Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Marbled Murrelet

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC33

Endangered and Threatened Wildlife and Plants; Proposed

Designation of Critical Habitat for the Marbled Murrelet

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to

designate critical habitat for the threatened marbled murrelet

(Brachyramphus marmoratus marmoratus) in Washington, Oregon, and

California under the Endangered Species Act, as amended (Act). The

marbled murrelet is a small seabird of the Alcidae family that forages

in the near-shore marine environment and nests in large trees in

coniferous forest along the coast.

Proposed critical habitat units are located on Federal lands. This

proposed critical habitat designation would result in additional

protection requirements under section 7 of the Act with regard to

activities that are funded, authorized, or carried out by Federal

agencies. Section 4 of the Act requires the Service to designate

critical habitat on the basis of the best scientific information

available and to consider the economic and other relevant impacts of

including particular areas in the designation.

DATES: Comments from all interested parties must be received by April

27, 1994. Public hearing requests must be received by March 14, 1994.

ADDRESSES: Comments and materials concerning this proposal should be

sent to the Assistant Regional Director, U.S. Fish and Wildlife

Service, Ecological Services, 911 Northeast 11th Avenue, Portland,

Oregon 97232. The complete file for this rule is available for public

inspection, by appointment, during normal business hours at the above

address.

FOR FURTHER INFORMATION CONTACT: Mr. Dale Hall, Assistant Regional

Director for Ecological Services, at the above address (503/231-6159).

SUPPLEMENTARY INFORMATION:

Previous Federal Action

On January 15, 1988, the U.S. Fish and Wildlife Service (Service)

received a petition to list the marbled murrelet (Brachyramphus

marmoratus marmoratus) in Washington, Oregon, and California as a

threatened species under the Endangered Species Act of 1973, as amended

(Act). On October 17, 1988 (53 FR 40479), the Service published a

finding that the petition had presented substantial information

indicating that the requested action may be warranted. Because of the

increased research effort and new information available, the status

review period was reopened, with the concurrence of the petitioners,

from March 5, 1990, through May 31, 1990 (55 FR 4913).

On June 20, 1991 (56 FR 28362), the Service published a proposal to

list the marbled murrelet in Washington, Oregon, and California as a

threatened species. The comment period was reopened for 30 days on

January 30, 1992 (57 FR 3804), to gather the most updated information

on the species. Following a court order by the U.S. District Court for

the Western District of Washington denying a 6-month extension, the

Service published the final rule listing the marbled murrelet in

Washington, Oregon, and California as a threatened species on October

1, 1992 (57 FR 45328).

On November 2, 1993, the U.S. District Court for the Western

District of Washington granted a motion by the plaintiffs in Marbled

Murrelet v. Babbitt to compel a proposed designation of critical

habitat. In the ruling, the court ordered the Secretary to propose

designating critical habitat for the marbled murrelet no later than

January 21, 1994, and to make a final designation of critical habitat

as soon as reasonably possible under applicable law.

Ecological Considerations

The marbled murrelet (Brachyramphus marmoratus) is a small seabird

of the Alcidae family. The North American subspecies (Brachyramphus

marmoratus marmoratus) ranges from the Aleutian Archipelago in Alaska

eastward to Cook Inlet, Kodiak Island, Kenai Peninsula, and Prince

William Sound, south along the coast through the Alexander Archipelago

of Alaska, British Columbia, Washington, and Oregon to central

California. Some wintering birds are found in southern California. A

separate subspecies (Brachyramphus marmoratus perdix) occurs in Asia.

Marbled murrelets spend the majority of their lives at sea, where

they feed primarily on small fish and invertebrates in near-shore

marine waters. Marbled murrelets nest inland, predominately in older,

large-limbed trees in dense forest. Marbled murrelets have been found

occasionally on rivers and inland lakes (Carter and Sealy 1986).

The marbled murrelet is a social species that is semi-colonial

around the breeding site. Two nests discovered in Washington during

1990 were located within 46 meters (150 feet) of each other (Hamer and

Cummins 1990), and detections of marbled murrelets exhibiting behaviors

associated with nesting activity are often aggregated.

Nesting occurs over an extended period from early April to late

September (Carter and Sealy 1987). Marbled murrelets have been observed

at some inland sites during all months of the year (Paton et al. 1987,

Naslund 1993). During the breeding period, adult marbled murrelets lay

a single egg in a tree containing structures suitable for nesting

(e.g., limbs at least 13 centimeters (cm) (5 inches) in diameter,

mistletoe infections, witches brooms, deformities). Both sexes incubate

the egg in alternating 24-hour shifts for approximately 30 days, and

the young fledge after an additional 28 days (Simons 1980, Hirsch et

al. 1981, Singer et al. 1991). Inland flights by adults feeding young

are made from ocean feeding areas to nest sites at all times of the

day, but most often at dusk and dawn (Hamer and Cummins 1991). Chicks

are fed at least once a day. The adults carry only one fish at a time

to the young (Carter and Sealy 1987; Hamer and Cummins 1991; Singer et

al. 1992; Nelson, Oregon Cooperative Wildlife Research Unit, pers.

comm. 1992). The young are altricial, but remain in the nest longer

than young of most other alcids. Before leaving the nest, the young

molt into a distinctive juvenile plumage. Fledglings fly directly from

the nest to the sea rather than exploring the forest environment first

(Hamer and Cummins 1991).

For the purpose of proposing critical habitat, the Service has

concentrated on two components of marbled murrelet habitat: (1) Nesting

habitat; and (2) habitat needed to support foraging. Forest stands with

conditions that will support nesting marbled murrelets are referred to

as ``suitable nesting habitat.''

Throughout the forested portion of the species' range, marbled

murrelets nest near the marine environment in forest stands containing

characteristics of older forests (Binford et al. 1975; Sealy and Carter

1984; Carter and Sealy 1987; Carter and Erickson 1988; Marshall 1988;

Paton and Ralph 1988; Nelson 1989; Burger, University of Victoria, in

litt. 1990; Hamer and Cummins 1990, 1991; Quinlan and Hughes 1990;

Kuletz 1991; Nelson in litt. 1991; Singer et al. 1991, 1992; Nelson

1992; Nelson et al. 1992).

Historically, nesting habitat for the marbled murrelet was widely

dispersed, particularly in the wetter portions of its range in

Washington, Oregon, and California. This habitat was generally found in

very large, contiguous blocks.

Currently, the threatened population of marbled murrelets nests in

most of the major types of coniferous forests in the western portions

of Washington, Oregon, and north-central California, wherever older

forests remain in close proximity to the coast. Habitat in the drier

parts of the listed species' range (portions of southern Oregon and

northern California) is less continuous, occurring naturally in a

mosaic pattern. Although marbled murrelet nesting habitat is somewhat

variable over the range of the species, some general habitat attributes

are common throughout its range, including nesting structure, canopy

closure, stand size, tree species, landscape condition, and distance

from the marine environment.

