indicated a willingness to 
consider initiating an NCCP process for portions of the range of the 
spotted owl. The Service would encourage the California Resources 
Agency to convene key stakeholders and regulatory agencies in an NCCP 
process for the California Cascades, Coastal, Hardwood and Wells 
Mountain-Bully Choop areas of the State (Figures 2 and 3 to 
Sec. 17.41(c)). The Service recognizes that the actual designation of 
any CCPA is a discretionary administrative matter controlled by the 
California Resources Agency. Accordingly, this proposed rule would 
recognize these four regions as potential CCPA areas, serving as a 
``place holder'' in the 4(d) rule until such time as an NCCP planning 
process is undertaken and completed. One goal of such a planning effort 
would be to facilitate and encourage the development of ownership-wide 
or Region-wide management plans and criteria which adequately provide 
for the conservation needs of the owl and which complement the owl 
conservation goals of the Federal Forest Plan. The actual content and 
scope of such plans would be developed through the NCCP process itself. 
Ultimately, the planning process must address, to the satisfaction of 
the State regulatory agencies and the Service, an appropriate balance 
between providing some measure of regulatory relief while achieving or 
maintaining the conservation goals for the spotted owl for a particular 
region.
    Under the NCCP approach, the incidental take of the spotted owl 
would not be prohibited under the Act if take were the result of 
activities conducted according to an approved CCPA plan. This would 
require the Service to first determine, in consultation with the 
California Departments of Fish and Game and Forestry and Fire 
Protection, that the plan meets the overall requirements of the Act and 
the conservation goals for the owl in that area and is complementary to 
the Federal Forest Plan. The process should also consider the extent to 
which new Board of Forestry Sustained Yield Plans (SYPs) could be used 
as a basis for incidental take authorization, provided that such SYPs 
had been reviewed and approved by the Service after consultation with 
appropriate State agencies. A joint State and Federal National 
Environmental Policy Act/ [[Page 9505]] California Environmental 
Quality Act (NEPA)/(CEQA) document could be prepared to review the 
environmental effects of each CCPA plan, including any incidental take 
of owls.
    Potential CCPA boundaries described below were derived from earlier 
planning efforts by the State (CDF 1992) and knowledge of current 
Federal conservation efforts. To the extent that the boundaries of 
these potential CCPAs are somewhat different from traditional past 
descriptions of spotted owl provinces in California, they merely 
represent sub-units of owl provinces.
    The areas discussed below could be designated as CCPAs under the 
California NCCP Act for purposes of northern spotted owl or possible 
multi-species conservation planning. Of the 837 spotted owl site 
centers on non-Federal lands in California, 732 are in the combined, 
proposed CCPAs. There are an additional 228 site centers on Federal 
lands within the proposed CCPAs, of which 87 rely to some degree upon 
adjacent non-Federal lands.
    (a) Coastal Area (Figure 2 to Sec. 17.41(c)).
    Extending from the Oregon border south to San Francisco Bay, this 
area is west of the Six Rivers and Mendocino National Forests. It 
consists of approximately 293,000 acres of Federal land, and 3.6 
million acres of non-Federal land. Timber management is the primary 
land use on about 2 million acres and is concentrated in the heavily 
forested redwood zone within 20 miles of the Pacific Ocean coastline. 
In the more inland and southerly portions of the area, spotted owl 
habitat is largely confined to the lower portions of drainages and is 
naturally fragmented by grasslands, hardwoods, and chaparral.
    The coastal area of northern California plays an important role in 
the conservation of the species. It represents more than 10 percent of 
the range of the spotted owl and has substantial owl populations in 
managed forests. Approximately 642 owl site centers located on non-
Federal lands are known in this area, virtually all of them are in 
managed second-growth timber stands; 66 site centers are located on 
Federal lands of which 30 rely to some degree upon adjacent non-Federal 
lands.
    Due to the owl's widespread distribution, the predominance of 
selective harvest methods, and the rapid regrowth of habitat, the 
degree of threat to the species in much of this area appears to be 
relatively low. According to analyses conducted by the California 
Resources Agency (Berbach et al. 1993), more than 75 percent of the 
quarter-townships in the three northern coastal counties (Del Norte, 
Humboldt, and Mendocino) meet or exceed the standard for spotted owl 
dispersal habitat described by the ISC (Thomas et al. 1990). Some 
degree of incidental take could be accommodated while maintaining a 
well-distributed spotted owl population. The magnitude of such 
incidental take, however, would be one of the items to be addressed 
through the NCCP process.
    Because Federal lands are limited, they play a small role in the 
conservation of the species in the California Coastal area. The Forest 
Plan has placed most of the existing late-successional forests in the 
BLM's scattered parcels (a few thousand acres) into reserves, and 
Redwood National Park also provides late-successional habitat in the 
northern portion of this area. However, these limited Federal reserves 
cannot support enough spotted owls to provide for the conservation of 
the species in the coastal province. Therefore, non-Federal lands are 
generally very important to the conservation of the spotted owl.
    Significant non-Federal conservation efforts are already in place 
or under development in the California Coastal area. Several timber 
companies have made substantial investments in information-gathering 
and planning for owl conservation. The Simpson Timber Company has 
completed an HCP (Simpson 1992) and received a permit for incidental 
take of a limited number of spotted owls on its 380,000-acre property. 
Pursuant to the HCP, Simpson Timber has set aside 40,000 acres for at 
least 10 years, is conducting research on habitat characteristics, and 
has banded more than 600 owls. The Pacific Lumber Company is conducting 
banding and radio-telemetry studies, and has completed a management 
plan for its 200,000-acre property that maintains owl habitat in every 
watershed and protects all spotted owl nest sites from take. The 
Georgia-Pacific and Louisiana-Pacific Corporations have conducted 
banding and radio-telemetry studies in cooperation with the CDFG; 
analyses of these data are under way. Numerous smaller-acreage 
landowners have conducted surveys and provided data to the State's 
spotted owl database.
    Planning a conservation strategy for spotted owls in the California 
Coastal area is a complex task due to the large number of landowners 
(conservatively estimated at 30,000 to 50,000 (CDF 1992). Therefore, 
except for a small landowner exemption for people owning less than 80 
acres of forestland within a given CCPA and an additional adjustment 
for non-Federal lands within matrix and AMA areas, the Service is not 
proposing to remove the prohibition of incidental take for this area at 
this time, but will cooperate in anticipated efforts by the California 
Resources Agency to utilize the NCCP process to further refine an 
acceptable owl conservation program for this area that addresses the 
question of additional relief.
    (b) Hardwood Region (Figure 2 to Sec. 17.41(c)).
    In the southern portion of the California Coast Province and the 
California Klamath Province, suitable habitat is scattered due to 
effects of climate, soils, and human development. This area, which 
includes much of Lake, Sonoma, Napa, and Marin Counties is dominated by 
hardwoods and was designated as the Hardwoods Subprovince during the 
California HCP planning effort (CDF 1992). It consists of approximately 
755,000 acres of Federal land and 2.0 million acres of non-Federal 
land. Approximately 57 owl site centers located on non-Federal lands 
are known in this area; 70 site centers are located on Federal land of 
which 9 rely to some degree upon non-Federal lands. In this area, 
spotted owls are widely scattered and often isolated in small patches 
of habitat. Because the area contains minimal Federal land, maintenance 
of the species' current range would depend almost entirely on providing 
for owls on non-Federal lands.
    (c) Wells Mountains--Bully Choop (Figure 3 to Sec. 17.41(c)).
    This area is in eastern Trinity County south of the Salmon-Trinity 
Alps Wilderness, and, as identified in the draft Recovery Plan, 
provides an important link between the California Klamath Province and 
the California Cascades Province. This area consists of approximately 
116,000 acres of Federal land and 176,000 acres of non-Federal lands, 
and is managed under Sierra-Pacific Industries' no-take owl management 
plan. Approximately 13 owl site centers located on non-Federal lands 
are known in this area; 7 site centers are located on Federal lands of 
which all 7 rely to some degree upon adjacent non-Federal lands. 
Conservation goals include maintenance of owl populations and dispersal 
habitat.
    (d) California Cascades (Figure 3 to Sec. 17.41(c)).
    The California Cascades Province is east of the California Klamath 
Province. It consists of approximately 1.3 million acres of Federal 
land and 1.6 million acres of non-Federal land. Checkerboard Federal/
non-Federal ownership patterns predominate. Due to the relatively dry 
climate and the history of recurrent [[Page 9506]] wildfires in this 
province, spotted owl habitat is naturally fragmented by chaparral and 
stands of deciduous hardwoods. In portions of the province, exclusion 
of fire during the last century may have encouraged development of 
mixed-conifer habitat suitable for spotted owls. However, during the 
same period, timber harvest has removed substantial amounts of suitable 
habitat. Approximately 105 widely scattered site centers are known. Of 
these sites, 20 are centered on non-Federal lands and 85 are centered 
on Federal lands, of which 46 rely to some degree upon adjacent non-
Federal lands. The potential for dispersal throughout the province 
appears to be limited. This province provides the demographic and 
genetic link between the northern spotted owl and the California 
spotted owl (Strix occidentalis occidentalis) of the Sierra Nevada 
range.
    Currently, threats in this province include low population numbers, 
the difficulty in providing for interacting population clusters, and 
fragmented dispersal habitat. Catastrophic wildfire is a significant 
threat to habitat. In 1992, a 70,000-acre fire in Shasta County 
substantially reduced the likelihood of contact between the northern 
spotted owl and the California spotted owl for the next several 
decades.
    Due to the existing habitat condition and the importance of the 
province in linking the two subspecies, the entire province has been 
designated as an area of concern by every spotted owl management plan 
to date. The Forest Plan provides protection of habitat in the home 
range of each northern spotted owl found in the province. The province 
contains the 172,000-acre Goosenest AMA on the Klamath National Forest. 
Sierra-Pacific Industries' owl management plan covers the majority of 
the extensive non-Federal checkerboard ownership in the province. The 
primary conservation needs for both Federal and non-Federal lands are 
research on habitat use by nesting and dispersing spotted owls, and 
providing habitat for a well-distributed population and dispersal 
throughout the province. Because of the poor biological status of the 
owl in this province, the opportunity for large scale relief in this 
area is very limited at present. Should additional data or information 
suggest that the status of the owl has stabilized or is improving, 
options for this Province would be reconsidered.

