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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Rules and Regulations
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benefits of specifying such area as part of the critical habitat, unless he determines, 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 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. On December 18, 2020, we published a final rule in the Federal Register 85 FR 82376 revising portions of our regulations pertaining to exclusions of critical habitat. These final regulations became effective on January 19, 2021 and apply to critical habitat rules for which a proposed rule was published after January 19, 2021.
Consequently, these new regulations do not apply to this final rule.
When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation;
the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan.
In the case of the Suwannee moccasinshell, the benefits of critical habitat include public awareness of the presence of the species and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the Suwannee moccasinshell due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies. Additionally, continued implementation of an ongoing management plan that provides equal to or more conservation than a critical habitat designation would reduce the benefits of including that specific area in the critical habitat designation.
We describe below the process 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
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uses or activities for the benefit of the species and its habitat within the designated areas. 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 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. 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 an optional section 4b2 exclusion analysis.
For this designation, we developed an incremental effects memorandum IEM
considering the probable incremental economic impacts that may result from this 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 Industrial Economics 2020, entire. The purpose of the screening analysis is to filter out the geographic areas in which the critical habitat designation is unlikely to result in probable 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. The
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screening analysis filters out particular areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. 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. The screening analysis also assesses whether units unoccupied by the species may require additional management or conservation efforts as a result of the critical habitat designation, and thus may incur incremental economic impacts. This screening analysis, combined with the information contained in our IEM, constitute our economic analysis of the critical habitat designation for the Suwannee moccasinshell and 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 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 designation of critical habitat for the Suwannee moccasinshell, first we identified, in the IEM dated June 30, 2016, probable incremental economic impacts associated with the following categories of activities: 1 Groundwater pumping; 2 agriculture; 3 mining; 4
grazing; 5 discharge of chemical pollutants; 6 roadway and bridge construction; 7 in-stream dams and diversions; 8 dredging; 9 commercial or residential development; 10 timber harvest; and 11 removal of large inchannel logs. We considered each industry or category individually.
Additionally, we considered whether these activities would have any Federal involvement.
Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, the designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the Suwannee moccasinshell is present, Federal
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