Individual tree attributes that provide conditions suitable for

nesting include branches at least 13 cm (5 inches) in diameter,

deformities (e.g., broken tops), mistletoe infections, witches brooms,

or other structures providing a platform for nesting (Carter and Sealy

1987; Hamer and Cummins 1990, 1991; Singer et al. 1991, 1992; Ralph et

al. 1993). These structures are typically found in old-growth and

mature stands, but may be found in a variety of stand types including

younger stands containing remnant large trees.

Sixty-one tree nests have been located in North America, including

35 in the range of the listed population (6 in Washington, 20 in

Oregon, and 9 in California) (Binford et al. 1975; Varoujean et al.

1989; Burger 1990; Quinlan and Hughes 1990; Hamer and Cummins 1990,

1991; Kuletz 1991; Singer et al. 1991, 1992; Nelson unpubl. data). All

nests in Washington, Oregon, and California were located in old-growth

trees that were greater than 81 cm (32 inches) diameter at breast

height (dbh). Most nests have been located on large or deformed

branches with a moss covering; however, a few nests have been located

on smaller branches, and some nests were situated on conifer needles or

sticks rather than moss.

Canopy closure over the nest site provides protection from

predation and weather. Such canopy closure may be provided by trees

adjacent to the nest tree and/or by the nest tree itself. Nests are

typically located high above ground and usually have good overhead

protection. Such locations allow easy access and provide shelter from

potential predators and weather.

Although a few nests have been located in relatively small stands,

most nests have been found in larger stands with sufficient internal

structure to minimize the risk of predation at the nest (i.e., minimize

habitat for species known to prey on marbled murrelets) and provide

suitable climatic conditions for nesting (Nelson in litt. 1992).

Marbled murrelets are more commonly encountered in larger stands of

older forests in California (greater than 202 hectares (500 acres))

than in smaller stands (less than 40 hectares (100 acres)). However,

marbled murrelets have been detected in smaller isolated stands in

Oregon, with one confirmed nest in a 3-hectare (8-acre) stand (Nelson

unpubl. data).

General landscape condition also may affect use of suitable nesting

habitat. In Washington, marbled murrelet detections increased when old-

growth/mature forests comprised over 30 percent of the landscape. Hamer

and Cummins (1990) found that detections of marbled murrelets decreased

in Washington when the percent of clearcut/meadow on the landscape

increased above 25 percent.

Nests have been located in stands dominated by coastal redwood

(Sequoia sempervirens), Douglas-fir (Pseudotsuga menziesii), mountain

hemlock (Tsuga mertensiana), Sitka spruce (Picea sitchensis), western

hemlock (Tsuga heterophylla), and western red-cedar (Thuja plicata)

(Binford et al. 1975; Quinlan and Hughes 1990; Hamer and Cummins 1991;

Singer et al. 1991, 1992; Nelson et al. in prep). The nests themselves

have been located in Douglas-fir, coastal redwood, western hemlock,

western red-cedar, and Sitka spruce trees. These species of trees have

growth forms that produce nesting opportunities and are susceptible to

damage (disease, breakage, wind damage) that may produce nesting

structure.

Critical habitat units should occur at a distance from the marine

environment consistent with the flight and energetic capabilities of

marbled murrelets. The farthest inland known occupied site is 84

kilometers (52 miles) in Washington. The farthest inland known

detections in Oregon and California are 61 and 56 kilometers (38 and 35

miles), respectively. Occupied sites are defined as forest stands where

marbled murrelets have been observed exhibiting behaviors indicative of

likely nesting activity.

Northwestern forests typically require 200 to 250 years to attain

the attributes necessary to support marbled murrelet nesting, though

characteristics of nesting habitat are sometimes developed in younger

redwood forests. Forests with old-age remnant trees remaining from

earlier stands may also develop into nesting habitat more quickly than

those without. These remnant attributes are products of fire, wind

storms, or previous logging operations that did not remove all of the

trees. Other factors that may affect the time required to develop

suitable nesting characteristics include site productivity and aspects

of the site microclimate.

It is difficult to locate actual nests for a species such as the

marbled murrelet, which may only show activity near the nest once per

day and under low light conditions. Therefore, identification of

occupied sites and suitable habitat are the best indicators of

potential nest sites. Active nests, egg shell fragments, or young found

on the forest floor, birds seen flying through the forest beneath the

canopy or landing in trees, birds seen circling above the canopy, birds

heard calling from a stationary perch, or large numbers of birds heard

calling from within and around a stand are all strong indicators of

occupied habitat. Their semi-colonial nature makes marbled murrelets

easier to detect at high-use sites, though some areas (e.g., highly

fragmented habitat with small stand size) support low numbers of

reproducing pairs, making detection difficult.

Breeding populations of marbled murrelets are not distributed

continuously throughout the species' range. In California, there are

three separate areas where marbled murrelets concentrate at sea,

corresponding to the three largest remaining blocks of coastal old-

growth forest inland. These are separated by areas of little or no

habitat where few marbled murrelets are found at sea.

A large break in the breeding distribution is located at the

southern portion of the range in California, where approximately 480

kilometers (300 miles) separate the southern breeding population in San

Mateo County from the next known occupied site to the north in Humboldt

County. This reach contained marbled murrelets prior to extensive

logging in the area (Paton and Ralph 1988). Another distribution gap is

located between Tillamook County in Oregon and the Olympic Peninsula in

Washington, where few birds and occupied sites are known. The degree of

interaction that occurs across these gaps in distribution is unknown.

Very little habitat remains at low elevations in the Puget Trough

area of Washington. Lands surrounding the Puget Trough, particularly to

the east and south, are highly urbanized or developed for agricultural

use, forcing marbled murrelets to fly up to 25 miles inland to reach

the first available suitable nesting habitat.

Although marbled murrelets have been heard and/or seen at some

inland sites during most months of the year (Paton et al. 1987, Naslund

1993), detectability at inland sites increases during the spring and

reaches a peak late in summer coincident with the peak in breeding

activity (Paton and Ralph 1988, Nelson 1989). In early fall, the number

of inland detections decreases markedly, presumably because birds have

completed breeding and are undergoing a flightless molt at sea. It is

unknown why marbled murrelets visit inland sites during the non-

breeding season. Researchers hypothesize that birds attending these

areas in fall and winter may be experienced resident birds and that

these visits may aid in maintaining nest sites, nesting territories,

and pair bonds (Naslund 1993).