Other Related Provisions

    As is the case in the State of Washington, the proposed rule would 
also include a ``safe harbor'' for any timber harvest activity where 
more than 40 percent suitable habitat remained, post harvest, within an 
owl's median annual home range. This provision would be relevant for 
harvest activities within the four potential CCPAs.
    The Service proposes to provide immediate relief upon the effective 
date of the final rule from owl incidental take restrictions for small 
landowners in California. Such relief would be independent of, and in 
advance of any Natural Community Conservation Planning (NCCP) process. 
Except within the 70-acre owl activity centers themselves, the Service 
proposes to relieve small landowners who own no more than 80 acres of 
forestland in a given CCPA as of the date of publishing this proposed 
rule in the Federal Register, from the prohibition against the 
incidental take of owls. The 80 acres/small landowner relief provision 
would remain in effect regardless of whether an NCCP process was 
ultimately successful in a given CCPA. The relief provision would be 
applicable in all four potential CCPAs. It would be unnecessary in the 
Klamath Province Relief Area, which is the subject of a broader 
proposal to relax incidental take restrictions.
    The Service also proposes to modify existing incidental take 
restrictions within potential CCPAs that would involve non-Federal 
lands located amid matrix or Adoptive Management Areas (AMA) designated 
under the Federal Forest Plan. Where such non-Federal lands are subject 
to incidental take prohibitions for a given owl, the Service proposes 
to authorize the affected non-Federal landowners to apply either the 
final management prescriptions for the surrounding Federal Matrix/AMA 
land, as determined through the watershed analysis or AMA planning 
processes, as appropriate, or such management practices which comply 
with the current incidental take restrictions.
    Application of either management strategy would absolve the 
affected non-Federal landowner from any liability for incidental take 
of an owl under the Act, resulting in the application of more uniform 
owl conservation standards within a matrix/AMA area regardless of land 
ownership.
    The one exception to this policy would be where the adoption of 
matrix or AMA prescriptions could result in the incidental take of an 
owl whose site center is located within a Forest Plan reserve or 
Congressionally reserved or Administratively withdrawn area. In such a 
case, the incidental take restrictions would continue to apply for at 
least two more years. At the end of this period, the Service will 
review any new data or information involving the status of such owls 
and their habitats in the affected areas, including the results of any 
completed watershed analysis and other planning efforts under the 
Forest Plan. As noted previously in a discussion of this review 
process, the Service would assess on an area-by-area basis whether the 
continuation of the incidental take prohibition on affected non-Federal 
lands was still necessary and advisable for achieving the owl 
conservation goals of the Forest Plan. The Service would lift the 
incidental take restrictions where warranted and authorize the adoption 
of the final matrix or AMA prescriptions, at the discretion of the 
affected non-Federal landowner, as a means of avoiding an unauthorized 
incidental take of an owl.
    Table 1 provides a summary of the various areas where incidental 
take relief could be provided or prohibitions retained in the two 
States affected by this proposed rule.

                                                                                                                                                                                                
[[Page 9507]]
                                                     Table 1                                                    
----------------------------------------------------------------------------------------------------------------
                                                                    California owl sites                        
  Landowner type    Washington owl sites    Washington owl sites    inside Klamath relief   California owl sites
                        outside SEAs             inside SEAs                area                inside CCPAs    
----------------------------------------------------------------------------------------------------------------
Less than 80       Relief for all          Relief except for 70-   Relief for all          Relief except for 70-
 acres.             landowners except for   acre core.              landowners except for   acre core.          
                    70-acre core.                                   70-acre core.                               
80-5,000 Acres...  Relief for all          Matrix/AMA              Relief for all          Matrix/AMA           
                    landowners except for   prescription option.    landowners except for   prescription option.
                    70-acre core or where   Additional relief       70-acre core or where   Additional relief   
                    current restrictions    contingent upon         current restrictions    contingent upon     
                    are necessary to        acceptable Local        are necessary to        successful          
                    protect owls on a       Option Plan.            protect owls on a       completion of NCCP  
                    Federal reserve or                              Federal reserve or      process.            
                    withdrawn area                                  withdrawn area.                             
                    (except for Olympic                                                                         
                    Peninsula).                                                                                 
More than 5,000    Relief for all          Matrix/AMA              Relief for all          Matrix/AMA           
 Acres.             landowners except for   prescription option.    landowners except for   prescription option.
                    70-acre core or where   Additional relief       70-acre core or where   Additional relief   
                    current restrictions    contingent upon         current restrictions    contingent upon     
                    are necessary to        acceptable Local        are necessary to        successful          
                    protect owls on a       Option Plan.            protect owls on a       completion of NCCP  
                    Federal reserve or                              Federal reserve or      process.            
                    withdrawn area                                  withdrawn area.                             
                    (except for the                                                                             
                    Olympic Peninsula).                                                                         
----------------------------------------------------------------------------------------------------------------

Incidental Take on Tribal Lands

    For Indian forest lands, as that term is defined at 25 CFR 163.1, 
in California and Washington, the proposed rule would result in the 
reduction of the current Federal prohibition against the incidental 
take of the spotted owl. Under this proposal, Tribes would be required 
to maintain only the closest 70 acres of suitable owl habitat around an 
owl site center. Any additional restrictions or prohibitions under 
Tribal law would continue to apply. The Service is proposing this 
approach in recognition of the conservation benefits provided the 
northern spotted owl under harvest methods practiced by many Indian 
Nations, such as the Yakima Indian Nation in Washington. Many tribal 
lands are already managed under conservation strategies for the owl or 
are of little habitat value for the bird. Moreover, the Service notes 
that the Secretary's trust responsibility for Native Americans provides 
him with additional fiduciary factors to weigh in exercising his broad 
discretionary authority under Section 4(d) of the Act.

Sunset Provision

    The Service proposes a process that could result in the 
modification of the prohibitions of incidental take that are retained 
under this proposed rule should future biological information so 
warrant in either California or Washington.
    Under this sunset provision, the Service would periodically 
evaluate the conservation goals for non-Federal lands within SEAs or 
possible CCPAs and would decide whether the conservation goals for owls 
in those areas have been accomplished as a result of future HCPs, no-
take agreements, or other affirmative conservation activities. Should 
the Service conclude that success has been achieved in reaching the 
conservation needs of the species within a given area, restrictions due 
to incidental take prohibitions could be further modified or lifted, as 
information warrants.

Other Federal Mechanisms for Promoting the Conservation of the Spotted 
Owl

    The listing of the spotted owl, the designation of its critical 
habitat, and the application of Act regulations at 50 CFR Part 17 have 
extended the protection of the Act to this species. Under section 7 of 
the Act and the implementing consultation regulations at 50 CFR 402, 
individual project review occurs through the consultation process for 
those actions authorized, funded, or carried out by Federal agencies 
that may affect a listed species like the spotted owl or its designated 
critical habitat. The Section 7 consultation process is designed to 
ensure that a proposed action is not likely to jeopardize the continued 
existence of the species or adversely modify its critical habitat. The 
consultation process also requires the Service to determine what level 
of incidental take is likely to occur as a result of that action. After 
completing this determination, the Service issues an incidental take 
statement that is designed to minimize both the level and the impact of 
take on listed species.
    In 1982, Congress amended section 10(a)(1)(B) of the Act to provide 
an additional mechanism for encouraging non-Federal support for the 
conservation of listed species. More commonly known as Habitat 
Conservation Planning or HCPs, this mechanism authorizes the incidental 
take of a listed species in exchange for a commitment from a private 
developer or landowner for a long-term conservation program for the 
affected species.
    Section 10(a)(1)(B) of the Act, requires non-Federal applicants to 
develop Habitat Conservation Plans for listed species which would be 
incidentally taken in the course of otherwise lawful activities, and to 
submit such plans along with an application for an incidental take 
permit. Such plans can direct significant private sector resources in 
support of the overall conservation of the affected species on non-
Federal lands. Three section 10(a)(1)(B) incidental take permits for 
the northern spotted owl have already been issued by the Service. A 
number of other non-Federal entities are in the process of developing 
HCPs for the spotted owl. The section 10 HCP process will remain 
available to non-Federal landowners under the proposed rule and will 
provide an additional alternative for adjusting the incidental take 
prohibitions set forth in this proposed rule. The initiation of a major 
and aggressive Habitat Conservation Planning Program for non-Federal 
forestlands in the Pacific Northwest is an integral and crucial 
component of the Administration's overall owl conservation program. 
When combined with the conservation goals of the Federal Forest Plan 
and this proposed section 4(d) rule, the Service's Habitat Conservation 
Planning initiative provides the third element for a comprehensive 
strategy for the owl.

