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Federal Register / Vol. 86, No. 199 / Tuesday, October 19, 2021 / Proposed Rules
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of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If we conduct an exclusion analysis because the agency provides a reasonably specific justification or because we decide to exercise the discretion to conduct an exclusion analysis, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to:
1 Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; 2 the importance of those implications; and 3 the degree to which the cited implications would be adversely affected in the absence of an exclusion.
In that circumstance, in conducting a discretionary section 4b2 exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.
Under section 4b2 of the Act, we also consider whether a nationalsecurity or homeland-security impact might exist on lands not owned or managed by DoD or DHS. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for the SSN DPS of fisher are not owned or managed by DoD or DHS. Therefore, we anticipate no impact on national security or homeland security. However, if through the public comment period we receive credible information regarding impacts on national security or homeland security from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will conduct a discretionary exclusion analysis to determine whether to exclude those areas 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 discussed above. Other relevant impacts may include, but are not limited to, impacts to Tribes, States, local governments, public health and safety, community interests, the environment such as increased risk of wildfire or pest and invasive species management, Federal lands, and conservation plans, agreements, or partnerships. To identify
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other relevant impacts that may affect the exclusion analysis, we consider a number of factors, including whether there are permitted conservation plans covering the species in the areasuch as HCPs, safe harbor agreements SHAs, or candidate conservation agreements with assurances CCAAsor whether there are non-permitted conservation agreements and partnerships that may be impaired by designation of, or exclusion from, critical habitat. In addition, we look at whether Tribal conservation plans or partnerships, Tribal resources, or government-togovernment relationships of the United States with Tribal entities may be affected by the designation. We also consider any State, local, public-health, community-interest, environmental, or social impacts that might occur because of the designation.
When analyzing other relevant impacts of including a particular area in a designation of critical habitat, we weigh those impacts relative to the conservation value of the particular area. To determine the conservation value of designating a particular area, we consider a number of factors, including, but not limited to, the additional regulatory benefits that the area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.
In the case of the SSN DPS of fisher, the benefits of critical habitat include public awareness of the presence of fishers and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for fishers due to protection from destruction or adverse modification of critical habitat. Continued implementation of an ongoing management plan that provides conservation equal to or more than the protections that results from a critical habitat designation would reduce those benefits of including that specific area in the critical habitat designation.
We evaluate the existence of a conservation plan when considering the benefits of inclusion. We consider a variety of factors, including, but not limited to, whether the plan is finalized;
how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether
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the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion.
If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
We are considering whether to exclude the following areas under section 4b2 of the Act from the final critical habitat designation for the SSN
DPS of fisher:
1 Unit 4: Southern California Edison; 10,254 ac 4,150 ha.
2 Unit 2: Tule River Indian Tribe of the Tule River Reservation, California;
16,246 ac 6,574 ha.
However, we specifically solicit comments on the inclusion or exclusion of such areas. In the paragraphs below, we provide a detailed analysis of our consideration of these lands for exclusion under section 4b2 of the Act.
Private or Other Non-Federal Conservation Plans or Agreements and Partnerships We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service, sometimes through the permitting process under Section 10 of the Act.
When we undertake a discretionary section 4b2 analysis, we evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. The factors we consider may differ, depending on
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