Marbled murrelets are currently experiencing very low recruitment

rates. Juvenile to adult ratios of marbled murrelets are between 0.012

and 0.035 (i.e., there are between 1 and 4 juvenile fledglings of that

year observed for every 100 adults observed) (Strong et al. 1993).

These results are supported by survey data collected at points along

the central coast of Oregon during 1988, 1989, 1990, 1991, and 1992.

The average percentage of juveniles in these counts were approximately

1, 4, 2, 5, and 1 percent, respectively (Nelson and Hardin in prep.).

Surveys conducted in California have indicated similar juvenile to

adult ratios since 1989 (Ralph, U.S. Forest Service, Redwood Sciences

Lab, pers. comm. 1992). If the juvenile to adult ratios observed in the

marine environment are accurate, then only 1 to 5 percent of the

observed population is successfully reproducing, that is, successfully

fledging young.

Average annual adult survival for stable populations of several

other alcid species is approximately 90 percent (Hudson 1985). Alcids

typically experience their highest rates of mortality prior to the

attainment of breeding age. The average survival to breeding age for

alcids is 29 percent (Hudson 1985). The combination of low fledging

rates of marbled murrelets, as demonstrated by the juvenile to adult

ratios, and low survival to breeding age are likely to produce

recruitment rates far below those required to maintain present

population levels.

Based upon the longevity of other alcids (Hudson 1985), marbled

murrelets are estimated to live an average of 10 years. With such long-

lived species, recruitment rates are a more accurate indicator of

species condition than population counts. At-sea counts of adult

marbled murrelets may reflect a large portion of non-breeders that will

not contribute to the future population. If the current low recruitment

rates are the result of recent losses of nesting opportunities, counts

of adults may not reflect the sustainable population until the

population adjusts to remaining nesting habitat.

Another possible explanation for the low juvenile to adult ratios

is that individuals are attempting to reproduce, but the young of these

birds are experiencing high mortality rates prior to reaching the

ocean. Predation at marbled murrelet nest sites may have significant

impacts on the population. Predation by corvids (common crows (Corvus

brachyrhynchos), ravens (Corvus corax), and Steller's jays (Cyanocitta

stelleri)), great horned owls (Bubo virginianus), and sharp-shinned

hawks (Accipiter striatus) have been identified as causes of marbled

murrelet nest failure. From 1974 through 1991, approximately 71 percent

of all known marbled murrelet nests in the Pacific Northwest failed; 70

percent of these failed due to predation by these species (Nelson in

litt. 1992).

Corvids are often considered ``edge species'' that have been found

to increase in numbers with increased forest fragmentation (Andren et

al. 1985, Wilcove 1985, Small and Hunter 1988). Similar findings have

been reported in central Oregon regarding great horned owls (Johnson

1993). In addition, corvid predation on small bird nests is known to

increase with increased forest fragmentation and/or decreased distance

of nests from a forest edge (Gates and Gysel 1978, Andren et al. 1985,

Small and Hunter 1988, Yahner and Scott 1988). The marbled murrelet's

main defense against predation is camouflage. The ability to

successfully hide from arboreal predators is likely related to the

number of nesting (or hiding) opportunities available. Timber harvest

reduces the number of nesting opportunities through the removal of

nesting habitat within the landscape, thus reducing the area predators

must search.

In addition to effects on marbled murrelet nesting habitat, the

species is affected by impacts and threats to their marine foraging

habitat and food supply, as well as direct mortality from human

activities such as oil spills and gill netting. Attributes of foraging

habitat include distance from shore, prey populations, and potential

disturbances.

Marbled murrelets are typically distributed in the marine

environment in a manner that roughly corresponds to the location of

concentrations of inland nesting habitat. Marbled murrelets generally

forage in near-shore marine waters.

Marine systems producing sufficient prey to support a stable or

growing population of marbled murrelets are important foraging habitat

for the species. Marbled murrelets have been reported feeding on a

variety of small fish and invertebrates, including Pacific herring

(Clupea harengus), Pacific sandlance (Ammodytes hexapterus), northern

anchovy (Engraulis mordax), capelin (Mallotus villosus), smelt,

euphids, (Eupahsia pacifica, Thysanoessa spinifera) and mysids (Sealy

1975, Sanger and Jones 1981, Sanger 1987, Carter and Sealy 1990, Strong

et al. 1993).

Mortality in the marine environment, primarily associated with oil

spills and net fisheries in Washington, adversely affects marbled

murrelets. The impact of this loss is generally thought to be less than

impacts to nesting habitat. Protection of foraging areas from

disturbance such as oil spills, net fisheries, and pollution would

benefit marbled murrelets.

Management Considerations

Marbled murrelets are found in forest stands containing a variety

of forest structures, which are, in part, the result of varied

management practices. In many areas, management practices have resulted

in fragmentation of the remaining older forests and creation of large

areas of younger forests that have yet to develop habitat

characteristics suitable for marbled murrelet nesting. Past forest

management practices have also resulted in a forest age distribution

unnaturally skewed toward younger-aged stands.

In many portions of the range of the marbled murrelet, forest

management has historically concentrated on clearcut logging. After

forests are clearcut, the areas are traditionally replanted to a single

or few tree species and maintained as even-aged stands for maximum

wood-fiber production. Site-preparation and management activities may

further decrease species diversity. These methods include prescribed

burning and the use of herbicides or mechanical methods to control

competing vegetation.

Historical logging practices in some portions of the species' range

consisted of more selective timber harvesting, leaving remnant patches

of forests of varying ages with older forest characteristics. The

uneven-age management practices used in these areas usually resulted in

more diverse stands, but with few trees containing suitable marbled

murrelet nesting structure. These areas may contain low concentrations

of reproducing marbled murrelets, which are difficult to locate.

Current and historic marbled murrelet habitat loss is generally

attributed to timber harvest and land conversion practices, although

natural disturbances such as forest fires have caused losses as well.

Reduction of the remaining older forest has not been evenly distributed

over western Washington, Oregon, and California. Harvest has been

concentrated at the lower elevations and in the Coast Ranges (Thomas et

al. 1990), generally equating with the range of the marbled murrelet.

