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Federal Register / Vol. 86, No. 136 / Tuesday, July 20, 2021 / Proposed Rules
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lands as critical habitat under section 4b2 of the Act. Comments should address the related benefits of including or excluding specific areas; whether the benefits of exclusion outweigh those of inclusion; and whether the exclusion will not result in the extinction of the species. Additionally, comments should address any probable economic, national security, or other relevant impacts of the designation on areas recommended for consideration for exclusion.
State Lands We also evaluated whether additional exclusions from the critical habitat designation under section 4b2 of the Act should be considered on State lands. In our December 4, 2012, critical habitat designation 77 FR 71876, we excluded State lands in Washington and California that were covered by HCPs and other conservation plans. In Oregon, State agencies are currently working on HCPs that will address State forest lands in western Oregon, including the Elliott State Forest managed by the Oregon Department of State Lands and other State forest lands in western Oregon managed by the Oregon Department of Forestry.
HCPs necessary in support of incidental take permits under section 10a1B of the Act provide for partnerships with non-Federal entities to minimize and mitigate impacts to listed species and their habitat. In some cases, as a result of their commitments in the HCPs, incidental take permittees agree to provide more conservation of the species and their habitats on private lands than designation of critical habitat would provide alone. We place great value on the partnerships that are developed during the preparation and implementation of HCPs.
When we undertake a discretionary section 4b2 exclusion analysis, we consider areas covered by an approved HCP, and generally exclude such areas from a designation of critical habitat if three conditions are met:
1 The permittee is properly implementing the HCP.
2 The species for which critical habitat is designated is a covered species in the HCP.
3 The HCP specifically addresses the habitat of the species for which critical habitat is being designated and meets the conservation needs of the species in the planning area.
The proposed State forest HCPs and any section 10a1B permits will not be completed prior to the publication of this document; thus, they do not yet fulfill the above criteria. As a result, we are not proposing additional State lands
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for exclusion from the critical habitat designation for the northern spotted owl. We may revisit consideration of section 4b2 exclusions on State lands if and when the HCPs have been adopted and we have issued section 10a1B permits.
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 believe 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 believe lists or tables would be useful, etc.
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 identified this proposed rule as a significant rule.
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 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.

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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 that 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 revised 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 consistent with 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
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