Incentives for Restoring or Enhancing Owl Habitat

    Prohibitions against the incidental take of the spotted owl have 
existed since the species was Federally listed in June of 1990. The 
Service believes that many landowners have felt threatened by the 
current regulations which could [[Page 9508]] be viewed as a 
disincentive to enhance, restore, or maintain habitat in a condition 
that is suitable for owl nesting, roosting, foraging, or dispersal. The 
disincentive stems from landowners' fears that owls might establish 
residence on, or move through, their property and impede their ability 
to manage their timber resources. This disincentive has had the effect 
of increasing timber harvest of currently suitable owl habitat and 
younger forests on non-Federal lands which are not presently affected 
by the presence of an owl. With regard to younger forests in 
particular, this concern or fear has accelerated harvest rotations in 
an effort to avoid the regrowth of habitat that is useable by owls.
    For those non-Federal lands which are not currently affected by 
incidental take restrictions for spotted owls, the Service proposes to 
provide a new incentive to landowners to voluntarily manage their lands 
in a manner which aids in owl conservation without increased regulatory 
liability for the landowner. In particular, the Service desires to 
encourage landowners to restore or enhance former owl habitat which has 
been previously altered and is of little current value to the owl. The 
Service is also interested in encouraging owners of current suitable 
owl habitat to maintain that habitat and to forego premature cutting as 
the only perceived means of avoiding future incidental take 
restrictions for the owl.
    The Service would offer to work directly with a non-Federal 
landowner through a written conservation or cooperative agreement for 
the purpose of managing, restoring or enhancing forest habitat so as to 
contribute to the survival and recovery of the owl. Working with the 
affected landowner, the Service would first establish an environmental 
baseline for the property to confirm that no Endangered Species Act-
based spotted owl restrictions currently apply to the land. The Service 
might provide such other conservation advice or assistance as is 
feasible and available. The agreement would be of sufficient duration 
so as to enhance the conservation of the owl or to provide some benefit 
to the owl while still allowing economic use of the property during the 
term of the agreement.
    At the end of the agreement, or at any time thereafter, the 
landowner would be free to use his or her property as desired without 
restrictions under the Act for the spotted owl. This would be the case 
even if an owl established residence or dependency upon the property at 
some point during or after the terms of the agreement. During the life 
of the agreement, the landowner also would be authorized to 
incidentally take any spotted owl which was otherwise in accordance 
with the use of the property under the agreement.
    The Service believes that an incentives program of this sort will 
encourage primarily the development of dispersal habitat under 
restoration and enhancement agreements and will slow down the harvest 
of suitable owl habitat under habitat maintenance agreements. Under any 
of these approaches, there is a potential benefit for the spotted owl. 
Most owls using dispersal habitat are not likely to remain dependent 
upon that habitat as part of a resident pair or as a single. Instead, 
they are likely to use the area as a corridor for moving from one block 
of suitable habitat to another. Under these circumstances, any 
incidental take that might otherwise occur through land use activities 
on the property is likely to be inconsequential or very limited in 
impact or duration.
    In addition, the opportunity for subsequent immunity from 
incidental take restrictions should provide an incentive to owners of 
suitable owl habitat to forego panic cutting and to enter into habitat 
maintenance agreements. By discouraging legal but potentially 
unsustainable harvests now, and stretching the retention of suitable 
owl habitat for the life of a maintenance agreement, the Service and 
the landowner would keep such habitat available for owl use during the 
pendency of the agreement.
Incidental Take of Other Listed Species

    Several other Federally-listed species occur in the late-
successional and old-growth forests that provide habitat for the 
spotted owl. The bald eagle (Haliaeetus leucocephalus), peregrine 
falcon (Falco peregrinus), gray wolf, grizzly bear (Ursus arctos), and 
marbled murrelet are known to occur on non-Federal lands in the range 
of the owl; the prohibition of take of these species incidental to 
timber harvest would remain in place.
    The Service is concerned about the effects of harvest activities on 
the marbled murrelet, particularly since the range of the spotted owl 
significantly overlaps the range of the murrelet. Some areas of relief 
under this proposed rule for the spotted owl might also provide habitat 
that is occupied by the marbled murrelet. Since the date of the 
original listing of the murrelet, the Service has been acquiring as 
much additional data and information as possible to identify the 
constituent elements of suitable murrelet habitat, as well as to expand 
a landowner's ability to determine whether or not such habitat is 
occupied. Significant progress also has been made in the development of 
a draft recovery plan for the murrelet. The draft recovery plan should 
be available for public comments in two to three months. In order to 
aid a landowner in determining whether a property is occupied by 
murrelets, the Service encourages landowners to contact one of the Fish 
and Wildlife Service's three Ecological Services State Offices noted 
previously in this document, and request guidance or information on 
delineating suitable murrelet habitat and conducting murrelet surveys 
to determine presence of murrelets on a given piece of property. This 
will ensure that landowners who might receive relief from owl 
restrictions under this proposed rule are aware of the latest data on 
occupied habitat for murrelets.
    The Service recognizes that additional incidental take of spotted 
owls may occur in SEAs in Washington and CCPAs in California, as HCPs 
or other long-term conservation agreements, e.g. local option 
conservation plans, are implemented and further take is authorized. 
However, the Service believes that the overall level of incidental take 
is acceptable in light of the habitat-based conservation strategy in 
the Forest Plan and the fact that such plans or agreements must satisfy 
the conservation requirements of the Act. The Service will review the 
effects of the proposed rule under a section 7 consultation as part of 
the process to complete this proposed rule.
    In Washington and California, the Service believes that the relief 
from prohibitions for non-Federal landowners outside of SEAs or CCPAs 
and for non-Federal landowners with holdings of less than 80 acres of 
forestland in a given SEA or CCPA would not preclude the recovery of 
the spotted owl and will facilitate the maintenance of habitat 
conditions in some areas by removing disincentives that currently 
account for the premature cutting of habitat.
    In general, the contributions of Federal, State, Tribal and private 
land management and conservation efforts for protection of the spotted 
owl and other species allow for reduction of the prohibitions on 
incidental take of the owl in many areas on non-Federal lands. As a 
result of this proposed rule, landowners would have more certainty 
about the conditions under which incidental take is likely to occur. 
Finally, the Service points to the long-term benefit to the owl of 
enhanced public support for the Act.

Public Comments Solicited

    The Service intends that any final action resulting from this 
proposed rule [[Page 9509]] would be as accurate and as effective as 
possible. Therefore, comments or suggestions from the public, other 
government agencies, the scientific community, industry, or any other 
interested party concerning this proposed rule are solicited. In 
particular, the Service seeks comments on:
    (1) The distribution, abundance, and population trends of spotted 
owls on non-Federal lands in Washington and California as they would 
relate to the approaches described in this proposed rule;
    (2) The boundaries of the proposed SEAs or CCPAs identified for 
Washington and California and suggestions for modification of these 
boundaries. In order to better assess available data on the region, the 
Service particularly would like to encourage public comment on the 
question of whether it is necessary and advisable for the conservation 
of the spotted owl to designate a Special Emphasis Area on the western 
side of the Olympic Peninsula, and if so, whether the present proposed 
boundaries of the Hoh/Clearwater Special Emphasis Area are warranted or 
whether they should be reduced in size or significantly reconfigured.
    (3) The distribution and abundance of spotted owl populations that 
are outside of SEAs or CCPAs;
    (4) The biological and economic implications of applying the 
proposed rule in Washington and California;
    (5) The applicability of the definitions of suitable habitat and 
dispersal habitat for the spotted owl, specific to provinces if 
possible;
    (6) The implications of the proposed rule on small-acreage (less 
than 80 acres), medium-acreage (80 to 5,000 acres), and large-acreage 
(more than 5,000 acres) non-Federal landowners and comments on how 
these different ownerships are addressed in the proposed rule;
    (7) The scope and effect of the ``local option'' process for 
landowners who own 80 to 5,000 acres in SEAs in the State of 
Washington;
    (8) The biological or economic implication of proposing a different 
SEA/CCPA approach where non-Federal buffers would be retained around 
any owl site centers located on Federal reserves in designated areas, 
and whether SEA/CCPA boundaries would change as a result of applying 
this type of approach; and
    (9) Recommendations or comments on how to implement the proposed 
Habitat Enhancement Agreement conservation program for the owl, 
particularly with regards to possible provisions of such agreements, 
scope of duration of such agreements and land use assurances to private 
landowners which would be necessary to encourage voluntary 
participation.
    Final promulgation of the proposed rule will take into 
consideration the comments and any information received by the Service. 
Any information the Service receives during the comment period may lead 
to a final rule that differs from this proposed rule.
    The Act provides for a public hearing on the proposed rule, if 
requested. Requests must be received within 45 days of the date of 
publication of this proposed rule. Such requests must be written and 
addressed to: Regional Director, Region 1, U.S. Fish & Wildlife 
Service, 911 N.E. 11th Avenue, Portland, Oregon 97232-4181.

Section 7 Consultation

    Review, pursuant to section 7 of the Act, will be conducted prior 
to issuance of a final rule to ensure that the proposed action will not 
jeopardize the continued existence of the spotted owl or any other 
listed species.
National Environmental Policy Act

    The Fish and Wildlife Service is complying with NEPA in 
implementing the provisions of this proposed rule. The Service prepared 
an environmental assessment on this proposal and has decided to engage 
in a more intensive assessment of impacts through the preparation of an 
environmental impact statement (EIS). The Service is preparing a draft 
EIS at this time. The draft EIS will be published and available for 
public review and comment approximately 60 days after publication of 
this proposed rule. The end of the public comment period for the 
proposed rule will ultimately be extended to coincide with the end of 
the public comment period for the draft EIS.

