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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules
any particular area as critical habitat.
The Secretary may exclude an area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless we determine, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face and 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 that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.
Lands owned by the Mescalero Apache Tribe are included in this critical habitat proposal. We are considering these lands for exclusion from critical habitat see Exclusions, below. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information we obtain during the comment period and information about the economic impacts of the designation. Accordingly, we have prepared a draft economic analysis DEA concerning the proposed critical habitat designation, which is available for review and comment see ADDRESSES, above.
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
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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. The baseline, therefore, 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 considering the probable incremental economic impacts that may result from this proposed designation of 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 Penasco least chipmunk Industrial Economics, Incorporated IEc 2019.
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 the 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 probable economic impacts where land and water use may 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 there are any unoccupied units in the proposed critical habitat designation, the
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screening analysis assesses whether any additional management or conservation efforts may incur incremental economic impacts. This screening analysis, combined with the information contained in our IEM, is what we consider our draft economic analysis DEA of the proposed critical habitat designation for the Penasco least chipmunk and is summarized in the narrative below.
Executive Orders E.O.s 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 E.O.
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 Penasco least chipmunk, first we identified, in the IEM dated July 2019, probable incremental economic impacts associated with certain activities. These activities include 1 management of the Ski Apache Resort, to include maintaining: ski runs or recreational paths that are clear of trees, existing roads through grading, and facilities that include structures and features for ski lifts, the gondola, and zip line permitted by the U.S. Forest Service;
and 2 road management, maintenance, and new construction U.S. Forest Service. 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 affects only activities conducted, funded, permitted, or authorized by Federal agencies. If we list the species, in areas where the Penasco least chipmunk is present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If, when we list the species, we also finalize this proposed critical habitat designation, consultations to avoid the destruction or
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