Habitat for marbled murrelets has been declining since the arrival

of European settlers. Information specific to the range of the marbled

murrelet is not available; however, historic forest condition has been

estimated for western Oregon and Washington by several authors. Because

marbled murrelet habitat represents a significant portion of area

included in these estimates, trends in habitat are assumed to follow

the same general pattern. Although the extent of mature and old-growth

forest before the 1800s is difficult to quantify, western Oregon and

Washington are estimated to have been covered by approximately 9.7 to

11.3 million hectares (24 to 28 million acres) of forest at the time of

modern settlement (early to mid-1800s), of which about 70 percent (5.6

to 7.7 million hectares (14 to 19 million acres)) are estimated to have

been old-growth (Society of American Foresters Task Force 1983,

Morrison 1988, Norse 1988, Spies and Franklin 1988). Historical

estimates for northwestern California are not as precise but suggest

there were between 526,000 and 1.3 million hectares (1.3 and 3.2

million acres) of old-growth Douglas-fir/mixed conifer forest and

approximately 890,000 hectares (2.2 million acres) of old-growth

coastal redwood forest (Society of American Foresters Task Force 1983,

Laudenslayer 1985, California Department of Forestry and Fire

Protection 1988, Fox 1988, Morrison 1988). Currently, there are

approximately 1.4 million hectares (3.4 million acres) of old-growth

forest remaining in western Oregon and Washington, an 82 percent

reduction from estimated prelogging levels (Booth 1991).

Some of the old-growth areas that have been affected by past

natural perturbations such as forest fire and windthrow currently

provide suitable nesting habitat for marbled murrelets. Mature forests

that have naturally regenerated from such perturbations often retain

scattered old-growth trees and clumps, providing structure for nesting.

This is particularly true in coastal Oregon where there were extensive

fires historically. Marbled murrelet nests have been found in remnant

old-growth trees in mature forests in Oregon; no occupied sites have

been located in young stands, clearcuts, or young forests that lack at

least some remnant old-growth trees (Nelson pers. comm. 1992).

Forests generally require 200 to 250 years to develop old-growth

characteristics that supply adequate structure for nesting marbled

murrelets. This time period may be shorter in redwood forests and in

areas where significant remnants of the previous stand remain.

Intensively managed forests in Washington, Oregon, and California have

been subjected to average cutting rotations of 70 to 120 years (USDI

1984, USDA 1988). Cutting rotations of 40 to 50 years are common for

some private lands. Timber harvest strategies on Federal lands and some

private lands have emphasized dispersed clearcut patches and even-aged

management. Thus, forest lands that are intensively managed for timber

production are generally not allowed to develop the old-growth

characteristics that are required for marbled murrelet nesting.

Suitable nesting habitat that remains under these harvest patterns is

highly fragmented.

Previous Management Efforts

Since the listing of the marbled murrelet in Washington, Oregon,

and California as threatened, several different approaches to

management of the species or its habitat have been developed through

various Federal efforts.

In May 1991, the U.S. House of Representatives' Agriculture and

Merchant Marine and Fisheries Committees commissioned the Scientific

Panel on Late-Successional Forest Ecosystems (Scientific Panel) to

provide an array of alternatives for the management of late-

successional forests on Federal lands within the range of the northern

spotted owl (Strix occidentalis caurina). Information on the known

inland locations of marbled murrelets and marbled murrelet habitat was

included in the base information used by the Scientific Panel and was

specifically considered in developing the alternatives. These reserve

systems are often referred to as Late-Successional/Old-Growth areas

(LSOGs). The Scientific Panel conducted risk assessments for marbled

murrelets under each alternative (Johnson et al. 1991).

In 1993, the Forest Service released its Scientific Analysis Team

Report (Thomas et al. 1993). In this report, the Forest Service

proposed several interim measures designed to preserve options for

management of marbled murrelets and their habitat until the Marbled

Murrelet Recovery Plan could be completed and implemented. These

measures include: (1) The protection of all marbled murrelet nesting

habitat within 35 miles of the marine environment in California and

Oregon south of State Highway 42, and within 50 miles of the marine

environment in the remainder of Oregon and in Washington; and, (2) the

protection of amounts of ``recruitment'' habitat (young stands likely

to develop into suitable habitat) equivalent to 50 percent of the total

amount of existing suitable habitat in the above mentioned zones. Also,

seasonal restrictions on operations in and near suitable habitat were

identified to avoid disturbing nesting marbled murrelets.

In July 1993, the Fish and Wildlife Service, Forest Service, Bureau

of Land Management, National Park Service, National Marine Fisheries

Service, and Environmental Protection Agency released the Report of the

Forest Ecosystem Management Assessment Team (FEMAT Report) (USDA et al.

1993a). From this report, the President identified Option 9 as the

Proposed Northwest Forest Plan, described in the Draft 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 (DSEIS) as Alternative 9 (Alternative 9) (USDA

et al. 1993b). Within the range of the marbled murrelet, Alternative 9

would designate a system of Late-Successional Reserves, which provides

large areas expected to eventually develop into contiguous,

unfragmented forest. This reserve system was constructed in part around

the LSOGs designated by the Scientific Panel. In addition, specific

measures were included to protect all forest sites occupied by marbled

murrelets outside the reserve system. These measures include surveys

prior to activities that affect habitat and protection of contiguous

marbled murrelet nesting and recruitment habitat (stands capable of

becoming suitable within 25 years) within 0.5 mile of areas occupied by

murrelets.

The Service recognizes the value of the Proposed Northwest Forest

Plan (USDA et al. 1993a) and acknowledges that it can play an integral

role in marbled murrelet conservation. The Plan complements this

critical habitat proposal by stressing the need for protection of

large, unfragmented areas of suitable nesting habitat that are well-

distributed throughout the species' range, with special emphasis on

areas close to the marine environment.

Critical Habitat

Definition of Critical Habitat

Critical habitat is defined in section 3(5)(A) of the Act as: ``(i)

the specific areas within the geographical area occupied by the species

* * * on which are found those physical or biological features (I)

essential to the conservation of the species and (II) which may require

special management considerations or protection; and (ii) specific

areas outside the geographical area occupied by the species at the time

it is listed * * * upon a determination * * * that such areas are

essential for the conservation of the species.'' The term

``conservation,'' as defined in section 3(3) of the Act, means ``* * *

to use and the use of all methods and procedures which are necessary to

bring any endangered species or threatened species to the point at

which the measures provided pursuant to this Act are no longer

necessary * * *.''

Role in Species Conservation

The use of the term ``conservation'' in the definition of critical

habitat indicates that its designation should identify lands that may

be needed for a species' eventual recovery and delisting. However, when

critical habitat is designated at the time a species is listed or

before a recovery plan is completed, the Service frequently does not

know all the habitat areas that may be essential for a species'

recovery. In this regard, critical habitat serves to preserve options

for a species' eventual recovery.

The designation of critical habitat is one of several measures

available to contribute to the conservation of a listed species.

Critical habitat helps focus conservation activities by identifying

areas that contain essential habitat features (primary constituent

elements), regardless of whether or not they are currently occupied by

the listed species, thus alerting the public to the importance of an

area in the species' conservation. Critical habitat also identifies

areas that may require special management or protection. The added

emphasis on these areas for conservation of the species may shorten the

time needed to achieve recovery.

