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Federal Register / Vol. 86, No. 170 / Tuesday, September 7, 2021 / Proposed Rules
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in our evaluation of potential economic impacts, we did not find that this proposed 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.
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 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 non-

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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 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 would not apply, nor would 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 the government lands being proposed for critical habitat designation are owned by the Federal Government, including the U.S. Coast Guard DHS, U.S. Army Corps of Engineers DoD, NOAA, and FBP; or are State or local governments such as the State of Florida, and MiamiDade County. None of these government entities fit the definition of small governmental jurisdiction. 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 designating critical habitat for the Miami tiger beetle 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 the proposed designation of critical habitat for the Miami tiger beetle and concludes that, if adopted, this designation of critical habitat does not pose significant
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takings implications for lands within or affected by the designation.
FederalismExecutive Order 13132
In accordance with E.O. 13132
Federalism, this proposed 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 this proposed critical habitat designation with, appropriate State resource agencies. 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 governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7
consultations to occur.
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7a2 of the Act would be required. 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 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.
Civil Justice ReformExecutive Order 12988
In accordance with Executive Order 12988 Civil Justice Reform, the Office of the Solicitor has determined that the rule would not unduly burden the judicial system and that it meets the requirements of sections 3a and 3b2
of the Order. We have proposed
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