Required Determinations

    This proposed rule was reviewed under Executive Order 12866. The 
Service has not yet made a determination of the economic effects of the 
proposed rule on small entities as required under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). Specific economic effects of 
the proposed action will be discussed in the economic analysis that is 
included in the Environmental Impact Statement (EIS) for the proposed 
action. The EIS will be published and available for public comment at a 
later date. This rule does not require a Federalism assessment under 
Executive Order 12612 because it would not have any significant 
federalism effects as described in the order. The collection of 
information contained in this proposed rule have been approved by the 
Office of Management and Budget under U.S.C. 3501 et seq. and assigned 
clearance number 1018-0022. The Service has determined that this 
proposed action qualifies for categorical exclusion under the 
requirements of Executive Order 12630, ``Government Actions and 
Interference with Constitutionally Protected Property Rights'', and 
preparation of a Takings Implications Assessment is not required. 
Regulations that authorize take of listed species, as is proposed in 
this special rule, are designated as categorical exclusions.

References Cited

Bart, J. and E.D. Forsman. 1992. Dependence of northern spotted owls 
(Strix occidentalis caurina) on old-growth forests in the western 
USA. Biological Conservation 62:95-100.
Berbach, M., G.I. Gould, Jr., J. Stenback, H. Eng, and R. Marose. 
1993. GIS analysis of northern spotted owl dispersal habitat on 
private lands in Del Norte, Humboldt, and Mendocino Counties, 
California. Trans. West. Sec. Wildl. Soc. Vol. 29. Sacramento, 
California.
Buchanan, J., Hanson, E., Hays, D., and L. Young, L. 1994. An 
evaluation of the Washington Forest Practices Board Wildlife 
Committee preferred alternative for a spotted owl protection rule: a 
report to the Washington Forest Practices Board. Washington Forest 
Practices Board Spotted Owl Advisory Group. Olympia, Washington.
Hanson, E., Hays, D., Hicks, L., Young, L., and J. Buchanan. 1993. 
Spotted owl habitat in Washington: a report to the Washington Forest 
Practices Board. Washington Forest Practices Board Spotted Owl 
Advisory Group. Olympia, Washington.
Holthausen, R.S.; Raphael, M.G.; McKelvey, K.S.; Forsman, E.D.; 
Starkey, E.E.; Seaman, D.D. 1994. The Contribution of Federal and 
Nonfederal Habitat to Persistence of the Northern Spotted Owl on the 
Olympic Peninsula, Washington. Report of the Reanalysis Team.
Murray Pacific Corp. 1993. Habitat conservation plan for the 
northern spotted owl on forestlands owned by the Murray Pacific 
Corporation, Lewis Co., Washington.
Ralph, C.J., Nelson, S.K., Shaughnessy, M.M., Miller, S.L.; Hamer, 
T.E. 1994. Methods for surveying marbled murrelets in forests; a 
protocol for land management and research. Pacific Seabird Group, 
Technical paper #1, revised. USDA Forest Service, Pacific Southwest 
Research Station, Arcata, California. 50p.
Simpson Timber Co. 1992. Habitat conservation plan for the northern 
spotted owl on the California Timberlands of Simpson Timber Company.

[[Page 9510]]

Thomas, J.W., E.D. Forsman, J.B. Lint, E.C. Meslow, B.R. Noon, and 
J. Verner. 1990. A conservation strategy for the northern spotted 
owl. Interagency Scientific Committee to Address the Conservation of 
the Northern Spotted Owl, U.S. Department of Agriculture, Forest 
Service, and U.S. Department of Interior, Bureau of Land Management, 
Fish and Wildlife Service, National Park Service, Portland, Oregon.
Thomas, J.W., M.G. Raphael, R.G. Anthony, E.D. Forsman, A.G. 
Gunderson, R.S. Holthausen, B.G. Marcot, G.H. Reeves, J.R. Sedell, 
D.M. Solis. 1993. Viability assessments and management 
considerations for species associated with late-successional and 
old-growth forests of the Pacific Northwest. Portland, Oregon. U.S. 
Department of Agriculture, Forest Service.
Tuazon, R., DePree, J., Gaffin, J., Harris, R., Johnson, R., Murray, 
G., Roush, L., Whitlock, W., and R. Zwanziger. 1992. Northern 
spotted owl habitat conservation plan for private forestlands in 
California. Draft prepared for California Board of Forestry.
USDA/USDI/NOAA/EPA. 1993. Forest Ecosystem Management: An 
Ecological, Economic, and Social Assessment. A Report of the forest 
Ecosystem Management Assessment Team. July, 1993. Portland, Oregon.
USDA/USDI. 1994a. Final supplemental environmental impact statement 
on management of habitat for late-successional and old-growth forest 
related species within the range of the northern spotted owl. 
Portland, OR. 2 vol.
USDA/USDI. 1994b. Record of decision for amendments to Forest 
Service and Bureau of Land Management planning documents within the 
range of the northern spotted owl. Portland, OR: Forest Service, 
Bureau of Land Management.
USDI. 1990. 1990 status review of the northern spotted owl. Fish and 
Wildlife Service, Portland, Oregon.
USDI. 1992. Recovery plan for the northern spotted owl; final draft. 
Portland, Oregon: U.S. Department of Interior, 2 vol.; December 
1992.
USFWS. 1992. Protocol for surveying proposed management activities 
that may impact northern spotted owls. March 17, 1992. Portland, 
Oregon.
Warm Springs Indian Reservation. 1993. Forest management 
implementation plan 1992 through 2001. Warm Springs, Oregon.

Authors

    The principal authors of this proposed rule are Gerry Jackson, U.S. 
Fish and Wildlife Service, Deputy Assistant Regional Director, North 
Pacific Coast Ecosystem, 911 N.E. 11th Avenue, Portland, Oregon 97232; 
Curt Smitch, U.S. Fish and Wildlife Service, Assistant Regional 
Director, North Pacific Coast Ecosystem, 3704 Griffin Lane SE, Suite 
102, Olympia, Washington 98501; and Don Barry, Counselor to Assistant 
Secretary for Fish, Wildlife and Parks, 1849 C Street NW, Washington, 
DC 20240.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes 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; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.


Sec. 17.11  [Amended]

    2. Section 17.11(h), is amended by revising the ``special rules'' 
column in the table entry for ``Owl, northern spotted'' under BIRDS to 
read ``17.41(c)'' instead of ``NA''.
    3. Section 17.41 is amended by adding paragraph (c) to read as 
follows:


Sec. 17.41  Special rules--birds.

