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Federal Register/Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations 53225 The 2004 National Defense Authorization Act (Pub. L. 108 -136, November 2003), in Section 318, Military Readiness and Conservation of Protected Species (Defense Authorization Act) makes the following amendment to section 4(a)(3) of the Act: the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. Therefore, lands essential to the conservation of a species that are owned or managed by DOD and covered by INRMPs are excluded from critical habitat designations if they meet that criteria. The Camp Navajo Army Depot, Arizona, was proposed as critical habitat. We have been providing technical assistance to Camp Navajo Army Depot for the last 3 years regarding the development of their INRMP and natural resources on the installation. The INRMP was finalized in late 2001. However, the INRMP was finalized without seeking signatures from our Region 2 Regional Director and the State Director of the Arizona Game and Fish Department (AGFD) (Service 2001). Per the Sikes Act and the Army's regulations, the INRMP is only final when the Service and AGFD (concurring agencies) have signed off on the INRMP. Because the INRMP was completed without signatures from concurring agencies, and when we reviewed early drafts we found that it did not provide a conservation benefit to the owl, we find Camp Navajo Army Depot's INRMP does not conform to the Defense Authorization Act. Moreover, we did not receive any comments from Camp Navajo Army Depot regarding the proposed designation. Because the base currently contains protected and restricted habitat and primary constituent elements, we find these lands to be essential to the conservation of the owl. For these reasons, these lands are designated as critical habitat. U.S. Naval Observatory Flagstaff Station, Arizona, was proposed as critical habitat. We reviewed their final INRMP in 2001 and concluded that it provides a benefit to the species. The INRMP provides management direction for the owl on this installation. Thus, we are not including this area in the final designationof critical habtiat for the owl pursuant to section 4(a)(3) of the Act. Fort Carson, Colorado, was proposed as critical habitat for the owl. Fort Carson completed their final MRMP on April 8, 2003, which includes specific guidelines for protection and management for the owl. We have reviewed their final INRMP relative to whether the plan provides a benefit to the subject species. It is our determination that the final INF1%4P for Fort Carson provides a benefit to the owl. Thus, we are not including Fort Carson in the final designation of critical habtiat for the owl pursuant to section 4(a)(3) of the Act. Fort Huachuca was proposed as critical habitat, but completed an INRMP in 2001. The plan helps guide natural resources management on Fort Huachuca, while supporting the military's mission. In 2002, we completed a biological opinion for Fort Huachuca on all installation activities, including its INRMP (Service 2002a). Fort Huachuca conducts owl monitoring and surveys and its projects are designed to be consistent with and complement the Recovery Plan (Service 2002a). We found that the proposed action was not likely to jeopardize the continued existence of the owl or adversely modify designated critical habitat. Because the INRMP provides a benefit to the owl, Fort Huachuca is not included in the designation of critical habitat for the owl pursuant to section 4(a)(3) of the Act. Effect of Critical Habitat Designation Section 7 Consultation The regulatory effects of a critical habitat designation under the Act are triggered through the provisions of section 7, which applies only to activities conducted, authorized, or funded by a Federal agency (Federal actions). Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR 402. We are currently reviewing the regulatory definition of adverse modification in relation to the conservation of the species. Individuals, organizations, States, local governments, and other non - Federal entities are not affected by the designation of critical habitat unless their actions occur on Federal lands, require Federal authorization, or involve Federal funding. Please refer to the proposed rule to designate critical habitat for the owl for a detailed discussion of section 7 of the Act in relation to the designation of critical habitat (65 FR 45336; July 21, 2000). Federal actions not affecting listed species or critical habitat and actions on non - Federal lands that are not federally funded, authorized, or permitted do not require section 7 consultation. Activities on Federal lands that may affect the owl or its critical habitat will require section 7 consultation. Activities on State or private lands requiring a permit from a Federal agency, such as a permit from the FS, or some other Federal action, including funding (e.g., Federal Highway Administration, Federal Aviation Administration, or Federal Emergency Management Agency) will continue to be subject to the section 7 consultation process only for actions that may affect the owl, but not for critical habitat because areas under State or private ownership are not included in the critical habitat designation by definition. Similarly, Tribal lands that we did not designate as critical habitat will also continue to be subject to the section 7 consultation process only for actions that may affect the owl. The FS WUI project areas that we excluded from this designation have already been analyzed through the consultation process and biological opinions. Other projects within these areas will continue to be consulted upon for potential effects to the owl and critical habitat. Federal actions not affecting listed species or critical habitat and actions on non - Federal lands that are not federally funded or regulated do not require section 7 consultation. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisor. We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain a biological opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as a biological opinion if the critical habitat is designated and if no significant new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)). Regulations at 50 CFR 402.16 also require Federal agencies to reinitiate consultation in instances where we have already reviewed an action for its effects on a listed species if critical habitat is subsequently designated. Consequently, some Federal agencies may request reinitiation of consultation or