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Federal Register / Vol. 86, No. 199 / Tuesday, October 19, 2021 / Proposed Rules the best scientific data available.
Further, our Policy on Information Standards Under the Endangered Species Act published in the Federal Register on July 1, 1994 59 FR 34271, the Information Quality Act section 515
of the Treasury and General Government Appropriations Act for Fiscal Year 2001 Pub. L. 106554; H.R.
5658, and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from a species status assessment SSA report and information developed during the listing process for the species; however, for this species, because the SSA
framework was not yet available, we applied a slightly different framework using the 2016 species report and the analysis and information presented in the final listing rule 85 FR 29532; May 15, 2020. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts opinions or personal knowledge.
As the regulatory definition of habitat reflects 50 CFR 424.02, habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: 1
Conservation actions implemented under section 7a1 of the Act; 2
regulatory protections afforded by the requirement in section 7a2 of the Act for Federal agencies to ensure their
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actions are not likely to jeopardize the continued existence of any endangered or threatened species; and 3 the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species.
Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans HCPs, or other species conservation planning efforts if new information available at the time of those planning efforts calls for a different outcome.
Prudency Determination Section 4a3 of the Act, as amended, and implementing regulations 50 CFR 424.12 require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations 50 CFR 424.12a1 state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:
i The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;
ii The present or threatened destruction, modification, or curtailment of a species habitat or range is not a threat to the species, or threats to the species habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7a2 of the Act;
iii Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;
iv No areas meet the definition of critical habitat; or v The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.
There is currently no imminent threat of overutilization for commercial, recreational, scientific, or educational purposes see 16 U.S.C. 1533a1B
identified for the SSN DPS of fisher, and identification and mapping of critical habitat is not expected to initiate any such threat. Threats of taking or other
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human activity are not expected to increase due to the identification of critical habitat; habitat impacts are a threat to the species, as noted in the final listing determination for the SSN
DPS of fisher 85 FR 29532; May 15, 2020, and we stated that these effects are from causes that can be addressed through management actions resulting from consultations under section 7a2
of the Act. The species occurs solely within the United States, and available habitat, particularly those areas that meet the definition of critical habitat, provides significant conservation value.
Overall, our analysis of the best available scientific and commercial information indicates there are areas within the range of the DPS that meet the definition of critical habitat.
Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12a1 have been met and because the Secretary has not identified other circumstances for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat for the SSN DPS of fisher is prudent.
Critical Habitat Determinability Having determined that designation is prudent, under section 4a3 of the Act we must find whether critical habitat for the SSN DPS of fisher is determinable.
Our regulations at 50 CFR 424.12a2
state that critical habitat is not determinable when one or both of the following situations exist:
i Data sufficient to perform required analyses are lacking; or ii The biological needs of the species are not sufficiently well known to identify any area that meets the definition of critical habitat.
When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation 16 U.S.C.
1533b6Cii.
We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where the species is located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the SSN DPS of fisher.
Physical or Biological Features Essential to the Conservation of the Species In accordance with section 35Ai of the Act and regulations at 50 CFR
424.12b, in determining which areas we will designate critical habitat from within the geographical area occupied
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