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Federal Register/Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations 53185
<br />timeline for compliance with the
<br />January 13, 2003, order. The Court also
<br />indicated that a notice reopening the
<br />comment period on the July 2000
<br />proposal is appropriate. On October 30,
<br />2003, the parties submitted a Joint
<br />Proposed Timeline and Memorandum of
<br />Dispute to the Court. On November 12,
<br />2003, the Court adopted our proposed
<br />timeline and required us to submit a
<br />notice to the Federal Register on
<br />November 7, 2003, reopening the
<br />comment period on the July 21, 2000,
<br />proposed designation of critical habitat
<br />for the owl. The parties agreed that this
<br />notice would solicit comment regarding
<br />all of the lands proposed for designation
<br />that were not included in the 2001 final
<br />designation. The Court's order also
<br />required us to submit the final critical
<br />habitat designation to the Federal
<br />Reggi�sster on August 20, 2004.
<br />On November 18, 2003 (68 FR 65020),
<br />we reopened the public comment period
<br />on our July 21, 2000, proposed rule to
<br />designate critical habitat for the owl (65
<br />FR 45336). The proposal included
<br />approximately 5.5 million hectares (ha)
<br />(13.5 million acres (ac)) in Arizona,
<br />Colorado, New Mexico, and Utah,
<br />mostly on Federal lands. On November
<br />12, 2003, the United States District
<br />Court for the District of Arizona (Center
<br />for Biological Diversity v. Norton, Civ.
<br />No. 01 -409 TUC DCB) ordered the
<br />Service to submit a final rule for
<br />designation of critical habitat for the
<br />owl to the Federal Register by August
<br />20, 2004. On March 26, 2004, we
<br />published a notice of availability of the
<br />final draft economic analysis and the
<br />final draft environmental assessment
<br />and opened a 30 -day comment period
<br />(69 FR 15777). During this comment
<br />period, we held one informational
<br />meeting in Las Cruces, New Mexico, to
<br />provide an opportunity to the public to
<br />ask us questions. We have prepared this
<br />designation pursuant to the November
<br />12, 2003, Court order.
<br />We contacted appropriate State and
<br />Federal agencies, Tribes, county
<br />governments, scientific organizations,
<br />and other interested parties and invited
<br />them to comment. As noted in the
<br />previous designation, we published
<br />newspaper notices inviting public
<br />comment and announcing the public
<br />hearings in newspapers (66 FR 8530).
<br />We also held six public hearings on the
<br />proposed rule: Sante Fe (August 14,
<br />2000) and Las Cruces (August 15, 2000),
<br />New Mexico; Tucson (August 16, 2000)
<br />and Flagstaff (August 17, 2000),
<br />Arizona; Colorado Springs, Colorado
<br />(August 21, 2000); and Cedar City, Utah
<br />(August 23, 2000), and an informational
<br />meeting in Las Cruces (April 21, 2004),
<br />New Mexico. Transcripts of the hearings
<br />are available for inspection (see
<br />ADDRESSES section).
<br />Summary of Comments and
<br />Recommendations
<br />As noted above, on November 18,
<br />2003, we reopened the public comment
<br />period on the July 21, 2000, proposed
<br />rule. In the following section, we
<br />categorize and respond to applicable,
<br />substantive comments received during
<br />all four of the public comment periods.
<br />We solicited seven independent
<br />expert ornithologists who are familiar
<br />with this species to peer review the
<br />proposed critical habitat designation.
<br />However, only two of the peer reviewers
<br />submitted comments. Both responding
<br />peer reviewers supported the proposal.
<br />We also received a total of 27 oral and
<br />859 written comments (the majority of
<br />written comments were in the form of
<br />printed postcards). Of those oral
<br />comments, 10 supported critical habitat
<br />designation, 14 were opposed to
<br />designation, and 3 provided additional
<br />information but did not support or
<br />oppose the proposal. Of the written
<br />comments, 764 supported critical
<br />habitat designation, 65 were opposed to
<br />designation, and 30 were neutral but
<br />provided information. We reviewed all
<br />comments received for substantive
<br />issues and new data regarding critical
<br />habitat and the owl. We address all
<br />comments received during the comment
<br />periods and public hearing testimony in
<br />the following summary of issues.