* * * * *
    (c) Northern spotted owl (Strix occidentalis caurina).
    (1) Prohibitions. Except as provided in this paragraph (c)(1) or by 
a permit issued under paragraph (c)(2) of this section, the following 
prohibitions apply to the northern spotted owl.
    (i) Taking. Except as provided in this paragraph (c)(1)(i), no 
person shall take a northern spotted owl in Washington or California.
    (A) Taking pursuant to cooperative agreements. Any employee or 
agent of the Fish and Wildlife Service (Service), or of a conservation 
agency of the State of Washington or State of California that is 
carrying out a conservation program pursuant to the terms of a 
cooperative agreement with the Service in accordance with section 6(c) 
of the Endangered Species Act, who is designated by his/her agency for 
such purposes, may, when acting in the course of his/her official 
duties, take a northern spotted owl covered by an approved cooperative 
agreement to carry out a conservation program under the agreement in 
Washington or California.
    (B) Taking by designated officials. Any employee or agent of the 
Service, National Park Service, Bureau of Land Management, U.S. Forest 
Service, Washington Department of Wildlife, or California Department of 
Fish and Game, who is designated by his/her agency for such purposes, 
may, when acting in the course of his/her official duties, take a 
northern spotted owl in Washington or California if such action is 
necessary to:
    (1) Aid a sick, injured or orphaned owl;
    (2) Dispose of a dead owl; or
    (3) Salvage a dead owl which may be useful for scientific study: 
Provided, that any taking pursuant to paragraph (c)(1)(i)(B) of this 
section must be reported in writing to the U.S. Fish and Wildlife 
Service, Division of Law Enforcement, P.O. Box 19183, Washington, DC 
20036, within 5 days. The specimen may only be retained, disposed of or 
salvaged in accordance with directions from the Service.
    (C) Incidental Take on Tribal Lands. On Indian forest lands in 
Washington and California, as defined in 25 CFR 163.1, any person may, 
when acting in accordance with tribal forestry rules and regulations, 
take a northern spotted owl incidental to timber harvest activity if 
the harvest does not destroy or degrade the 70 acres of nesting, 
roosting and foraging habitat closest to an owl site center.
    (D) Spotted Owl Habitat Enhancement Agreement. Any person who has 
voluntarily entered into a Cooperative Habitat Enhancement Agreement 
(Agreement) with the Service for the purpose of restoring, enhancing or 
maintaining forestland habitat to aid in the conservation of the 
spotted owl may, pursuant to the terms of that Agreement, incidentally 
take spotted owls on the subject lands either during or after the 
period when the Agreement is in effect: Provided, that such Agreements 
shall only apply to parcels of land that are free of all incidental 
take restrictions for the spotted owl as of the date that such 
Agreements enter into force and effect, and that such Agreements must 
be of sufficient duration to aid in the conservation of the spotted 
owl.
    (E) Incidental Take in State of Washington. The provisions of this 
paragraph (c)(1)(i)(E) shall apply to the incidental take of northern 
spotted owls from timber harvest activity in the State of Washington.
    (1) Outside Special Emphasis Areas (SEA). Any person may take a 
northern spotted owl incidental to timber harvest activity outside an 
SEA if the harvest does not destroy or degrade the 70 acres of nesting, 
roosting and foraging habitat closest to an owl site center: Provided, 
that such incidental take is not authorized with regard to an owl whose 
site center is located within and along [[Page 9511]] the boundary of 
an SEA; or a Federal reserve or Congressionally reserved or 
Administratively withdrawn area which is otherwise located off the 
Olympic Peninsula.
    (2) Inside SEAs--Matrix and Adaptive Management Area authorization. 
Any person may take a northern spotted owl incidental to timber harvest 
activity within an SEA if the harvest is on non-Federal land surrounded 
by or located within Federal Matrix or Adaptive Management Area lands 
and complies with the final Federal harvest prescriptions or 
restrictions adopted for such lands: Provided, that this authorization 
shall not apply to any northern spotted owl whose site center is 
located within a Federal Reserve or a Congressionally reserved area or 
Administratively withdrawn area.
    (3) Inside SEAs--Small landowners. Any person who owns, on February 
17, 1995, no more than 80 acres of forestland within a given SEA, may 
take a northern spotted owl incidental to timber harvest activity 
within such 80 acres if the harvest does not destroy or degrade the 70 
acres of nesting, roosting and foraging habitat closest to an owl site 
center.
    (4) Inside SEAs--Local option conservation plans. (i) 
Authorization. Any person who owns on February 17, 1995 more than 80 
acres, but not more than 5000 acres, of forestland in a given SEA may 
take a northern spotted owl incidental to timber harvest activity 
conducted on such land in accordance with a Local Option Conservation 
Plan approved by the Service.
    (ii) Application. Each application for a Local Option Conservation 
Plan shall be submitted to the Service's State Supervisor, U.S. Fish 
and Wildlife Service, 3704 Griffin Lane SE, Suite 102, Olympia, 
Washington 98501, on an official application (Form 3-200) provided by 
the Service. Each application must include, as an attachment, a plan 
that contains a description of the area to be covered by the proposed 
plan; the size of the affected land ownership(s) and the intended 
duration of the plan; the number of affected spotted owls and the 
habitat condition in the area to be covered by the proposed plan, if 
known; the extent to which the plan will contribute to or be consistent 
with the owl conservation needs identified for the SEA affected by the 
plan; the extent to which the incidental take of spotted owls resulting 
from timber activities under the plan will be complementary with the 
goals of the Federal Forest Plan for the affected area; the extent to 
which the land is adjacent to, or interspersed within, Federal Matrix 
or Adaptive Management Area lands and a description of the final 
management prescriptions delineated for any such lands, if known; the 
measures to be taken to minimize and mitigate the impacts of incidental 
take of spotted owls; the impact of the plan on affected watershed(s); 
what commitments the landowner(s) will provide to ensure implementation 
or adequate funding for the plan; what procedures will be used to deal 
with any unforeseen circumstances which could result in significant 
adverse effects to spotted owls in the affected area; any additional 
measures the Service requires as being necessary or appropriate for the 
goals of the plan to be met, e.g., reporting and review requirements; 
and, where the State has implemented regulations for a local option 
conservation plan review process that complements or is consistent with 
this proposed rule, whether the State has certified the plan.
    (iii) Approval. After consideration of the information submitted 
with an application and received during a public comment period, the 
Service shall approve a Local Option Conservation Plan if it finds that 
any anticipated taking will be incidental; the applicant will minimize 
and mitigate the impact of such takings; the local option conservation 
plan contributes to or is consistent with the conservation needs of the 
northern spotted owl in the affected SEA and will not result in the 
incidental take of a spotted owl deemed essential for providing 
demographic support for a Federal reserve established under the Federal 
Forest Plan as necessary to achieve conservation objectives; the 
applicant will provide adequate assurances or funding for the 
implementation of the local option plan; and the taking will not 
appreciably reduce the likelihood of survival and recovery of any 
listed species in the wild.
    (5) Safe Harbor Authorization. Any person may take a northern 
spotted owl incidental to timber harvest activity within an SEA if the 
harvest does not destroy or degrade the 70 acres of nesting, roosting 
and foraging habitat closest to an owl site center, and does not 
reduce, to less than 40 percent, the amount of nesting, roosting and 
foraging habitat within the median annual home range of the affected 
owl.
    (6) Sunset provision. The Service shall periodically review and 
evaluate the effectiveness of the conservation measures and program for 
the spotted owl for each SEA. If the review indicates that the 
conservation goals for an SEA have been effectively achieved, the 
Service shall propose regulations to modify or withdraw the incidental 
take prohibitions in this paragraph as appropriate with respect to such 
SEA.
    (F) Incidental Take in State of California. The provisions of this 
paragraph (c)(1)(i)(F) shall apply to the incidental take of northern 
spotted owls from timber harvest activity in the State of California.
    (1) Klamath Province Relief Area. Any person may take a northern 
spotted owl incidental to timber harvest activity in the Klamath 
Province Relief Area (Figure 1 to Sec. 17.41(c)) if the harvest does 
not destroy or degrade the 70 acres of nesting, roosting and foraging 
habitat closest to an owl site center: Provided, that such incidental 
take is not authorized with regard to an owl whose site center is 
located within and along the boundary of a Federal reserve or a 
Congressionally reserved or Administratively withdrawn area.
    (2) Potential California Conservation Planning Areas. (i) Matrix 
and Adaptive Management Area authorization. Any person may take a 
northern spotted owl incidental to timber harvest activity within a 
potential California Conservation Planning Area (CCPA) if the harvest 
is on non-Federal land surrounded by or located within Federal Matrix 
or Adaptive Management Area lands and complies with the final Federal 
harvest prescriptions or restrictions adopted for such lands: Provided, 
that this authorization shall not apply to any northern spotted owl 
whose site center is located within a Federal reserve or a 
Congressionally reserved or Administratively withdrawn area.
    (ii) Small landowners. Any person who owns, on February 17, 1995, 
no more than 80 acres of forestland within a given potential CCPA may 
take a northern spotted owl incidental to timber harvest activity 
within such 80 acres if the harvest does not destroy or degrade the 70 
acres of nesting, roosting and foraging habitat closest to an owl site 
center.
    (iii) Natural Communities Conservation Plans. Any person may take a 
northern spotted owl incidental to timber harvest activity within a 
potential CCPA if the harvest is conducted in accordance with a Natural 
