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Federal Register / Vol. 86, No. 199 / Tuesday, October 19, 2021 / Proposed Rules necessary for fishers to safely forage or reduce the availability of prey species, reducing the fishers survival and successful reproduction.
3 Actions that would reduce connectivity between patches of denning habitat. Such activities include, but are not limited to, the same types of large-scale activities listed in 1, above.
These activities would prevent safe movement of adult fishers, dispersing subadults, and kits.
Exemptions Application of Section 4a3Bi of the Act Section 4a3Bi of the Act 16
U.S.C. 1533a3Bi provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense DoD, or designated for its use, that are subject to an integrated natural resources management plan 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. No DoD lands with a completed INRMP are within the proposed critical habitat designation.

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Consideration of Impacts Under Section 4b2 of the Act Section 4b2 of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat.
The Secretary may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts.
In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factors to use and how much weight to give to any factor. We describe below the process
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that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.
Consideration of Economic Impacts Section 4b2 of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both with critical habitat and without critical habitat.
The without critical habitat scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat e.g., under the Federal listing as well as other Federal, State, and local regulations. Therefore, the baseline represents the costs of all efforts attributable to the listing of the species under the Act i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated. The with critical habitat scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary section 4b2 exclusion analysis.
For this particular designation, we developed an incremental effects memorandum IEM; Service 2021, entire considering the probable incremental economic impacts that may result from this proposed designation of
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critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the SSN DPS of fisher IEc 2021, entire. We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs i.e., absent critical habitat designation and includes any probable incremental economic impacts where land and water use may already be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. If the proposed critical habitat designation contains any unoccupied units, the screening analysis assesses whether those units require additional management or conservation efforts that may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM
constitute what we consider to be our draft economic analysis DEA of the proposed critical habitat designation for the SSN DPS of fisher; our DEA is summarized in the narrative below.
Executive Orders 12866 and 13563
direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative to the extent feasible and qualitative terms.
Consistent with the Executive Orders regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the
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