Critical habitat receives consideration under section 7 of the Act

with regard to actions carried out, authorized, or funded by a Federal

agency. Federal agencies must ensure that their actions do not result

in destruction or adverse modification of critical habitat. Aside from

this added consideration under section 7, the Act does not provide any

additional protection to lands designated as critical habitat.

Designating critical habitat does not create a management plan for the

areas, establish numerical population goals or prescribe specific

management actions (inside or outside of critical habitat), or have a

direct effect on areas not designated as critical habitat. Specific

management recommendations for critical habitat are addressed in

recovery plans, management plans, and in section 7 consultations.

Primary Constituent Elements

A designation of critical habitat begins by identifying areas on

which are found the physical and biological features essential to

conservation of a species. In determining which areas to designate as

critical habitat, the Service considers those physical and biological

features that are essential to a species' conservation and that may

require special management considerations or protection. Such physical

and biological features, as stated in 50 CFR 424.12, include, but are

not limited to, the following:

(1) Space for individual and population growth, and for normal

behavior;

(2) Food, water, air, light, minerals or other nutritional or

physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, rearing of offspring; and

(5) Habitats that are protected from disturbance or are

representative of the historic geographical and ecological

distributions of a species.

The Service is required to base critical habitat designations upon

the best scientific data available (50 CFR 424.12). In proposing to

designate critical habitat for the marbled murrelet in Washington,

Oregon, and California, the Service has reviewed its overall approach

to the conservation of the species. For a thorough discussion of the

ecology and life history of the marbled murrelet, see the Service's

Biological Report (Marshall 1988), the final rule listing the

Washington, Oregon, and California population (57 FR 45328) of this

subspecies, and the Ecological Considerations section of this rule.

Within habitat areas essential for marbled murrelet nesting, the

Service has focused on the following primary constituent elements: (1)

Individual trees with potential nesting platforms; (2) forest stands

surrounding potential nest trees, including contiguous forest with

similar average height and canopy closure; (3) forest stands with high

crown cover and sufficient height to contribute to a forest landscape

with decreased fragmentation; and (4) forest stands within the

potential flight distance of marbled murrelets from the marine

environment where the birds feed. These primary constituent elements

are essential to provide nesting habitat for the marbled murrelet.

Individual nest trees include large trees, generally over 81 cm (32

inches) dbh, with the presence of potential nest platforms or

deformities such as large limbs (greater than 13 cm (5 inches)), broken

tops, mistletoe infections, witches brooms, or other formations

providing a broad platform. Because marbled murrelets do not build

nests, moss or detritus to cushion or hold the egg may be important.

Platforms should have overhead cover for protection from predators and

weather, which may be provided by overhanging branches, limbs above the

nest area, or branches from neighboring trees. Based on current

information, Douglas-fir, coastal redwood, western hemlock, western

red-cedar, or Sitka spruce are the trees most likely to provide

suitable nesting structure.

Nesting habitat includes the forest stand in which the nest trees

are contained. Nest stands are defined as contiguous mature and old-

growth forest with no separations of greater than 100 meters (330 feet)

wide. Nest trees may be scattered throughout the stand or clumped

within portions of the contiguous stand. Nest stands in mature forest

may contain fewer than one old-growth tree per acre. Regardless of the

distribution of nest trees, nesting habitat includes the entire

contiguous forest stand with similar height and canopy closure. The

forest stand surrounding the nest tree provides protection from

predators and climatic factors.

On a landscape basis, the presence of late-successional, mature,

and old-growth forests with substantial canopy closure and canopy

height of at least one-half the site-potential tree height also

contribute to the conservation of the marbled murrelet, even if they do

not contain potential nest trees. The site-potential tree height is the

average maximum height possible for a tree given the local growing

conditions. The presence of these forest stands increases the area

predators must search, decreasing predator efficiency. Forests of the

general height of the nest stands and in close proximity to the stand

reduce edge-associated predation, effects of changes in microclimate

associated with abrupt edges, and potential for windthrow during

storms.

To be considered as nesting habitat, forest stands must occur at a

distance from the marine environment consistent with the flight and

energetic capabilities of the marbled murrelet. Based on confirmed

detections of marbled murrelets, this distance varies from 84

kilometers (52 miles) in Washington to less than 16 kilometers (10

miles) in parts of California. Flight distances may reflect the

energetic capabilities of marbled murrelets and the presence of

suitable nesting habitat.

The Service is not proposing to designate marine areas as critical

habitat for the marbled murrelet at this time, but will continue to

collect information on threats, the need for marine critical habitat,

and the potential benefits of designating marine critical habitat.

Criteria for Identifying Critical Habitat

Several qualitative criteria were considered in the selection of

specific areas as critical habitat. These criteria are generally

similar to criteria used in the development of several recent Federal

management proposals, such as the report prepared by the Scientific

Panel (Johnson et al. 1991) and Alternative 9 (USDA et al. 1993a). The

following is a description of the criteria considered:

Known Occupied Sites: Proposed critical habitat units include the

majority of the known sites occupied by marbled murrelets on Federal

lands. However, known occupied sites may represent only a small portion

of the population due to the limited coverage of past survey efforts.

Suitable Nesting Habitat: Proposed critical habitat units include

areas with current suitable nesting habitat and other primary

constituent elements. Approximately 48 percent of the suitable nesting

habitat on Federal lands within the range of the species in Washington,

Oregon, and California is included in proposed critical habitat.

Forests that are not currently suitable, but which are of similar

average height and canopy closure, are also important in improving

habitat conditions through reduced fragmentation and creation of large

contiguous forest stands that reduce the potential for predation. The

total amount of land containing the other primary constituent elements

is currently unknown.

Distance from Marine Environment: Marbled murrelets forage daily in

the marine environment during the nesting season. To allow for foraging

opportunities, nesting habitat must be within the flight capabilities

and energetic limits of the species. Proposed critical habitat units

were selected based on the distance inland of detections in each

general area. As stated above, detections range from over 50 miles from

the marine environment in Washington to less than 10 miles in some

portions of California.

Rangewide Distribution: To reduce the impact of catastrophic losses

of habitat or birds and maintain the current distribution of the

species, proposed critical habitat units were selected throughout the

range of the listed population, where Federal lands were available.

With well-distributed critical habitat, the probability of substantial

population declines resulting from catastrophic wildfires or storm

events is reduced. Maintaining nesting habitat, and therefore local

concentrations, throughout the range of the species will reduce

potential losses from oil spills or other marine events. Given the

intense site fidelity of most alcid species, maintaining rangewide

distribution may also provide potential source populations for the

recolonization of future habitat.