Communities Conservation Plan (Plan) for spotted owls prepared by the 
State of California and approved by the Service. The Service shall 
approve any such Plan if it finds that the Plan is consistent with 
achieving the conservation goals for the spotted owl in the affected 
CCPA, is complementary to the Federal Forest Plan and is consistent 
with the criteria of section 10(a)(2) of the Endangered Species Act (16 
USC 1539(a)(2)). [[Page 9512]] 
    (iv) Safe Harbor Authorization. Any person may take northern 
spotted owls incidental to timber harvest activity within a potential 
CCPA if the harvest does not destroy or degrade the 70 acres of 
nesting, roosting and foraging habitat closest to an owl site center, 
and does not reduce, to less than 40 percent, the amount of nesting, 
roosting and foraging habitat within the median annual home range of 
the affected owl.
     (v) Sunset provision. The Service shall periodically review and 
evaluate the effectiveness of the conservation measures and program for 
the spotted owl established for each CCPA. If the review indicates that 
the conservation goals for a CCPA have been effectively achieved, the 
Service shall propose regulations to modify or withdraw the incidental 
take prohibitions of this paragraph, as appropriate, with respect to 
such CCPA.
     (ii) Unlawfully taken owls. No person shall possess, sell, 
deliver, carry, transport, or ship, any northern spotted owl taken in 
violation of paragraph (c)(1)(i) of this section: Provided, that 
Federal and State law enforcement officers may possess, deliver, carry, 
transport or ship any endangered wildlife taken in violation of the Act 
as necessary in performing their official duties.
    (iii) Commercial transportation. No person shall deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of a commercial activity any northern spotted owl.
    (iv) Sales. No person shall sell or offer for sale in interstate or 
foreign commerce any northern spotted owl.
    (v) Importation or exportation. No person shall import into the 
United States, or export from the United States, any northern spotted 
owl.
    (2) Permits. In accordance with the provisions of Sec. 17.32 of 
this Part, permits are available to authorize otherwise prohibited 
activities involving the northern spotted owl in Washington and 
California.
    (3) Definitions. As used in this paragraph (c):
    (i) Administratively withdrawn area means lands that are excluded 
from planned or programmed timber harvest under agency planning 
documents or the preferred alternative for draft agency planning 
documents.
    (ii) Adaptive management area means the 10 landscape units that 
were adopted in the April 13, 1994 Record of Decision for Amendments to 
U.S. Forest Service and Bureau of Land Management Planning Documents 
within the Range of the Northern Spotted Owl (USDA/USDI 1994) for 
development and testing of technical and social approaches to achieving 
specific ecological, economic, and other social objectives.
    (iii) Congressionally reserved area means lands with Congressional 
designations that preclude timber harvest, as well as other Federal 
lands not administered by the Forest Service or Bureau of Land 
Management, including National Parks and Monuments, Wild and Scenic 
Rivers, National Wildlife Refuges, and military reservations.
    (iv) Federal Forest Plan means the Federal forest management 
strategies, standards and guidelines adopted in the April 13, 1994, 
Record of Decision for the Final Supplemental Environmental Impact 
Statement for 19 National Forests and 7 Bureau of Land Management 
Districts located within the range of the northern spotted owl.
    (v) Federal Matrix Land means those Federal lands generally 
available for programmed timber harvest which are outside of the 
Congressionally reserved and Administratively withdrawn areas, Federal 
reserves and Adaptive Management Areas as delineated in the Standards 
and Guidelines adopted in the April 13, 1994, Record of Decision.
    (vi) Federal Reserve means those Federal lands delineated in the 
April 13, 1994, Record of Decision on which programmed timber harvest 
is not allowed and is otherwise severely limited. There are two types 
of reserves: late-successional reserves, which are designed to produce 
contiguous blocks of older forest stands; and riparian reserves, which 
consist of protected strips along the banks of rivers, streams, lakes, 
and wetlands that act as a buffer between these water bodies and areas 
where timber harvesting is allowed.
    (vii) Home range means the area a spotted owl traverses in the 
course of normal activities in fulfilling its biological needs during 
the course of its life span.
    (viii) Nesting, roosting and foraging habitat or suitable habitat 
means those areas with the following vegetative structure and 
composition necessary to assure successful nesting, roosting, and 
foraging activities for a territorial single or breeding pair of 
spotted owls:
    (A) In the California provinces, suitable habitat consists, as a 
general matter, of coniferous or mixed coniferous/hardwood forests with 
multiple canopy layers; multiple overstory conifers greater than 16 
inches in diameter at breast height (dbh); and total canopy closure 
among dominant, co-dominant, and understory trees of greater than 60 
percent;
    (B) In the Western Washington Lowlands province, the Western 
Washington Cascades province, and the Washington Olympic Peninsula 
province, suitable habitat consists, as a general matter, of coniferous 
or mixed coniferous/hardwood forests with multiple canopy layers; 
multiple large overstory conifers greater than 20 inches dbh, and total 
canopy closure among dominant, co-dominant and understory species of 
greater than 60 percent;
    (C) In the Eastern Washington Cascades province, suitable habitat 
consists, as a general matter, of coniferous forests with stands that 
contain greater than 20 percent fir (Douglas fir, Grand fir) and/or 
hemlock trees; multiple canopy layers of multiple large overstory 
conifers greater than 12 inches dbh; and total canopy closure among 
dominant, co-dominant and understory species of greater than 50 
percent.
    (ix) Northern spotted owl, spotted owl, or owl means any northern 
spotted owl (Strix occidentalis caurina), alive or dead, and any part, 
egg, nest, or product thereof.
    (x) Person has the meaning provided in 16 USC 1532(13).
    (xi) Potential California Conservation Planning Area (CCPA) means 
any of the following four areas in the State of California (Figure 1 to 
Sec. 17.41(c)):
     (A) California Coastal Area (Humboldt Meridian and Baseline) 
(Figure 2 to Sec. 17.41(c)) Beginning at the intersection of the 
California-Oregon State Line and the shoreline of the Pacific Ocean, 
then east along the California-Oregon State Line, then south along the 
east border of S33 T19NR01E, S04 T18NR01E, S09 T18NR01E, S16 T18NR01E, 
S21 T18NR01E, S28 T18NR01E, S33 T18NR01E, then west along the south 
border of S33 T18NR01E, then south along the east border of S05 
T17NR01E, S06 T17NR01E, then east along the north border of S16 
T17NR01E, then south along the east border of S16 T17NR01E, S21 
T17NR01E, S28 T17NR01E, S33 T17NR01E, and S04 T16NR01E, then east along 
the north border of S10 T16NR01E, then south along the east border of 
S10 T16NR01E, S15 T16NR01E, then east along the north border of S23 
T16NR01E, then south along the east border of S23 T16NR01E and S26 
T16NR01E, then east along the north border of S36 T16NR01E, then south 
along the east border of S36 T16NR01E, then east along the north border 
of S06 T15NR02E, then south along the east border of S06 T15NR02E, S07 
T15NR02E, S18 T15NR02E, then east along the north border of S20 
T15NR02E, S21 T15NR02E, S22 T15NR02E, S23 T15NR02E, then north along 
the west border of S13 T15NR02E, [[Page 9513]] S12 T15NR02E, then east 
along the north border of S12 T15NR02E, S07 T15NR03E, S08 T15NR03E, 
then south along the east border of S08 T15NR03E, S17 T15NR03E, then 
west along the south border of S17 T15NR03E, then south along the east 
border of S19 T15NR03E, S30 T15NR03E, S31 T15NR03E, then west along the 
south border of S31 T15NR03E, then south along the east border of 
T14NR02E, T13NR02, and T12NR02E, then east along the north border of 
T12NR03E, then south along the east border of T12NR03E and T11NR03E, 
then east along the north border of S06 T10NR04E, then south along the 
east border of S06 T10NR04E, S07 T10NR04E, S18 T10NR04E, S19 T10NR04E, 
S30 T10NR04E, S31 T10NR04E, S06 T09NR04E, S07 T09NR04E, S18 T09NR04E, 
then southwest along the north border of the Hoopa Valley Indian 
Reservation, then southeast along the west border of the Hoopa Valley 
Indian Reservation, then south along the east border of S17 T07NR04E, 
S20 T07NR04E, S29 T07NR04E, S32 T07NR04E, S05 T06NR04E, S08 T06NR04E, 
S17 T06NR04E, S20 T06NR04E, S29 T06NR04E, S32 T06NR04E, then east along 
the north border of S04 T05NR04E, then south along the east border of 
S04 T05NR04E, then east along the north border of S10 T05NR04E, then 
south along the east border of S10 T05NR04E, S15 T05NR04E, S22 
T05NR04E, then east along the north border of S26 T05NR04E, S25 
T05NR04E, then south along the east border of T05NR04E and T04NR04E, 
then east along the north border of S31 T04NR05E, then south along the 
east border of S31 T04NR05E, S06 T3NR05E, S07 T3NR05E, S18 T3NR05E, 
then east along the north border of S20 T03NR05E, S21 T03NR05E, then 
south along the east border of S21 T3NR05E, S28 T3NR05E, S33 T3NR05E, 
S04 T02NR05E, S09 T02NR05E, S16 T02NR05E, then east along the north 
border of S22 T02NR05E, then south along the east border of S22 
T02NR05E, then east along the north border of S26 T02NR05E, S25 
T02NR05E, then south along the east border of T02NR05E, then east along 
the north border of T01NR06E, then south along the east border of S03 
T01NR06E, S10 T01NR06E, S15 T01NR06E, S22 T01NR06E, then east along the 
north border of S26 T01NR06E, then south along the east border of S26 
T01NR06E, then east along the north border of S36 T01NR06e, S31 
T01NR07E, then north along the east border of S29 T01NR07E, then east 
along the north border of S29 T01NR07E, then south along the east 
border of S29 T01NR07E, S32 T01NR07E, then west along the south border 
of T01NR07E, then south along the east border of T01SR06E, then west 
along the south border of S24 T01SR06E, S23 T01SR06E, S22 T01SR06E, S21 
T01SR06E, S20 T01SR06E, S19 T01SR06E, S24 T01SR05E, S23 T01SR05E, then 
south along the east border of S27 T01SR05E, S34 T01SR05E, then east 
along the north border of S02 T02SR05E, then south along the east 
border of S02 T02SR05E, S11 T02SR05E, S14 T02SR05E, then east along the 
north border of S24 T02SR05E, then south along the east border of 
T02SR05E, then east along the north border of S31 T02SR06E, then south 
