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Federal Register / Vol. 86, No. 199 / Tuesday, October 19, 2021 / Proposed Rules
SSN DPS of fisher, first we identified, in the IEM dated April 29, 2021 Service 2021, entire, probable incremental economic impacts associated with the following categories of activities:
Development, fire management, forestry, hydropower, recreation, tourism, transportation, and conservation/
restoration. We considered each industry or category individually.
Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. Because the species is already listed, in areas where the SSN DPS of fisher is present, Federal agencies are required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species.
When we finalize this proposed critical habitat designation, our consultations would also include an evaluation of measures to avoid the destruction or adverse modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation i.e., difference between the jeopardy and adverse modification standards for the SSN DPS of fishers critical habitat. The following specific circumstances help to inform our evaluation: 1 The essential physical and biological feature identified for critical habitat i.e., denning habitat with intermixed dispersal and foraging areas is the most important feature essential for the life requisites of the species, and 2 any actions that would result in sufficient adverse effect to the essential physical and biological feature of critical habitat would also constitute jeopardy to fishers. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for the SSN DPS of fisher. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat.
The proposed critical habitat designation for the SSN DPS of fisher includes six critical habitat units including Unit 3, which is subdivided into three subunits totaling 554,454 ac 224,379 ha, all of which were occupied by fishers at the time of listing, and are currently occupied. Any actions that may affect the species or its
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habitat would also affect critical habitat, and it is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the SSN DPS of fisher.
Therefore, the proposed critical habitat designation is expected to result in only administrative costs. While additional analysis will require time and resources by both the Federal action agency and the Service, it is believed that, in most circumstances, these costs would predominantly be administrative in nature and would not be significant.
The additional administrative effort i.e., consideration of adverse modification during the consultation process includes an annual estimate of 8 formal consultations, 52 informal consultations, 2 programmatic consultations, and 4 requests for technical assistance. Our analysis forecasts no incremental costs associated with project modifications that would involve additional conservation efforts for the species. The incremental costs for each programmatic, formal, informal, and technical assistance effort are estimated to be $5,300 formal consultation, $2,600 informal consultation, $9,800
programmatic consultation, and $420
technical assistance. Considering adverse modification of fisher critical habitat during section 7 consultation will result in a total annual incremental cost of less than approximately $179,300 2021 dollars per year for the fisher IEc 2021, Exhibit 5; therefore, the annual administrative burden is unlikely to generate costs exceeding $100 million in a single year i.e., the threshold for an economically significant rule under Executive Order 12866.
We are soliciting data and comments from the public on the DEA discussed above, as well as on all aspects of this proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the DEA
and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4b2 and our implementing regulations at 50 CFR 17.90. If we receive credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion, we will conduct an exclusion analysis for the relevant area or areas. We may also exercise the
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discretion to evaluate any other particular areas for possible exclusion.
Furthermore, when we conduct an exclusion analysis based on impacts identified by experts in, or sources with firsthand knowledge about, impacts that are outside the scope of the Services expertise, we will give weight to those impacts consistent with the expert or firsthand information unless we have rebutting information. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
Consideration of National Security Impacts Section 4a3Bi of the Act may not cover all DoD lands or areas that pose potential national-security concerns e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered. If a particular area is not covered under section 4a3Bi, then national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of critical habitat. However, the Service must still consider impacts on national security, including homeland security, on those lands or areas not covered by section 4a3Bi, because section 4b2 requires the Service to consider those impacts whenever it designates critical habitat. Accordingly, if DoD, Department of Homeland Security DHS, or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns, or we have otherwise identified national-security or homeland-security impacts from designating particular areas as critical habitat, we generally have reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homelandsecurity impacts, we must conduct an exclusion analysis if the Federal requester provides credible information, including a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7a2

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