Large, Contiguous Blocks of Habitat: In response to the problems of

fragmentation of suitable habitat, potential increases in predation,

and reduced reproductive success, the Service concentrated on selecting

proposed critical habitat units in terms of large, contiguous blocks of

late-successional, mature, and old-growth forest. To provide large

blocks of habitat, the Service concentrated on the Late-Successional

Reserve system identified in Alternative 9. Marbled murrelet locations

and habitat were considered in the development of these reserves. Where

large blocks of Federal reserve areas were not available, but where

critical habitat was determined to be important for distribution,

smaller Federal reserves were included.

Adequacy of Existing Protection and Management: The Service

considered the existing legal status of lands in the decision to

propose specific areas as critical habitat. Areas with permanent legal

protection, such as congressionally-designated wilderness areas,

national parks, and national wildlife refuges, are not proposed.

Results of Applying Criteria

Application of the selection criteria resulted in the proposed

designation of many of the Late-Successional Reserves, as described in

Alternative 9, on Federal lands within the range of the marbled

murrelet in Washington, Oregon, and California.

At this time, only Federal lands are proposed for designation.

However, the Forest Ecosystem Management Assessment Team recognized the

limited ability of Federal agencies to recover this species on Federal

lands. ``Although the Forest Ecosystem Management Assessment was

designed to address only Federal lands within the range of the northern

spotted owl, the marbled murrelet is an example of a species whose life

history requirements cannot be accommodated only on Federal lands. The

marbled murrelet is a seabird that nests inland and therefore is

influenced by both the marine and terrestrial environments. Its nesting

range in the three-state area includes land that is south of the range

of the northern spotted owl. In addition, several areas that are

considered key to the recovery of the marbled murrelet involve private

and State lands'' (FEMAT Report at IV-151 and IV-152, USDA et al.

1993a). For example, the southernmost portion of the range of the

marbled murrelet in California, southwest Washington, and northwest

Oregon contain little or no Federal lands or habitat capable of

supporting marbled murrelets. The Service currently lacks sufficient

information to fully identify any specific non-Federal lands essential

to the conservation of the species in these and other areas. The

Service will continue to gather information on non-Federal land

contributions to conservation and through this notice is requesting

comments on this subject.

Lands Not Proposed

Not all suitable nesting habitat is included within the proposed

critical habitat units. Emphasis has been placed on those areas

considered most essential to the species in terms of habitat,

distribution, and ownership. That does not mean that lands outside

critical habitat are not important to the marbled murrelet. Some

Federal lands outside of critical habitat are expected to receive

additional protection from the conservation measures proposed in

Alternative 9. Some habitat on non-Federal lands receives protection

through prohibitions against take of marbled murrelets.

Congressionally-protected Areas

Because they are generally managed as natural ecosystems,

congressionally-designated wilderness areas and national parks are

expected to protect marbled murrelet habitat from alteration. These

areas are not proposed for designation as critical habitat because the

management goals are generally adequate to conserve the species.

However, not all congressional designations are managed in this manner.

For example, national recreation areas may not be managed to maintain

older forest habitats. In addition, some national parks and wilderness

areas are experiencing internal and external threats (e.g., highway

realignments) to marbled murrelet habitat. The Service is continuing to

gather information on management goals and potential threats to these

types of areas.

Congressionally-protected areas (e.g., wilderness areas and

national parks) are rare within the range of the marbled murrelet in

Washington, Oregon, and California. Few wilderness areas lie within the

flight distance of marbled murrelets from the marine environment,

though some of these areas provide crucial contributions to the

conservation of the species. A substantial portion of these areas are

incapable of producing marbled murrelet nesting habitat because of

forest composition, lack of forest cover, elevation, and other

constraints. Therefore, by themselves, congressionally-protected areas

are incapable of supporting stable and interactive populations of

marbled murrelets.

Wilderness areas and national parks contain approximately 302,000

hectares (747,000 acres) of marbled murrelet nesting habitat,

representing 29 percent of the suitable nesting habitat on Federal

lands within the range of the marbled murrelet. They contain 46 (8

percent) of the known occupied sites on Federal lands.

Effects of Proposed Designation

This proposal for designation of critical habitat for the marbled

murrelet identifies 62 proposed critical habitat units encompassing

approximately 1,217,000 hectares (3,005,000 acres) of Federal land

based on information available in the Interagency Geographical

Information System (GIS) and FEMAT Report (USDA et al. 1993a). The

Service has identified 28 proposed critical habitat units totaling

471,000 hectares (1,162,000 acres) of Federal land in Washington, 20

proposed critical habitat units totaling 560,000 hectares (1,382,000

acres) of Federal land in Oregon, and 14 proposed critical habitat

units totaling 186,000 hectares (460,000 acres) of Federal land in

California. State, private, tribal, and other non-Federal lands are not

proposed as critical habitat at this time even if they are physically

located within the boundaries of a proposed critical habitat unit, and

acreage of non-Federal lands is not included in the above figures.

Some small areas of naturally-occurring or human-created non-

suitable habitat (i.e., areas that have never been nor will likely ever

be marbled murrelet nesting habitat, such as alpine areas, water

bodies, serpentine meadows, airports, roads, buildings, and parking

lots) are located within the physical boundaries of proposed critical

habitat units. Where possible, these areas were not included within the

proposed critical habitat boundaries, and acreage totals were adjusted

to reflect the exclusion of this non-suitable habitat. However, many of

these areas are small and could not be physically identified on the GIS

maps. Also, current mapping information does not allow precise

identification of the location of primary constituent elements. The

Service is continuing to gather information to refine the boundaries of

critical habitat units to eliminate areas that do not contain one or

more of the primary constituent elements or will remain non-suitable.

Efforts by Federal agencies to survey for marbled murrelets have

been concentrated in areas of proposed timber sales or limited research

locations. Only a small fraction of the suitable nesting habitat has

been surveyed to date, and surveys have not been uniformly spread

across the range of the species. Therefore, known occupied sites

provide only a partial indication of the actual areas used by the

species. The proposed critical habitat includes 449 (78 percent) of the

574 known occupied sites on Federal lands. Congressionally-protected

areas include 48 additional occupied sites. Congressionally-protected

areas were not included in critical habitat because management is

expected to be consistent with the conservation of the marbled

murrelet.

The Service does not have specific information on the amount of

suitable nesting habitat or habitat containing one or more of the

primary constituent elements on non-Federal lands within the species'

range, though it is aware through the Forest Ecosystem Management

Assessment Team databases of approximately 189 known occupied sites on

non-Federal lands. The Service continues to seek information and

comments on the location of suitable nesting habitat and occupied sites

on non-Federal lands.