along the east border of S31 T02SR06E, then east along the north border 
of S06 T03SR06E, S05 T03SR06E, S04 T03SR06E, S03 T03SR06E, S02 
T03SR06E, S01 T03SR06E, then south along the east border of T03SR06E, 
then west along Ruth Zenia Road, Alderpoint Bluff Road, Zenia Bluff 
Road, Alder Point Road, then south along Harris Road, Bell Springs 
Road, and U.S. Highway 101, then west along Sebatopol Road, Bodega 
Highway, and California Highway 1, then north along California Highway 
1, then west along Salmon Creek, then north along the shoreline of the 
Pacific Ocean to the point of beginning.
    (B) Hardwood Region (Mt Diablo Meridian and Baseline Except Where 
Township Designation Is Followed by * Which Indicates Humboldt Meridian 
and Baseline) (Figure 2 to Sec. 17.41(c)) Beginning at the Intersection 
of Ruth Zenia Road and the east border of T03SR06E*, then south along 
the east border of T03SR06E*, then east along the north border of 
T04SR07E* and T04SR08E*, then south along the east border of T04SR08E* 
and T05SR08E*,/****Meridian Change/ then east along the north border of 
T05SR08E* and T25NR12W, then south along the east border of T25NR12W, 
then east along the north border of S18 T25NR11W, S17 T25NR11W, S16 
T25NR11W, then south along the east border of S16 T25NR11W, S21 
T25NR11W, then west along the south border of S21 T25NR11W, S20 
T25NR11W, then south along the east border of S30 T25NR11W, then west 
along the south border of S30 T25NR11W, then south along the east 
border of T25NR12W, S01 T24NR12W, and S12 T24NR12W, then east and south 
along the border of the Trinity National Forest, then east along the 
north border of S32 T24NR11W, then south along the east border of S32 
T24NR11W, then east along the north border of S04 T23NR11W, then south 
along the east border of S04 T23NR11W, S09 T23NR11W, S16 T23NR11W, then 
east along the north border of S22 T23NR11W, S23 T23NR11W, S24 
T23NR11W, S19 T23NR10W, then south along the east border of S19 
T23NR10W, S30 T23NR10W, S31 T23NR10W, then east along California State 
Highway 162, then south along the eastern border of the East Cascades 
Province, then north along the shoreline of the Pacific Ocean, then 
east along Salmon Creek, then south along California Highway 1, then 
east along Bodega Highway and Sebastopol Road, then north along U.S. 
Highway 101, Bell Springs Road, and Harris Road, then east along Alder 
Point Road, Zenia Bluff Road, Alderpoint Bluff Road and Ruth Zenia Road 
to the point of beginning.
    (C) Wells Mountain-Bully Choop Area (Mt. Diablo Meridian and 
Baseline) (Figure 3 to Sec. 17.41(c))
    Beginning at the northwest corner of S04 T34NR11W, then east along 
the north border of T34NR11W, then south along the east border of S03 
T34NR11W and S10 T34NR11W, then east along the north border of S14 
T34NR11W, S13 T34NR11W, S18 T34NR10W, then north along the east border 
of S08 T34NR10W, then east along the north border of S08 T34NR10W, then 
south along the east border of S08 T34NR10W, S17 T34NR10W, S20 
T34NR10W, S29 T34NR10W, then east along the north border of S33 
T34NR10W, then south along the east border of S33 T34NR10W, then east 
along the north border of S03 T34NR10W, then north along the west 
border of S35 T34NR10W, S26 T34NR10W, S23 T34NR10W, then east along the 
north border of S23 T34NR10W, then north along the west border of S13 
T34NR10W, then east along the north border of S13 T34NR10W, S18 
T34NR09W, S17 T34NR09W, and S16 T34NR09W, then north along California 
Highway 3, then east along the border of the Whiskeytown-Shasta-Trinity 
National Recreation Area, then south along the east border of S03 
T34NR09W, then east along the north border of S11 T34NR09W, S12 
T34NR09W, then south along the east border of T34NR09W, then east along 
the north border of S19 T34NR08W, S20 T34NR08W, then south along the 
east border of S20 T34NR08W, S29 T34NR08W, S32 T34NR08W, then west 
along the south border of S32 T34NR08W, then south along the east 
border of S06 T33NR08W, then east along the north border of S08 
T33NR08W and S09 T33NR08W, then north along the west border of S03 
T33NR08W, then east along the north [[Page 9514]] border of T33NR08W 
and T33NR07W, then south along Trinity Mountain Road, then east along 
California Highway 299, then south along the east border of S26 
T32NR06W, S35 T32NR06W, S02 T31NR06W, then west along the south border 
of the southeast of S02 T31NR06W, then south along the east border of 
the northwest of S11 T31NR06W, then west along the south border of the 
northwest of S11 T31NR06W and northeast S10 of T31NR06W, then south 
along Mule Town Road, then west along the boundary of the Klamath 
Province, then north along the west border of the northeast of S20 
T30NR09W, then west along the Shasta-Trinity County Line, then north 
along the west border of T30NR09W, then east along the south border of 
T31NR09W and T31NR10W, then south along the east border of S05 
T30NR10W, then east along the south border of S05 T30NR10W, then north 
along the west border of S05 T30NR10W, then west along the south border 
of T31NR10W, then north along the west border of T31NR10W and T32NR10W, 
then east along California Highway 3, then west along California 
Highway 299, then north along the west border of S28 T34NR11W, S21 
T34NR11W, S16 T34NR11W, S09 T34NR11W, S04 T34NR11W to the point of 
beginning.
    (D) California Cascades, (Mt Diablo Meridian and Baseline) (Figure 
3 to Sec. 17.41(c))
    Beginning at the Intersection of Interstate Highway 5 and the 
California-Oregon State Line, then east along the California-Oregon 
State Line, then south along the Eastern Boundary of the California 
Cascades Province, then north along Mule Town Road, then east along the 
north border of the southeast of S10 T31NR06W and southwest of S11 
T31NR06W, then north along the west border of the northeast of S11 
T31NR06W, then east along the north border of the northeast of S11 
T31NR06W, then north along the west border of S01 T31NR06W, S36 
T32NR06W, and S25 T32NR06W, then west along California Highway 299, 
then north along Trinity Mountain Road, then east along the south 
border of T34NR07W and T34NR08W, then south along the east border of 
S04 T33NR08W, then west along the south border of S04 T33NR08W and S05 
T33NR08W, then north along the west border of S05 T33NR08W, then east 
along the north border of S05 T33NR08W, then north along the west 
border of S33 T34NR08W, S28 T34NR08W, S21 T34NR08W, then west along the 
south border of S17 T34NR08W, S18 T34NR08W, then north along the west 
border of S18 T34NR08W and S07 T34NR08W, then east along the south 
border of S01 T34NR09W, S02 T34NR09W, then north along the west border 
of the S02 T34NR09W, then west along the border of the Whiskeytown-
Shasta-Trinity National Recreation Area then south along California 
Highway 3, then west along the south border of S09 T34NR09W, S08 
T34NR09W, and S07 T34NR09W, then north along the west border of S07 
T34NR09W, then east along the north border of S07 T34NR09W, then north 
along the west border of S05 T34NR09W, S32 T35NR09W, then west along 
the south border of S30 T35NR09W, then north along the west border of 
T35NR09W, then east along the north border of S19 T35NR09W, then north 
along the west border of S17 T35NR09W, then east along the north border 
of S17 T35NR09W, S16 T35NR09W, S15 T35NR09W, then north along the west 
border of S11 T35NR09W, then east along the north border of S11 
T35NR09W, then north along the west border of S01 T35NR09W, then east 
along the north border of T35NR09W and T35NR08W, then north along the 
west border of S32 T36NR08W and S29 T36NR08W, then east along the north 
border of S29 T36NR08W, then north along the west border of S21 
T36NR08W, S16 T36NR08W, S09 T36NR08W, S04 T36NR08W, then east along the 
north border of T36NR08W, then north along the west border of S34 
T37NR08W, S27 T37NR08W, and S22 T37NR08W, then west along the south 
border of S16 T37NR08W, S17 T37NR08W, then north along the west border 
of S17 T37NR08W and S08 T37NR08W, then east along the north border of 
S08 T37NR08W, then north along the west border of S04 T37NR08W, then 
east along the north border of T37NR08W, then north along the west 
border of S36 T38NR08W, then east along the north border of S36 
T38NR08W, then north along the west border of S30 T38NR07W, then west 
along the south border of S24 T38NR08W, then north along the west 
border of S24 T38NR08W and S13 T38NR08W, then east along the north 
border of S13 T38NR08W, then north along the west border of S07 
T38NR07W, then east along the north border of S07 T38NR07W, S08 
T38NR07W, S09 T38NR07W, then north along the west border of S03 
T38NR07W, S34 T39NR07W, S27 T39NR07W, S22 T39NR07W, and S15 T39NR07W, 
then west and north along California Highway 3 and Interstate Highway 5 
to the point of beginning.
    (xii) Province or physiographic province means a geographic area 
having a similar set of biological and physical characteristics and 
processes due to effects of climate and geology which result in 
patterns of soils and broad-scale plant communities. Habitat patterns, 
wildlife distributions, and historical land use patterns may differ 
significantly from those of adjacent provinces. The seven northern 
spotted owl provinces in the States of Washington and California are 
the Olympic Peninsula Province, the Western Washington Lowlands 
Province, the Western and Eastern Washington Cascades Provinces, and 
the California Coastal, Klamath and Cascades Provinces (Figure 4 to 
Sec. 17.41(c)).
    (xiii) Record of Decision (ROD) means the April 13, 1994, Record of 
Decision for Amendments to Forest Service and Bureau of Land Management 
Planning Documents within the Range of the Northern Spotted Owl (USDA/
USDI 1994).
    (xiv) Special Emphasis Area (SEA) means any of the following six 
areas (Figure 5 to Sec. 17.41(c)) in the State of Washington 
(references are in relation to the Willamette Meridian and baseline):
    (A) Columbia River Gorge/White Salmon (Figure 6 to Sec. 17.41(c))
    (1) Columbia River Gorge Segment (Figure 6 to Sec. 17.41(c)) 
Beginning at the northwest corner of T03NR05E, then east along the 
north border of T03NR05E, T03NR06E, T03NR07E, T03NR07.5E, and T03NR08E, 
then south along the east border of T03NR08E, then west along the north 
Shore of the Columbia River, then north along the west border of 
T01NR05E, T02NR05E, and T03NR05E to the Point of Beginning.
    (2) White Salmon Segment (Figure 6 to Sec. 17.41(c)) Beginning at 
the northwest corner of T06NR10E, then east Along the north border of 
T06NR10E, then north along the west border of T07NR11E, then east along 
the north border of S19 T07NR11E, S20 T07NR11E, S21 T07NR11E, then 
south along the east border of S21 T07NR11E, S28 T07NR11E, then south 
along the west border of the Yakama Indian Reservation, then south 
