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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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 will be directly regulated by this 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 will be directly regulated by this rulemaking, the Service certifies that this critical habitat designation will not have a significant economic impact on a substantial number of small entities and a regulatory flexibility analysis is not required.

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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. OMB
has provided guidance for implementing this E.O. that outlines nine outcomes that may constitute a significant adverse effect when compared to not taking the regulatory action under consideration. The economic analysis finds that none of these criteria is relevant to this analysis.
Thus, based on information in the economic analysis, energy-related impacts associated with Carolina madtom or Neuse River waterdog conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act 2
U.S.C. 1501 et seq.
In accordance with the Unfunded Mandates Reform Act 2 U.S.C. 1501 et seq., we make the following findings:
1 This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both Federal intergovernmental mandates and Federal private sector mandates.
These terms are defined in 2 U.S.C.
65857. Federal intergovernmental mandate includes a regulation that would impose an enforceable duty upon State, local, or tribal governments
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with two exceptions. It excludes a condition of Federal assistance. It also excludes a duty arising from participation in a voluntary Federal program, unless the regulation relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority, if the provision would increase the stringency of conditions of assistance or place caps upon, or otherwise decrease, the Federal Governments responsibility to provide funding, and the State, local, or tribal governments lack authority to adjust accordingly. At the time of enactment, these entitlement programs were:
Medicaid; Aid to Families with Dependent Children work programs;
Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. Federal private sector mandate includes a regulation that would impose an enforceable duty upon the private sector, except i a condition of Federal assistance or ii a duty arising from participation in a voluntary Federal program.
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While nonFederal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act does not apply, nor does critical habitat shift the costs of the large entitlement programs listed above onto State governments.
2 We do not believe that this rule will significantly or uniquely affect small governments because most of the lands adjacent to the streams being designated as critical habitat are owned by private landowners. These entities do not fit the definition of small governmental jurisdiction. The 148
miles 238 km for the Neuse River
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waterdog and 91 miles 146 km for the Carolina madtom of riparian habitat owned by Federal, State, or local governments that we are designating as critical habitat in this rule are either lands managed for conservation or lands already developed. Consequently, we do not believe that the critical habitat designation will significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
TakingsExecutive Order 12630
In accordance with E.O. 12630
Government Actions and Interference with Constitutionally Protected Private Property Rights, we have analyzed the potential takings implications of designating critical habitat for the Carolina madtom and Neuse River waterdog in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment concludes that the designations of critical habitat for Carolina madtom and Neuse River waterdog do not pose significant takings implications for lands within or affected by the designation.
FederalismExecutive Order 13132
In accordance with E.O. 13132
Federalism, this rule does not have significant Federalism effects. A
federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of the critical habitat designation with, the appropriate State resource agencies. We did not receive comments from the States. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local
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