Designation of critical habitat would not offer specific direction

for managing marbled murrelet nesting habitat nor provide a management

or conservation plan for the species. Recovery plans typically provide

guidance for conservation, which may include population goals and the

identification of areas that may need protection or special management.

Recovery plans usually include management recommendations for

designated critical habitat. In February 1993, the Service appointed a

recovery team to develop a recovery plan for the marbled murrelet. The

team plans to have a draft recovery plan available in the spring of

1994. The Service will continue to work closely with the recovery team

and will reexamine proposed critical habitat in light of recovery team

recommendations.

Section 7--Consultation

Section 7(a)(2) of the Act requires Federal agencies to ensure that

activities they authorize, fund, or carry out are not likely to destroy

or adversely modify designated critical habitat. This Federal

responsibility accompanies, and is in addition to, the requirement in

section 7(a)(2) of the Act that Federal agencies ensure that their

actions are not likely to jeopardize the continued existence of any

listed species. A Federal agency must consult with the Service if its

proposed action may affect a listed species or critical habitat.

Regulations implementing this interagency cooperation provision of the

Act are codified at 50 CFR part 402.

Destruction or adverse modification of critical habitat is defined

at 50 CFR 402.02 as ``* * * a direct or indirect alteration that

appreciably diminishes the value of critical habitat for both the

survival and recovery of a listed species. Such alterations include,

but are not limited to, alterations adversely modifying any of those

physical or biological features that were the basis for determining the

habitat to be critical.'' The jeopardy concept is defined at 50 CFR

402.02 as any action that would be expected to reduce appreciably the

likelihood of both the survival and recovery of a species.

Survival and recovery, mentioned in both the definition of adverse

modification and jeopardy, are directly related. Survival may be viewed

as a linear continuum between recovery and extinction of the species.

The closer one is to recovery, the greater the certainty in the

species' continued survival. The terms survival and recovery are thus

related by the degree of certainty that the species will persist over a

given period of time. Factors that influence a species' persistence

include population numbers, distribution throughout its range,

stochasticity, expected duration, and reproductive success.

The Act's definition of critical habitat indicates that the purpose

of critical habitat is to contribute to a species' conservation.

Section 7 prohibitions against the destruction or adverse modification

of critical habitat apply to actions that would impair survival and

recovery of the listed species, thus providing a regulatory means of

ensuring that Federal actions within critical habitat are considered in

relation to the goals and recommendations of a recovery plan. As a

result of the link between critical habitat and recovery in the Act's

definition of critical habitat, the prohibition against destruction or

adverse modification of critical habitat should provide for the

protection of the critical habitat's ability to contribute to the

recovery of the species. Thus, the adverse modification standard may be

reached closer to the recovery end of the survival continuum, whereas,

the jeopardy standard has been applied nearer to the extinction end of

the continuum.

After a proposal of critical habitat, section 7(a)(4) of the Act

and implementing regulations (50 CFR 402.10) require Federal agencies

to confer with the Service on any action that is likely to result in

the destruction or adverse modification of the proposed critical

habitat. Conference reports provide advisory conservation

recommendations to assist a Federal agency in identifying and resolving

conflicts that may be caused by the proposed action.

If an agency requests, and the Service concurs, a formal conference

report may be issued. A formal conference report on proposed critical

habitat contains an opinion that is prepared in accordance with 50 CFR

402.14 as if the critical habitat were designated, not proposed. Such a

formal conference report may be adopted as the biological opinion

pursuant to 50 CFR 402.10(d) when the critical habitat is designated,

if no significant new information has been brought forward and no

changes in the action occur that would alter the content of the

opinion.

Examples of Proposed Actions

Section 4(b)(8) of the Act requires, for any proposed or final

regulation that designates critical habitat, a brief description and

evaluation of those activities (public or private) that may adversely

modify such habitat or may be affected by such designation. As stated

earlier, regulations found at 50 CFR 402.02 define destruction or

adverse modification of critical habitat as a direct or indirect

alteration that appreciably diminishes the value of critical habitat

for both the survival and recovery of a listed species. Such

alterations include, but are not limited to, alterations adversely

modifying any of those physical or biological features that were the

basis for determining the habitat to be critical.

A wide variety of existing and proposed activities may alter or

affect proposed marbled murrelet critical habitat. Examples of such

activities include, but are not limited to timber harvest, forest

management, salvage activities, limbing or modification of limb

structure (e.g., for hazard management), mining and mineral

exploration, construction of hydroelectric facilities, road

construction and refurbishing, and development. Activities that do not

alter forest condition, such as some recreational use and personal-use

commodity production (e.g., noncommercial mushroom picking, Christmas

tree cutting, rock collection) are unlikely to be affected by the

proposed designation.

Activities conducted according to the standards and guidelines for

Late-Successional Reserves, as described in Alternative 9 of the DSEIS

for the Proposed Northwest Forest Plan would, in most cases, be

unlikely to result in the destruction or adverse modification of

proposed marbled murrelet critical habitat. Activities in these areas

would be limited to manipulation of young forest stands that are not

currently marbled murrelet nesting habitat. Also, these manipulations

would be conducted in a manner that would not slow the development of

these areas into future nesting habitat and should speed the

development of some characteristics of older forest.

Economic and Other Impacts

The Act requires the Service to designate critical habitat on the

basis of the best scientific data available and to consider the

economic and other relevant impacts of specifying any particular area

as critical habitat. The Secretary may exclude any area from critical

habitat if he determines that the benefits of such exclusion outweigh

the benefits of specifying such area as part of the critical habitat,

unless he determines, based on the best scientific and commercial data

available, that the failure to designate such area as critical habitat

will result in the extinction of the species concerned. The Act thus

requires the Service to evaluate the economic and other effects likely

to result from a designation of critical habitat. Effects attributable

to the listing of the species, normal changes in affected industries,

or changes in Federal land management that are not caused by the

designation are not regarded as effects of the designation of critical

habitat. However, due to the complex interplay of economic and other

forces, separating impacts associated solely with the designation of

critical habitat from other impacts is often difficult.

The proposed critical habitat units for the marbled murrelet

coincide with the location of many of the Late-Successional Reserves as

described in Option 9 of the FEMAT Report (USDA et al. 1993a) and

Alternative 9 (USDA et al. 1993b). Alternative 9 is identified as the

preferred alternative in the DSEIS for the Proposed Northwest Forest

Plan. Based on the description of standards for management of and

limitations on impacts to marbled murrelet habitat within the Late-

Successional Reserves, management of the Reserves under Alternative 9

would be consistent with designating them as critical habitat for the

marbled murrelet. Therefore, the economic effects of the designation of

Late-Successional Reserves as critical habitat are not likely to exceed

those described in the economic analysis of the FEMAT Report (Johnson

et al. 1993, USDA et al. 1993a).

