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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules adverse modification of critical habitat would be incorporated into the existing consultation process.
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., the difference between the jeopardy and adverse modification standards for the Penasco least chipmunks critical habitat. Because the designation of critical habitat for the Penasco least chipmunk was proposed concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which will result solely from the designation of critical habitat.
However, the following specific circumstances in this case help to inform our evaluation: 1 The essential physical and biological features identified for critical habitat are the same features essential for the life requisites of the species, and 2 any actions that would result in sufficient harm or harassment to constitute jeopardy to the Penasco least chipmunk would also likely adversely affect the essential physical and biological features of critical habitat. The IEM
outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. 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.
We have identified and delineated three proposed critical habitat units, totaling approximately 2,660 hectares 6,574 acres, two of which are currently occupied by the Penasco least chipmunk and one that is unoccupied but essential to the conservation of the subspecies. The two occupied units Units 1 and 3 are considered occupied year-round for the purposes of consultation based on current survey data. In the occupied area, any actions that may affect the species or its habitat would also affect designated 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 Penasco least chipmunk. While this additional analysis in the occupied critical habitat would require time and resources by both the Federal action agency and the Service, it is believed that, in most circumstances, these costs would
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predominantly be administrative in nature and would not be significant.
One of the proposed critical habitat units Unit 2 is unoccupied. No surveys for Penasco least chipmunk have been done in the unit. We assume any costs associated with this unit would be attributable to critical habitat rather than the listing of the species.
Federal agencies are the entities most likely to incur incremental costs associated with designating critical habitat, due to section 7 requirements.
We do not anticipate any costs to State or local agencies, or impacts on property values related to the publics perception of additional regulation, because we do not expect the designation of critical habitat for the Penasco least chipmunk to result in changes to New Mexico local regulations IEc 2019, p. 16.
At most, no more than two Penasco least chipmunk consultations two informal are anticipated in any given year IEc 2019, p. 8. Most of the proposed critical habitat occurs within Lincoln National Forest Wilderness Area, where little work and no commercial activities occur; it is also existing Mexican spotted owl critical habitat. In the past 3 years there have not been any section 7 consultations in this area. The estimated incremental costs of the total critical habitat designation for the Penasco least chipmunk in the first year are unlikely to exceed $5,000 2019 dollars IEc 2019, p. 9. Thus, the annual administrative burden would not reach $100 million.
As we stated earlier, we are soliciting data and comments from the public on the DEA and all aspects of the 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 received 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 impact or other relevant impact supporting a benefit of exclusion, we will conduct an exclusion analysis for the relevant area or areas. We may also otherwise decide to exercise the discretion to evaluate any other areas for possible exclusion. In addition, if we do conduct an exclusion analysis and we have received any information from experts in, or sources with firsthand knowledge about, impacts that are outside the scope of the Services
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expertise, for purposes of the exclusion analysis we will assign weights to those impacts consistent with the information from experts in, or sources with firsthand knowledge about, those impacts, 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 or Homeland Security Impacts Under section 4b2 of the Act, we consider whether there are lands where a national security impact might exist.
In preparing this proposal, we have determined that the lands adjacent to the proposed designation of critical habitat for Penasco least chipmunk are not owned or managed by the Department of Defense or Department of Homeland Security. We anticipate no impact on national security. However, during the development of a final designation we will consider any additional information received through the public comment period on the impacts of the proposed designation on national security or homeland security 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.
Consideration of Other Relevant Impacts Under section 4b2 of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements, or candidate conservation agreements with assurances, or whether there are nonpermitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of Tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with Tribal entities.
We also consider any social impacts that might occur because of the designation.
There are currently no active HCPs or other management plans for the Penasco least chipmunk. We anticipate no impact on current partnerships or HCPs from this proposed critical habitat designation.

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