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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations Secretary is not exercising her discretion to exclude any areas from this designation of critical habitat for the Carolina madtom or Neuse River waterdog based on economic impacts. A
copy of the IEM and screening analysis with supporting documents may be obtained by contacting the Raleigh Ecological Services Field Office see ADDRESSES or by downloading from the internet at http www.regulations.gov.

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Exclusions Based on Impacts on National Security and Homeland Security Section 4a3Bi of the Act see Exemptions, above may not cover all DoD lands or areas that pose potential national-security concerns e.g., a DoD
installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered. If a particular area is not covered under section 4a3Bi, national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of critical habitat.
Nevertheless, when designating critical habitat under section 4b2, the Service must consider impacts on national security, including homeland security, on lands or areas not covered by section 4a3Bi. Accordingly, we will always consider for exclusion from the designation areas for which DoD, Department of Homeland Security, or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns. We have determined that, other than the land exempted under section 4a3Bi of the Act based upon the existence of an approved INRMP see Exemptions, above, the lands within the designation of critical habitat for Carolina madtom or Neuse River waterdog are not owned or managed by the DoD or Department of Homeland Security, and, therefore, we anticipate no impact on national security. Consequently, the Secretary is not exercising her discretion to exclude any areas from the final designation based on impacts on national security.
Exclusions Based on 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. We consider a number of factors including whether there are permitted conservation plans covering the species in the area such as habitat conservation plans HCPs, safe harbor agreements, or candidate conservation agreements with assurances, or whether there are non-

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permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of tribal conservation plans and partnerships, and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation.
In preparing this final rule, we determined that there are currently no permitted conservation plans or other non-permitted conservation agreements or partnerships for the Carolina madtom or Neuse River waterdog, and the final critical habitat designations do not include any Tribal lands or trust resources. We anticipate no impact on Tribal lands, partnerships, or permitted or non-permitted plans or agreements from this critical habitat designation.
Accordingly, the Secretary is not exercising her discretion to exclude any areas from the final designation based on other relevant impacts.
Required Determinations Regulatory Planning and Review Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and Regulatory Affairs OIRA in the Office of Management and Budget OMB will review all significant rules. OIRA has determined that this rule is not significant.
Executive Order E.O. 13563
reaffirms the principles of E.O. 12866
while calling for improvements in the nations regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Regulatory Flexibility Act 5 U.S.C. 601
et seq.
Under the Regulatory Flexibility Act RFA; 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996
SBREFA; 5 U.S.C. 801 et seq.,
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whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities i.e., small businesses, small organizations, and small government jurisdictions. However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA
to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations;
small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses 13 CFR 121.201. Small businesses include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5
million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine whether potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firms business operations.
Under the RFA, as amended, and as understood in light of recent court decisions, Federal agencies are required to evaluate only the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat.
Therefore, under section 7, only Federal
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