The Service has preliminarily reviewed the possible economic

impacts of designating critical habitat for the marbled murrelet on

ongoing timber activities. Both the Forest Service and the Bureau of

Land Management are currently under court injunctions prohibiting the

offering of any new sales until the agencies comply with the National

Environmental Policy Act and various forest management legislation. The

Proposed Northwest Forest Plan will be presented to the court by April

1994 in an attempt to resolve the court's concerns. Pending that court

decision, the only timber available to the timber industry from Federal

lands are sold and awarded sales, particularly sales offered under the

protection of Section 318. Therefore, the Service proposes to exclude

sold and awarded sales from any final critical habitat designation due

to economic impacts, both regionally and nationally, due to the limited

amount of volume available for Federal harvest. Comments are requested

from the public on this aspect of the proposed rule.

The time constraints governing this proposed critical habitat

designation did not allow for a more detailed evaluation on the

particular areas proposed. Following receipt of comments and

information during the public comment period, the Service will conduct

additional economic analyses if needed. The Service will further

evaluate the economic and other relevant impacts of including or

excluding particular areas from a designation of marbled murrelet

critical habitat.

Public Comments Solicited

The Service intends that any final action resulting from this

proposal will be as accurate and as effective as possible. Therefore,

comments or suggestions from the public, other concerned government

agencies, Indian Nations, the scientific community, industry, or any

other interested party concerning this proposed rule is hereby

solicited. Comments are particularly sought concerning:

(1) The reasons why any Federal lands (either proposed critical

habitat or additional areas) should or should not be determined to be

critical habitat as provided by section 4 of the Act, including

adaptive management areas under Alternative 9 of the Proposed Northwest

Forest Plan;

(2) The location and reasons why any non-Federal lands should or

should not be determined to be critical habitat as provided by section

4 of the Act, including potential threats and the value of any areas to

the conservation of the species;

(3) The reasons why any marine areas should or should not be

determined to be critical habitat as provided by section 4 of the Act,

including information on potential threats, current activities, the

effect of current regulatory mechanisms, and benefits to the species;

(4) Current and planned activities in proposed critical habitat

areas and their possible impacts on proposed critical habitat;

(5) Any threats to the conservation of the marbled murrelet or the

maintenance of marbled murrelet nesting habitat on congressionally-

protected lands within the range of the marbled murrelet;

(6) Current and planned activities within congressionally-protected

areas that might affect, positively or negatively, the conservation of

the marbled murrelet, including any management plans or statutory

mandates;

(7) Other physical and biological features that are essential to

the conservation of the species and in need of special management or

protection;

(8) Specific information on the amount, location, and distribution

of suitable marbled murrelet nesting habitat and the numbers and

distribution of sites occupied by marbled murrelets on all ownerships

and land designations;

(9) Information concerning health of the ecosystems on which the

marbled murrelet depends;

(10) Information on the economic benefits and costs that would

result from the proposed designation of critical habitat for the

marbled murrelet, including the segments of the economy that would be

affected by the proposed designation;

(11) Data and information relevant to determining whether the

benefits of excluding a particular area from critical habitat outweigh

the benefits of specifying the area as critical habitat;

(12) Methods of analysis useful in evaluating economic and other

relevant impacts; and

(13) Additional information that should be included in the analysis

of economic and other impacts of the proposed designation.

National Environmental Policy Act

The Service has determined that an Environmental Assessment, as

defined under the authority of the National Environmental Policy Act of

1969, need not be prepared in conjunction with regulations adopted

pursuant to section 4(a) of the Act. A notice outlining the Service's

reasons for this determination was published in the Federal Register on

October 25, 1983 (48 FR 49244).

Regulatory Flexibility Act and Executive Order 12866

This proposed rule has been reviewed under Executive Order 12866.

The Department of the Interior has determined that the proposed rule

will not have a significant economic effect on a substantial number of

small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.). Based on the information discussed in this rule concerning

public projects and private activities within proposed critical habitat

units, it is not clear at this time whether significant economic

impacts will result from critical habitat designation. Also, no direct

costs, enforcement costs, information collection, or recordkeeping

requirements are imposed on small entities by this designation.

Further, the rule contains no recordkeeping requirements as defined by

the Paperwork Reduction Act of 1980.

Takings Implications Assessment

The Service has analyzed the potential takings implications of

designating critical habitat for the marbled murrelet in a Takings

Implications Assessment prepared pursuant to requirements of Executive

Order 12630, ``Governmental Actions and Interference with

Constitutionally Protected Property Rights.'' The Takings Implications

Assessment concludes that critical habitat designation, as proposed,

would not pose significant takings implications.

References Cited

A complete list of all references cited herein is available upon

request from the Field Supervisor, Portland Field Office, 2600 SE 98th

Avenue, suite 100, Portland, Oregon 97266, (503) 231-6179.

Authors

The primary authors of this proposed rule are Robin Bown, U.S. Fish

and Wildlife Service, Portland Field Office, 2600 SE 98th Avenue, Suite

100, Portland, Oregon 97266; Kimberly Flotlin, U.S. Fish and Wildlife

Service, Olympia Field Office, 3704 Griffin Lane SE, suite 102,

Olympia, Washington 98501; and Mike Horton, U.S. Fish and Wildlife

Service, Sacramento Field Office, 2800 Cottage Way, room E-1803,

Sacramento, California 95825.

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(h) [Amended]

2. Section 17.11(h) is amended by revising the ``Critical habitat''

entry for ``Murrelet, marbled'' under BIRDS to read ``17.95(b)''.

3. Section 17.95(b) is amended by adding critical habitat for the

marbled murrelet in the same alphabetical order as the species occurs

in Sec. 17.11(h).

Sec. 17.95 Critical habitat--fish and wildlife

* * * * *

(b) * * *

MARBLED MURRELET (Brachyramphus marmoratus marmoratus)

For the States of California, Oregon, and Washington, proposed

critical habitat units under Federal jurisdiction are depicted on the

general configuration maps below. More detailed maps are maintained on

file at the U.S. Fish and Wildlife Service, Ecological Services, 911

Northeast 11th Avenue, Portland, Oregon, 97323 (503/231-6131). Copies

of the detailed maps are available upon request at the requester's

expense.

Dated: January 14, 1994

BILLING CODE 4310-55-P

TP27JA94.000

TP27JA94.001

TP27JA94.002

BILLING CODE 4310-55-C

Richard N. Smith,

Acting Director, U.S. Fish and Wildlife Service.

[FR Doc. 94-1704 Filed 01-26-94; 8:45 am]

BILLING CODE 4310-55-P