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53196 Federal Register / Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations additional requirements not already in place due to the species' listing. (59) Comment: The Service did not engage in a good faith effort to develop and collect information regarding the full range of economic impacts consistent with recent case law (New Mexico Cattlegrowers Association v. United States Fish and Wildlife Service, 248 F.3d 1277 (10 Circuit 2001) and Home Builders Association of Northern California v. United States Fish and Wildlife Service, 268 F. Supp. 2d 1197 (E.D. Cal. 2003)). Our Response: We believe the public was provided the opportunity to comment on all aspects of this designation and the associated documents (See response to comment 49 and "Previous Federal Action" section), and that this final rule and associated economic analysis and EA are consistent with current case law. The fact that this issue was raised during the public comment period reinforces our belief that we did provide "a good faith effort." (60) Comment: The final rule designating critical habitat must include an explanation of the cost/benefit analysis for both why an area was included and why an area was excluded. The economic analysis fails to acknowledge the benefits of protecting the owls (i.e., healthier watershed). One commenter also stated that economic benefits such as recreation and tourism dollars should be included. Our Response: We did not have specific, scientifically credible data related to the benefits of designating critical habitat for the owl on the lands that are being designated. Because of this lack of data, we were not able to conduct an economic benefits analysis as the commenter suggested. However, if this data were available we would consider it in our analysis. As we undertake the process of designating critical habitat for a species, we first evaluate lands defined by those physical and biological features essential to the conservation of the species within the geographical area occupied by the species for inclusion in the designation pursuant to section 3(5)(A) of the Act. Secondly, we evaluate lands defined by those features to assess whether they may require special management considerations or protection. Next we evaluate lands outside the geographical area occupied by the species to determine if any specific area is essential to the conservation of the species. The resulting lands in the designation are determined to be essential to the conservation of the species, for which justification for their inclusion and the potential benefits to the species from the designation are discussed throughout our proposed rule and this final rule. Accordingly, we believe that the biological and conservation benefits afforded the species by the inclusion of lands determined to be essential to the conservation of the species have been thoroughly explained. Pursuant to section 4(b)(2) of the Act, we are required to take into consideration the economic impact, National Security, and any other relevant impact of specifying any particular area as critical habitat. We also may exclude any area from critical habitat if we determine that the benefits of such exclusion outweighs the benefits of specifying such area as part of the critical habitat, providing that the failure to designate such area will not result in the extinction of the species. We use information from our economic analysis, or other sources such as public comments, management plans, etc., to conduct this analysis. For us to consider excluding an area from the designation, we are required to determine that the benefits of the exclusion outweighs the benefits (i.e., biological or conservation benefits) of including the specific area in the designation. This is not simply a cost/benefit analysis, however. This is a policy analysis, and can include consideration of the impacts of the designation, the benefits to the species of the designation as well as policy considerations such as National Security, Tribal relationships, impacts on conservation partnerships and other public policy concerns. This evaluation is done on a case -by -case basis for particular areas based on the best available scientific and commercial data. A discussion of this analysis and any resulting exclusions is in this final designation. (61) Comment: The Service should exclude Federal and Tribal lands that are currently covered by management plans for the owl. Failure to exclude areas from critical habitat that are subject to voluntary protection measures for the owl will undercut the attractiveness and usefulness of the full range of conservation tools and make management /conservation far less effective. Our Response: It has been our policy to recognize voluntary conservation efforts and support those programs and partnerships. As such we have excluded from the designation of critical habitat for the owl areas covered by conservation plans for that owl that have been determined to provide a conservation benefit to the owl and its habitat (See "Exclusions Under Section 4(b)(2)" section below). (62) Comment: The Service's economic analysis is too large in scope to evaluate those effects attributed solely to critical habitat because it analyzed all cost associated with 'owl conservation measures." It is not clear how the Service could attribute impacts either exclusively or coextensively to critical habitat under this framework. Our Response: The inclusion of economic costs related to listing and provisions of the Act, other than the critical habitat designation, have been quantified in the final economic analysis. This analysis includes co- extensive costs as well as costs related to the previous and current critical habitat designations. (63) Comment: The economic analysis does not explain why a 10 -year time period was selected. One commenter believes that the timeframe of ten years used in the analysis is too short and is inconsistent with other economic studies. Our Response: To produce credible results, the economic analysis must consider impacts that are reasonably foreseeable. Based on available data, a ten -year timeframe was most fitting for this analysis. Federal and Tribal land use management agencies affected by this designation generally do not have specific plans for projects beyond ten years; thus, forecasting beyond ten years would increase the subjectivity of estimating potential impacts in this case. In addition, with respect to the timber industry in this region, detailed regional forecasts of activity in this industry beyond ten years are limited. The 10 -year time horizon was also selected because the Recovery Plan is premised upon a similar time horizon. (64) Comment: The economic analysis severely overinflates the costs attributable to grazing and other potential impacts. Our Response: The commenter did not provide any data for us to consider and did not explain why he or she believes our estimates to be inadequate. Still, the economic analysis used the best information available to estimate potential impacts, while indicating that some of our assumptions were likely to be conservative and overstate effects. We understand that the public wants to know more about the kinds of costs section 7 consultations impose and frequently believes that critical habitat designation could require additional project modifications. Because of the potential uncertainty about the economic costs resulting from critical habitat designations, we believe it is reasonable to estimate the upper bounds of the cost of project modifications on the basis of the economic costs of