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53230 Federal Register /Vol. 69, No. 168 /Tuesday, August 31, 2004 /Rules and Regulations
<br />businesses that do not meet the
<br />definition of a small entity (e.g.,
<br />federally sponsored projects).
<br />In summary, we have considered
<br />whether this rule would result in a
<br />significant economic effect on a
<br />substantial number of small entities. We
<br />have concluded that this final
<br />designation of critical habitat for the
<br />owl would not affect a substantial
<br />number of small entities. Therefore, we
<br />are certifying that the designation of
<br />critical habitat for the owl will not have
<br />a significant economic impact on a
<br />substantial number of small entities,
<br />and a final regulatory flexibility analysis
<br />is not required.
<br />Small Business Regulatory Enforcement
<br />Fairness Act (5 U.S.C. 802(2))
<br />Under the Small Business Regulatory
<br />Enforcement Fairness Act (5 U.S.0 801
<br />et seq.), this designation of critical
<br />habitat for the owl is not considered to
<br />be a major rule. Our detailed assessment
<br />of the economic effects of this
<br />designation is described in the
<br />economic analysis. Based on the effects
<br />identified in our economic analysis, we
<br />believe that this rule will not have an
<br />effect on the economy of $100 million
<br />or more, will not cause a major increase
<br />in costs or prices for consumers, and
<br />will not have significant adverse effects
<br />on competition, employment,
<br />investment, productivity, innovation, or
<br />the ability of U.S. -based enterprises to
<br />compete with foreign -based enterprises,
<br />nor will the rule have a significant
<br />economic impact on a substantial
<br />number of small entities. Refer to the
<br />final economic analysis for additional
<br />discussion of the effects of this
<br />determination.
<br />Executive Order 13211
<br />On May 18, 2001, the President issued
<br />Executive Order 13211 on regulations
<br />that significantly affect energy supply,
<br />distribution, and use. Executive Order
<br />13211 requires agencies to prepare
<br />Statements of Energy Effects when
<br />undertaking certain actions. The
<br />purpose of this requirement is to ensure
<br />that all Federal agencies "appropriately
<br />weigh and consider the effects of the
<br />Federal Government's regulations on the
<br />supply, distribution, and use of energy.
<br />The OMB has provided guidance for
<br />implementing this Executive Order that
<br />outlines nine outcomes that may
<br />constitute "a significant adverse effect"
<br />when compared without the regulatory
<br />action under consideration. One of these
<br />criteria is relevant to this analysis —
<br />increases in the cost of energy
<br />distribution in excess of one percent.
<br />Based on our economic analysis of this
<br />designation of critical habitat for the
<br />owl, we conclude that the impact to
<br />energy distribution is not anticipated to
<br />exceed the one percent threshold. Please
<br />refer to the economic analysis where the
<br />potential impacts are reviewed.
<br />Therefore, this action is not a significant
<br />energy action and no Statement of
<br />Energy Effects is required.
<br />Unfunded Mandates Reform Act (2
<br />U.S.C. 1501 et seq.)
<br />In accordance with the Unfunded
<br />Mandates Reform Act (2 U.S.C. 1501),
<br />the Service makes the following
<br />findings:
<br />(a) This rule will not produce a
<br />Federal mandate. In general, a Federal
<br />mandate is a provision in legislation,
<br />statute or regulation that would impose
<br />an enforceable duty upon State, local,
<br />Tribal governments, or the private sector
<br />and includes both "Federal
<br />intergovernmental mandates" and
<br />"Federal private sector mandates."
<br />These terms are defined in 2 U.S.C.
<br />658(5) –(7). "Federal intergovernmental
<br />mandate" includes a regulation that
<br />"would impose an enforceable duty
<br />upon State, local, or Tribal
<br />„
<br />Federal
<br />destruction or adverse modification of
<br />critical habitat rests squarely on the
<br />Federal agency. Furthermore, to the
<br />extent that non - Federal entities are
<br />indirectly impacted because they
<br />receive Federal assistance or participate
<br />in a voluntary Federal aid program, the
<br />Unfunded Mandates Reform Act would
<br />not apply; nor would critical habitat
<br />shift the costs of the large entitlement
<br />programs listed above on to State
<br />governments.
<br />(b) We do not believe that this rule
<br />will significantly or uniquely affect
<br />small governments. This determination
<br />is based on information from the
<br />economic analysis conducted for this
<br />designation of critical habitat for the
<br />owl and the fact that critical habitat is
<br />only being designated on Federal lands.
<br />As such, a Small Government Agency
<br />Plan is not required.
<br />governments with two exceptions. It
<br />excludes "a condition of Federal
<br />Takings
<br />assistance." It also excludes "a duty
<br />In accordance with Executive Order
<br />arising from participation in a voluntary
<br />12630 ( "Government Actions and
<br />Federal program," unless the regulation
<br />Interference with Constitutionally
<br />"relates to a then- existing Federal
<br />Protected Private Property Rights "), we
<br />program under which $500,000,000 or
<br />have analyzed the potential takings
<br />more is provided annually to State,
<br />implications of designating critical
<br />local, and Tribal governments under
<br />habitat for the owl in a takings
<br />entitlement authority," if the provision
<br />implications assessment. The takings
<br />would "increase the stringency of
<br />implications assessment concludes that
<br />conditions of assistance" or "place caps
<br />this final designation of critical habitat
<br />upon, or otherwise decrease, the Federal
<br />for the owl does not pose significant
<br />Government's responsibility to provide
<br />takings implications.
<br />funding" and the State, local, or Tribal
<br />"lack
<br />Federalism
<br />governments authority" to adjust
<br />accordingly. (At the time of enactment,
<br />In accordance with Executive Order
<br />these entitlement programs were:
<br />13132, this rule does not have
<br />Medicaid; AFDC work programs; Child
<br />significant Federalism effects. A
<br />Nutrition; Food Stamps; Social Services
<br />Federalism assessment is not required.
<br />Block Grants; Vocational Rehabilitation
<br />In keeping with Department of the
<br />State Grants; Foster Care, Adoption
<br />Interior policy, the Service requested
<br />Assistance, and Independent Living;
<br />information from, and coordinated
<br />Family Support Welfare Services; and
<br />development of this critical habitat
<br />Child Support Enforcement.) "Federal
<br />designation with appropriate State
<br />private sector mandate" includes a
<br />resource agencies in New Mexico,
<br />regulation that "would impose an
<br />Arizona, Colorado, and Utah. The
<br />enforceable duty upon the private
<br />impact of the designation on State and
<br />sector, except (i) a condition of Federal
<br />local governments and their activities
<br />assistance; or (ii) a duty arising from
<br />was fully considered in the economic
<br />participation in a voluntary Federal
<br />analysis. As discussed above, the
<br />program
<br />Thy de g�nahon o�fcnhcal habitat �"
<br />designation of critical habitat for the
<br />owl would have little incremental
<br />does no impos i legauy,'b indmgduty =
<br />-'Impact on State and local governments
<br />on,no Fedraigovernment entities or
<br />and their activities.
<br />pnvate partie, Under the Act, the only
<br />regulatory effect is that Federal agencies
<br />Civil Justice Reform
<br />must ensure that their actions do not
<br />In accordance with Executive Order
<br />destroy or adversely modify critical
<br />12988, the Office of the Solicitor has
<br />habitat under section 7. While non-
<br />determined that the rule does not
<br />
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