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Final Regulatory Flexability Analysis
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  • Description:
    For each rule an agency promulgates and does not certify as having no significant impact on a substantial number of small entities, the Regulatory Flexibility Act (RFA) (5 U.S.C. § 601-612) requires the agency to prepare and make available for public comment a final regulatory flexibility analysis (FRFA) that describes the impact of the rule on small businesses, nonprofit enterprises, local governments, and other small entities. The Endangered Species Act requires NOAA Fisheries to designate critical habitat for threatened and endangered species to the maximum extent prudent and determinable. Section 4(b)(2) of the ESA requires that critical habitat be designated “on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.” This section grants the Secretary [of Commerce] discretion to exclude any area from critical habitat if he determines “the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.” The Secretary's discretion is limited, as he may not exclude areas if it “will result in the extinction of the species.”
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