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Federal Register / Vol. 86, No. 136 / Tuesday, July 20, 2021 / Proposed Rules 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. It follows 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, this revised critical habitat designation will not have a significant economic impact on a substantial number of small entities. Additionally, in this document, we are proposing to remove areas from the northern spotted owls critical habitat designation, thus reducing regulatory impacts for affected Federal agencies.
In summary, we have considered whether the proposed revised 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, this proposed revised 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.

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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. In our economic analysis for the December 4, 2012, revised critical habitat designation for the northern spotted owl 77 FR 71876, we did not find that the critical habitat designation would significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

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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 finding:
1 This proposed rule would 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 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 proposed revised 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 of a critical habitat designation is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7.
While non-Federal 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 affected by the designation of critical habitat, the legally binding duty to avoid
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destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly affected by a designation decision because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would such a decision shift the costs of the large entitlement programs listed above onto State governments.
Again, the proposed decision here would remove areas from designation.
2 We do not believe that this rule would significantly or uniquely affect small governments because we are proposing only exclusions from the northern spotted owls critical habitat designation; we are not proposing to designate additional lands as critical habitat for the species. Therefore, 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 revising designated critical habitat for the northern spotted owl 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 has been completed for this proposed revision of the designation of critical habitat for the northern spotted owl, and it concludes that, if adopted, this revised designation of critical habitat does not pose significant takings implications for lands within or affected by the designation. Again, the proposed decision here would remove areas from designation.
FederalismExecutive Order 13132
In accordance with E.O. 13132
Federalism, this proposed rule does not have significant federalism effects.

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