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Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Proposed Rules or HCPs from this proposed critical habitat designation. Additionally, as described above, we are not considering excluding any particular areas on the basis of impacts to national security or economic impacts.
During the development of a final designation, we will consider all information currently available or received during the public comment period. If we receive credible information regarding the existence of a meaningful impact supporting a benefit of excluding any area, we will undertake an exclusion analysis and determine whether those areas should be excluded from the final critical habitat designation under authority of section 4b2 and our implementing regulations at 50 CFR 17.90. We may also exercise the discretion to undertake exclusion analyses for other areas as well.
Required Determinations Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
1 Be logically organized;
2 Use the active voice to address readers directly;
3 Use clear language rather than jargon;
4 Be divided into short sections and sentences; and 5 Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

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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 will review all significant rules. OIRA has determined that this rule is not significant.
Executive Order 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
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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 proposed 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., 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 if 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
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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 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 action agencies are directly subject to the specific regulatory requirement avoiding destruction and adverse modification imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small business entities.
Therefore, an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use Executive Order 13211
Executive Order 13211 Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our economic analysis, we did not find that this proposed critical habitat designation would significantly affect energy supplies, distribution, or use.

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