along the east border of T05NR11E, T04NR11E, then southwest along 
Rattle Snake Creek, then south along the east border of T04NR10E and 
T03NR10E, then west along the north Shore of the Columbia River, then 
north along the west border of T03NR09E, then east along the north 
border of T03NR09E, then north along the west border of T04NR10E, 
T05NR10E, and T06NR10E to the point of beginning. [[Page 9515]] 
    (B) Siouxon Creek (Figure 7 to Sec. 17.41(c)) Beginning at the 
intersection of the south border of S16 T06NR04E and the Cowlitz-Clark 
County line, then north and east along the Cowlitz-Clark County line, 
then south along the west border of S31 T07NR05E, then east along the 
north border of the SW of NW, SE of NW, and SW of NE S31 T07NR05E, then 
north along the west border of the NE of NE S31 T07NR05E, then east 
along the Lewis River, then south along the east border of S30 
T07NR05E, then east along the north border of S32 T07NR05E, then north 
along the west border of the SE of SW S29 T07NR05E, then east along the 
Lewis River, then south along the east border of the SW of SE S29 
T07NR05E, then east along the north border of S32 T07NR05E, then north 
along the west border of S28 T07NR05E, then east along the north border 
of S28 T07NR05E, then south along the east border of the NE of NE S28 
T07NR05E, then west along the south border of the NE of NE S28 
T07NR05E, then south along the east border of the SW of NE S28 
T07NR05E, then east along the north border of the NE of SE S28 
T07NR05E, then south along the east border S28 T07NR05E, then east 
along the channel of Swift Reservoir and the Lewis River, then south 
and west along the Gifford Pinchot National Forest boundary, then south 
along the Clark-Skamania County line, then west along Canyon Creek, 
then north along the west border of S03 T05NR04E and S34 T06NR04E, then 
west along the south border of NE of SE, NW of SE, and NE of SW S33 to 
6NR04E, then north along the west border of the NE of SW S33 T06NR04E, 
then east along the north border of the NE of SW S33 T06NR04E, then 
north along the west border of the NE S33 T06NR04E and SE S28 T06NR04E, 
then east along the north border of the SE of S28 T06NR04E, then north 
along the west border of the SE of NE and NE of NE S28 T06NR04E, then 
east along the north border of S28 T06NR04E, then north along the west 
border S22 T06NR04E, then west along the south border of S16 T06NR04E 
to the point of beginning.
    (C) Mineral Block (Figure 8 to Sec. 17.41(c)) Beginning at the 
northwest corner of T15NR03E, then east along the north border of 
T15NR03E, T15NR04E, T15NR05E and T15NR06E, then south along the east 
border of T15NR06E and T14NR06E, then west along the south border of 
T14NR06E, then south along the east border of T13NR06E and T12NR06E, 
then west along the south border of S24, S23, S23, S21, S20, and S19 
T12NR06E, then south along the east border of S24 T12NR05E, then west 
along the south border of S24, S23, S22, S21, S20, and S19 T12NR05E, 
then north along the west border of T12NR05E, then northwest along U.S. 
Highway 12, then west along the Tilton River, then north along the west 
border of T13NR03E, T14NR03E, and T15NR03E, to the point of beginning.
    (D) I-90 Corridor (Figure 9 to Sec. 17.41(c)) Beginning at the 
northwest corner of T22NR09E, then east along the north border of 
T22NR09E and T22NR10E, then north along the west border of T22NR11E, 
then east along the north border of T22NR11E, then north along the west 
border of T22NR12E, then east along the north border of T22NR12E, 
T22NR13E, T22NR14E, T22NR15E, T22NR16E, and T22NR17E, then north along 
the west border of S34 T23NR17E, S27 T23NR17E, S22 T23NR17E, S15 
T23NR17E, S10 T23NR17E, S03 T23NR17E, then east along the north border 
of S03 T23NR17E, then north along the west border of S34 T24NR17E, S27 
T24NR17E, and S22 TNR17E, then east along the north border of S22 
T24NR17E, S23 T24NR17E, S24 T24NR17E, S19 T24NR18E, S20 T24NR18E, S21 
T24NR18E, then south along the east border of S21 T24NR18E, S28 
T24NR18E, S33 T24NR18E, then west along the south border of S33 
T24NR18E, then south along the east border of S04 T23NR18E, S09 
T23NR18E, S16 T23NR18E, S21 T23NR18E, S8 T23NR18E, S33 T23NR18E, then 
east along the north border of S04 T22NR18E, then south along the east 
border of S04 T22NR18E, S09 T22NR18E, S16 T22NR18E, S21 T22NR18E, S28 
T22NR18E, S33 T22NR18E, then west along the south border of T22NR18E, 
T2NR17E, then south along the east border of T21NR16E, then west along 
the south border of T21NR16E, then south along the east border of 
T20NR16E, then west along the south border of S13 T20NR16E, S14 
T20NR16E, S15 T20NR16E, S16 T20NR16E, S17 T20NR16E, S18 T20NR16E, then 
south along the east border of T20NR15E, T19NR15E, then east along the 
north border of T18NR15E, then south along the east border of T18NR15E, 
T17NR15E, then west along the south border of T17NR15E, then north 
along the west border of T17NR15E, T18NR15E, then west along the south 
border of T19NR15E, T19NR14E, T19NR13E, T19NR12E, T19NR11E, T19NR10E, 
T19NR09E, T19NR08E, then north along the west border of T19NR08E, then 
east along the north border of T19NR08E, then north along the west 
border of T20NR09E, T21NR09E, and T22NR09E to the point of beginning.
    (E) Finney Block (Figure 10 to Sec. 17.41(c)) Beginning at the 
northwest corner of T36NR07E, then east along the north border of 
T36NR07E, T36NR08E and T36NR09E, then south along the east border of 
T36NR09E, then east along the north border of T35NR10E and T35NR11E, 
then south along the east border of T35NR11E, then west along the south 
border of T35NR11E, then south along the east border of T34NR10E, 
T33NR10E, T32NR10E, then west along the south border of T32NR10E, 
T32NR09E, T32NR08E, and T32NR07E, then north along the west border of 
S34 T32NR07E, then west along the south border of the southeast of the 
northeast quarter of S34 T32NR07E, then north along the west border of 
the southeast of the northeast quarter of S34 T32NR07E, then west along 
the south border of the northwest of the northeast quarter of S34 
T32NR07E, northeast quarter of the northwest quarter of S34 T32NR07E, 
northwest quarter of the northwest quarter of S34 T32NR07E, and 
northeast quarter of the northeast quarter of S32 T32NR07E, then north 
along the west border of the northwest quarter of the northwest quarter 
of S32 T32NR07E, then west along south border of S29 T32NR07E, S30 
T32NR07E, then south along the east border of the northwest of the 
northeast quarter, the southwest of the northeast quarter, the 
northwest of the southeast quarter, and the southwest of the southeast 
quarter of S31 of T32NR07E, then west along the south border of 
T32NR07E, then north along the west border of T32NR07E, T33NR07E, 
T34NR07E, T35NR07E, and T36NR07E to the point of beginning.
    (F) Hoh/Clearwater (Olympic Peninsula) (Figure 11 to Sec. 17.41(c)) 
(1) Hoh/Clearwater--North.
    Beginning at the Intersection of the Olympic National Park 
Boundary, and the north border of T30NR15W, then east along the north 
border of T30NR15W, T30NR14W, T30NR13W, then south along the Olympic 
National Forest Boundary, then east along the north border of the 
southwest quarter of the southwest quarter of S23 T29NR13W, then south 
along the east border of the southwest quarter of the southwest quarter 
of S23 T29NR13W, then west along the south border of the southwest 
quarter of the southwest quarter of S23 T29NR13W, then south along the 
east border S27 T29NR13W, then east along the north border of the 
southwest quarter of the southwest quarter of S26 T29NR13W, the 
southeast quarter of the southwest quarter of S26 
[[Page 9516]] T29NR13W, and the southwest quarter of the southeast 
quarter of S26 T29NR13W, then south along the east border of the 
southwest quarter of the southeast quarter of S26 T29NR13W, then east 
along the north border of S35 T29NR13W, then south along the east 
border of S35 T29NR13W, then east along the north border of the 
southwest quarter of the northwest quarter of S36 T29NR13W, the 
southeast quarter of the northwest quarter of S36 T29NR13W, the 
southwest quarter of the northeast quarter of S36 T29NR13W, and the 
southeast quarter of the northeast quarter of S36 T29NR13W, then south 
along the east border of T29NR13W and T28NR13W, then east along the 
north border of T27NR12W, then south along the Olympic National Park 
Boundary, then west along the south border of S20 T25NR10W and S19 
T25NR10W, then south along the east border of S25 T25NR11W and S36 
T25NR11W, then east along the north border of T24NR11W, then south and 
west along the Olympic National Park Boundary, then west along the 
north border of the Quinalt Indian Reservation, then north along the 
Olympic National Park Boundary to the point of beginning.
    (2) Hoh/Clearwater--South. Beginning at the Intersection of U.S. 
Highway 101 and the Queets River Road in S34 T24N R12W, then north 
along the Queets River Road, then south along the east border of S34 
T24NR12W, then east along the Olympic National Forest boundary, then 
south along the east border of T24NR11W and S01 T23NR11W, then east and 
south along the border of the Quinalt Indian Reservation, then west 
along U.S. Highway 101 to the point of beginning.
    (xv) Site center means the actual nest tree of a pair of spotted 
owls or the primary roost for a non-nesting pair or territorial single.
    (xvi) Timber harvest activity or harvest means any activity which 
results in the harvest or felling of trees comprising the suitable 
habitat of a northern spotted owl.
    (4) Information Collection. The collection of information 
requirements contained in Sec. 17.41(c) have been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1018-0022. This information is being 
collected to provide information necessary to evaluate permit 
applications and make decisions, according to criteria established in 
various Federal wildlife and plant conservation statutes and 
regulations, on the issuance or denial of permits. Response is required 
to obtain or retain a permit. Public burden for this collection of 
information is estimated to vary from 15 minutes to 4 hours per 
response, with an average of 1.028 hours per response, including the 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding this burden or 
any other aspect of this collection of information, including 
suggestions for reducing the burden, to the Service Information 
Collection Clearance Office, MS-224 ARLSQ, Fish and Wildlife Service, 
Washington, DC 20240 and the Office of Management and Budget, Paperwork 
Reduction Project (1018-0022), Washington, DC 20503.

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    Dated: February 13, 1995.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-3922 Filed 2-16-95; 8:45 am]
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