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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations these authorities, lands have been retained by Indian tribes or have been set aside for tribal use. These lands are managed by Indian tribes in accordance with tribal goals and objectives within the framework of applicable treaties and laws. Executive Order E.O. 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the Federal Government in matters affecting tribal interests.
There is a broad array of activities on Indian lands that may trigger ESA
section 7 consultations. Indian lands are those defined in the Secretarial Order American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the ESA June 5, 1997, including: 1 Lands held in trust by the United States for the benefit of any Indian tribe; 2 land held in trust by the United States for any Indian tribe or individual subject to restrictions by the United States against alienation; 3 fee lands, either within or outside the reservation boundaries, owned by the tribal government; and 4
fee lands within the reservation boundaries owned by individual Indians.
In developing the proposed rule, we reviewed maps and did not identify any areas under consideration as coastal critical habitat that overlap with Indian lands, because the shoreward extent of the areas under consideration for designation is 20 ft 6.1 m water depth.
Based on this, we preliminarily found that there were no Indian lands subject to consideration for possible exclusion.
However, our preliminary assessment indicated that the following federally recognized tribes 83 FR 4235; January 30, 2018 have lands that may be in close proximity to areas under consideration for designation as critical habitat for Southern Resident killer whales, have usual and accustomed U&A fishing areas that overlap with critical habitat areas, or may otherwise be affected: Confederated Tribes of the Chehalis Reservation, Hoh Indian Tribe, Makah Indian Tribe, Quileute Tribe, Quinault Indian Nation, and Shoalwater Bay Indian Tribe in Washington;
Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians, Confederated Tribes of the Siletz Indians, and Coquille Indian Tribe in Oregon; and Cher-Ae Heights Indian Community of the Trinidad Rancheria, Hoopa Valley Tribe, Karuk Tribe, Big Valley Band of Pomo Indians, Tolowa Dee-Ni Nation, Wiyot Tribe, and Yurok Tribe in California. We also identified the non-federally recognized Wintu Tribe of Northern California as a tribal entity that may be affected by critical habitat designation.

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We contacted each of these tribes to solicit comments regarding Indian lands that may overlap and may warrant exclusion from critical habitat for Southern Resident killer whales. We also sought information from these tribes concerning other tribal activities that may be affected in areas other than tribal lands e.g., tribal fisheries in usual and accustomed coastal marine areas.
We received responses from two tribes in Washington and California.
The tribes were primarily concerned with the potential impact of the critical habitat designation on tribal fisheries, particularly within U&A fishing areas located in coastal marine waters. As described in the DEA and FEA IEc 2019, 2021 while it is possible that the critical habitat designation could result in recommendations for changes in fishery management, we consider this unlikely, given the existing consideration of fisheries impacts on Southern Resident killer whales and their prey including ESA-listed salmon in ESA section 7 consultations in the jeopardy analysis and the implementation of management strategies and actions for the conservation and recovery of these species IEc 2019, 2021. However, we will continue to coordinate and consult with potentially affected tribes throughout the rulemaking process.
Exclusion of Areas Under Section 4b2 of the ESA
As stated previously, the Secretary may exclude an area from designation if he determines the benefits of exclusion outweigh the benefits of designation based on the best available scientific and commercial data. This discretion is limited, however, in that the Secretary may not exclude an area from designation if exclusion will result in the extinction of the species ESA
section 4b2.
We decided to exercise the discretion delegated to us by the Secretary to conduct an exclusion analysis and balance the benefits of designation against the benefits of exclusion.
Benefits of critical habitat designation are those conservation benefits to the species, while benefits of exclusion result from avoiding the impacts of designation identified above. Below we describe the benefits of designation, then further consider and weigh the benefits of designation and exclusion based on economic and national security impacts. As discussed above, we preliminarily found that there were no Indian lands subject to consideration for possible exclusion. We have broad discretion as to which factors to consider as benefits of designation and
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benefits of exclusion, and what weight to assign to each factornothing in the ESA, its implementing regulations, or our Policy Regarding Implementation of Section 4b2 of the ESA 4b2
Policy limits this discretion 50 CFR
424.19; 81 FR 7226, February 11, 2016.
We also relied on a qualitative costbenefit analysis, as described in Office of Management and Budget OMB
Circular A4.
Benefits of Designation The primary benefit of designation is the protection afforded under section 7
of the ESA, requiring all Federal agencies to ensure their actions are not likely to destroy or adversely modify designated critical habitat. This is in addition to the requirement that all Federal agencies ensure their actions are not likely to jeopardize the continued existence of the species. The revision to the critical habitat designation is also expected to provide benefits by informing the entities engaged in section 7 consultations and the general public about the status of Southern Resident killer whales, including the coastal areas and features or habitat important to whales conservation.
Other forms of benefits that may be attributed to the conservation and recovery of Southern Resident killer whales although not specifically attributed to the designation of critical habitat, include use benefits e.g., for wildlife viewing, non-use or passive use benefits e.g., existence, option, and bequest values, and ancillary ecosystem service benefits e.g., water quality improvements and enhanced habitat conditions for other marine and coastal species. Some species, including Southern Resident killer whales, also have significant spiritual and cultural value to particular communities, such as tribes. Such values are generally not expressed in monetary terms.
These benefits are not directly comparable to the costs of designation for purposes of conducting the section 4b2 analysis. Ideally, benefits and costs should be compared on equal terms in the same units. However, there is insufficient information regarding the extent of the benefits and the associated values to monetize all of these benefits.
Because we could not quantify or monetize all of the benefits of revising the critical habitat designation for Southern Resident killer whale discussed above, we qualitatively described the conservation value of the areas to the DPS.
As discussed in Appendix B of the Final ESA Section 4b2 Report NMFS
2021b, we considered categories of information to characterize Southern
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