<br />Comments of a similar nature are
<br />grouped into issues.
<br />Issue 1: Biological Concerns
<br />(1) Comment: The wording of the
<br />attributes of the primary constituent
<br />elements is not consistent with the
<br />definitions of forest cover types as
<br />described in the Recovery Plan, and
<br />there is a high potential for confusion
<br />over exactly which areas are included in
<br />the proposed designation. Do all of the
<br />primary constituent elements have to be
<br />present for the area to be considered
<br />critical habitat, or just one? The
<br />constituent elements described are
<br />vague (violating 50 CFR Sec. 424.12(c))
<br />and should include the required greater
<br />detail defining what constitutes critical
<br />habitat. The boundaries are impossible
<br />to identify.
<br />Our Response: As stated in the critical
<br />habitat designation section, the critical
<br />habitat designation is consistent with
<br />the Recovery Plan and includes areas
<br />within the mapped boundaries that are
<br />protected or restricted habitat and
<br />include one or more of the primary
<br />constituent elements. Protected habitat
<br />is areas where owls are known to occur
<br />or are likely to occur. Protected habitat
<br />includes: (1) 600 acres around known
<br />owl sites within mixed conifer forests or
<br />(2) pine -oak forests with slopes greater
<br />than 40 percent and where timber
<br />harvest has not occurred in the past 20
<br />years. Restricted habitat includes areas
<br />outside of protected habitat which owls
<br />utilize for foraging and dispersing.
<br />Restricted habitat includes mixed
<br />conifer forest, pine -oak forest and
<br />riparian habitat types.
<br />We also clarified the definitions and
<br />use of the terms protected and restricted
<br />habitat for the purposes of identifying
<br />critical habitat and the primary
<br />constituent elements of critical habitat
<br />in this rule (see "Primary Constituent
<br />Elements" section below). During the
<br />comment periods, we requested, but did
<br />not receive, any information regarding
<br />refinements to the primary constituent
<br />elements. However, given the concern
<br />expressed by commenters that the
<br />primary constituent elements were
<br />vague, we reanalyzed existing
<br />information and refined the primary
<br />constituent elements. This final rule
<br />describes the specific areas and primary
<br />constituent elements essential to the
<br />conservation of the owl based on the
<br />best available information.
<br />We did receive information from a
<br />variety of sources to allow further
<br />analysis on whether particular critical
<br />habitat units, or portions thereof,
<br />contained or lacked one or more
<br />primary constituent elements. This
<br />information allowed us to refine our
<br />maps (see "Changes to Proposed Rule"
<br />section below). Further, while we
<br />welcome and encourage additional
<br />studies on the biological requirements
<br />of the owl, we believe the best available
<br />information has been used in defining
<br />the areas and primary constituent
<br />elements necessary for the species'
<br />conservation. Nevertheless, we
<br />recognize that not all of the developed
<br />land areas within the boundaries of the
<br />designation will contain the habitat
<br />components essential to the
<br />conservation of the species. For this
<br />reason, some developed lands are
<br />excluded by definition (see the
<br />"Regulation Promulgation" section
<br />below).
<br />Critical habitat units are defined by
<br />geographic information system
<br />coverages and associated Universal
<br />Transverse Mercator (UTM) coordinates.
<br />This information can be obtained from
<br />our Web site at http: / /ifw2es.fws.govl
<br />mso/ or by contacting our New Mexico
<br />Ecological Services Field Office (see
<br />ADDRESSES).
<br />(2) Comment: Some areas proposed as
<br />critical habitat units contain a
<br />considerable amount of land that is not
<br />suitable for or occupied by owls, and
<br />
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