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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations comment, we agree that those costs identified in the report as potentially resulting from the critical habitat expansion relative to USACE projects may include projects in the Sacramento District. Because NMFS does not anticipate any changes to the management of USACE permitted or implemented activities, these costs are limited to the administrative costs to NMFS, the USACE, and third party permit applicants of participating in future section 7 consultations. Section 2.10 of the FEA IEc 2021 includes the Sacramento District in the list of USACE
districts that manage activities that may be affected by the expansion may have administrative costs associated with potential future consultations.
Comment 15: Multiple commenters stated that the economic analysis did not adequately consider the potential costs of the proposed critical habitat designation on fisheries. One commenter noted that nearly all costs identified in the economic analysis are internal costs to NMFS instead of thirdparty costs to the fishing industry.
Commenters acknowledged that NMFS
considers additional conservation efforts as a result of critical habitat designation to be unlikely but noted that if this assumption proves false, there could be significant economic impacts to fisheries. The commenters suggested that the economic analysis should provide a full range of potential economic impacts to fisheries, including an analysis of potential fisheries closures. The commenters suggested that such analysis would better inform the fishing industry, as well as better allow NMFS to weigh potential costs versus benefits of the designation.
Response: The DEA considered the potential for the expansion of critical habitat to result in additional conservation efforts, including fishery closures, for commercial and recreational fisheries see section 2.3.
At the time of DEA development, NMFS
was not able to envision a scenario in which the expansion of critical habitat for Southern Resident killer whales would result in changes to management of salmon fisheries or fisheries with incidental catch of salmon. This conclusion was due to a number of factors including the ESA listing and consequent need for recovery of many salmon populations themselves, existing consideration of fishery impacts and prey availability relative to the potential for jeopardy to Southern Resident killer whales even absent critical habitat expansion, and experience over the past 15 years implementing the inland waters critical habitat for Southern Resident killer whales, which has not
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resulted in fishery management changes beyond those considered during ESA
consultation on prey effects relative to jeopardy. Since that time, there has been substantial attention to Southern Resident killer whale conservation and recognition of the link between their recovery and salmon abundance, suggesting that numerous factors outside of the potential critical habitat expansion will continue to drive policy decisions related to management of salmon fisheries. As a result, NMFS is unable to envision a scenario in which the expanded designation of critical habitat will result in changes to fishery management. Given this, we have not quantified costs associated with hypothetical management actions that are not anticipated outcomes of this critical habitat rule. Quantified costs are thus limited to those administrative costs incurred as a result of section 7
consultation on fishery management plans.
The administrative costs quantified in the DEA and FEA are not exclusive to NMFS. As shown in Exhibit 13 of the FEA, the analysis estimates administrative costs for each forecasted consultation to NMFS, a Federal action agency, and a third party IEc 2021. A
third party to consultation could be a private company e.g., an applicant for a Federal permit, a local or state government, or some other entity. In the case of fisheries, administrative costs are incurred through the process of consultation on fishery management plans. Although private third parties such as individual fishermen are not generally involved in this process, administrative effort on the part of one or more third parties associated with participation in that process is included in the estimated costs of consultation.
Comment 16: Numerous commenters stressed the need for the economic analysis to consider the value of and potential impacts to fisheries and associated communities in California, Oregon, and Washington. These commenters stated that the critical habitat designation could harm the livelihoods of fishermen and coastal communities all along the West Coast.
Response: The FEA IEc 2021
recognizes the economic value of fisheries to communities in Washington, Oregon, and California IEc 2021, section 2.3.1. However, the critical habitat designation is unlikely to result in additional conservation efforts due to baseline protections associated with the ESA-listing status of both the killer whales and salmon, i.e., due to the need to consider the potential for fisheries to jeopardize the species even without a critical habitat designation. As a result,
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we conclude that the rule will not have economic impacts on fishing activity beyond administrative costs associated with section 7 consultation on fishery management plans.
Comment 17: One commenter expressed the opinion that the economic analysis does not account for certain types of economic costs of the designation to the fishing industry, including delays associated with consultation and litigation. The commenter describes that additional consultations and/or litigation associated with the final rule will result in costs to NMFS that have not been accounted for such as staff resources that are required to administer consultations and/or litigation associated with the final rule.
Consultation requirements and litigation could result in costs to the industry, particularly if it results in other important actions being delayed because of this rule.
Response: The administrative time and resources associated with NMFS
participation in consultations resulting from the critical habitat expansion, as well as participation of other Federal agencies and third parties to consultations, are explicitly included in the administrative costs quantified in the FEA IEc 2021. It would be speculative to estimate costs associated with delays in management actions due to consultation requirements absent data that specifies the nature, extent, and duration of these types of delays, particularly in light of the fact that NMFS does not anticipate that the outcome of consultations would change as a result of the critical habitat expansion.
While potential exists for third party lawsuits to result from critical habitat designation, the likelihood, timing, and outcome of such lawsuits are uncertain.
While critical habitat designation may stimulate additional legal actions, data do not exist to reliably estimate impacts.
That is, estimating the number, scope, and timing of potential legal challenges would require significant speculation.
Furthermore, litigation risk exists regardless of the critical habitat designation given the existing protections already afforded the whales under the MMPA and ESA.
National Security Impacts Comment 18: Multiple commenters, including the Washington Department of Fish and Wildlife, expressed opposition to the proposed exclusions of the QRS off the coast of Washington and the associated 10-km buffer around this area. Several commenters stated that the proposed exclusion was overly
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