Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace for Edward F. Knapp State Park, Montpelier, VT, to support IFR operations in the area.

The FAA published a notice of proposed rulemaking in the Federal Register (87 FR 21821, April 13, 2022) for Docket No. FAA-2022-0376 to amend Class E surface airspace and Class E airspace extending upward from 700 feet above the surface for Edward F. Knapp State Park, Montpelier, VT.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in Paragraphs 6002 and 6005, respectively, of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic routes, and reporting points.

The FAA is amending 14 CFR part 71 by amending Class E surface airspace and Class E airspace extending upward from 700 feet above the surface at Edward F. Knapp State Park, Montpelier, VT, due to the decommissioning of the Mount Mansfield NDB and cancellation of associated approaches. This action amends the north and south extensions, and eliminates the southwest extension. This action also removes the city name from the descriptions, and updates the airport's geographic coordinates to coincide with the FAA's database. In addition, this action removes all navigational aids from the Class E5 description, as they are not necessary in defining the airspace.

Class E airspace designations are published in Paragraphs 6002 and 6005, respectively, of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is minimal. Since this is a routine matter that only affects air traffic procedures an air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a.

This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code (U.S.C.). Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart i, Section 40103, Sovereignty and Use of Airspace. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would modify Class E airspace at Coeur D'Alene—Pappy Boyington Field, ID, to support IFR operations at the airport.

The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register for Docket No. FAA-2022-0253 (87 FR 21586; April 12, 2022) to modify the Class E surface airspace, and the Class E airspace extending upward from 700 feet above the surface at Coeur D'Alene—Pappy Boyington Field, ID. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E2 and Class E5 airspace designations are published in paragraphs 6002 and 6005, respectively, of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending 14 CFR part 71 by modifying Class E surface airspace and Class E airspace extending upward from 700 feet above the surface at Coeur D'Alene—Pappy Boyington Field, ID.

The area north of the airport requires additional airspace to properly contain departures due to rising terrain adjoining the Class E surface area in the northeast. The FAA is widening and extending both the Class E surface area and Class E airspace extending upward from 700 feet above the surface to properly contain departures to points 700 feet above the surface and 1,200 feet above the surface, respectively.

Furthermore, the FAA is modifying the Class E airspace south of the airport. Both the current southern extension to the Class E surface area and the Class E airspace extending upward from 700 feet require modification to properly contain the 1,000 foot and 1,500 foot points of the RNAV GPS RWY 2 IAP, respectively.

Additionally, the FAA is modifying the Class E airspace extending upward from 700 feet west of the airport to better contain the 1,500 foot point of the RNAV GPS RWY 6 IAP, and to account for rising terrain west of the airport.

Finally, the FAA is making administrative changes to the current legal descriptions. The Class E airspace extending from 700 feet above the surface is defined on line 1 of the current description to be located in “WA” State, and requires an amendment to show the correct State, annotated as “ID.” Additionally, the legal description of the Class E airspace defined as a surface area uses the phrase “Notice to Airmen.” This is amended to read “Notice to Air Missions” to match the FAA's current definition of “NOTAM.”

Class E2 and E5 airspace designations are published in paragraphs 6002 and 6005, respectively, of FAA Order JO 7400.11F, dated August 10, 2021, and became effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11 is published annually and becomes effective on September 15.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial, and unlikely to result in adverse or negative comments. It therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory policies and procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.

In consideration of the foregoing, the FAA amends 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it removes Class E airspace extending upward from 700 feet above the surface at Stroudsburg-Pocono Airport, East Stroudsburg, PA, due to the closing of the airport.

The FAA published a notice of proposed rulemaking in the Federal Register (87 FR 20793, April 8, 2022) for Docket No. FAA-2022-0332 to remove Class E airspace extending upward from 700 feet above the surface at Stroudsburg-Pocono Airport, East Stroudsburg, PA.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic routes, and reporting points.

The FAA is amending 14 CFR part 71 by removing Class E airspace extending upward from 700 feet above the surface at Stroudsburg-Pocono Airport, East Stroudsburg, PA, as the airport has closed. Therefore, the airspace is no longer necessary. This action enhances the safety and management of controlled airspace within the national airspace system.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the FAA Order JO 7400.11.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is minimal. Since this is a routine matter that only affects air traffic procedures an air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

The FAA published a final rule in the Federal Register (87 FR 32982; June 1, 2022) for Docket No. FAA-2022-0041, which established Class E airspace beginning at 700 feet above the surface at Limon Municipal Airport, CO. The effective date listed in the final rule was incorrect. The final rule stated the effective date of 0901 UTC, July 14, 2022. However, the final rule was submitted too late to be effective on July 14, 2022, and should have listed the effective date as 0901 UTC, September 8, 2022. This action corrects this error.

The Class E5 airspace designation in this document is published in paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11.

Accordingly, pursuant to the authority delegated to the FAA, Establishment of Class E airspace; Limon Municipal Airport, CO, published in the Federal Register of June 1, 2022 (87 FR 32982), FR Doc. 2022-11586, is corrected as follows:

1. On page 32982, in the third column, beginning on line 18, DATES is corrected to read:

History

The FAA published a final rule in the Federal Register (87 FR 32981; June 1, 2022) for Docket No. FAA-2022-0030, which modified the Class E surface airspace, removed Class E airspace designated as an extension to Class D and E surface areas, and modified Class E airspace beginning at 700 feet above the surface at Sitka Rocky Gutierrez Airport, AK. Subsequent to publication, the FAA identified that the effective date listed in the final rule was incorrect. The final rule stated the effective date of 0901 UTC, July 14, 2022. However, the final rule was submitted too late to be effective on July 14, 2022, and should have listed the effective date as 0901 UTC, September 8, 2022. This action corrects the error.

Class E2, Class E4, and Class E5 airspace designations are published in paragraphs 6002, 6004, and 6005, respectively, of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

Accordingly, pursuant to the authority delegated to the FAA, Modification of Class E airspace, and Revocation of Class E airspace; Sitka Rocky Gutierrez Airport, AK, published in the Federal Register of June 1, 2022, (87 FR 32981), FR Doc. 2022-11591, is corrected as follows:

1. On page 32981, in the first column, beginning on line 53, DATES is corrected to read:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the Fort Lauderdale-Hollywood International Airport, FL, to reduce the potential for midair collisions and enhances the management of air traffic in the terminal area.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2020-0988 in the Federal Register (86 FR 17333; April 2, 2021) proposing to modify the Fort Lauderdale-Hollywood International Airport, FL (FLL), Class C airspace area. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. Two comments were received.

Class C airspace designations are published in paragraph 4000 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR part 71.1. The Class C airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11.

Correspondingly, the Class C airspace area, and the Class E airspace extension, in this document will subsequently be published in, or removed from, FAA Order JO 7400.11.

The first commenter affirmed their support for the new airspace design. The second commenter, the Aircraft Owners and Pilots Association (AOPA), expressed four concerns about the proposal as discussed below. 1

First, AOPA acknowledged FAA's action to improve the availability of Visual Flight Rules (VFR) flight following in the Miami Class B airspace, and the FLL Class C airspace areas, but stated that recent feedback from members indicated that VFR flight following can still be difficult to obtain particularly as “FAA has indicated they are not able to provide a VFR corridor through this airspace.”

The current coronavirus (COVID-19) pandemic has impacted air traffic controller training and staffing which, at times, has limited the services controllers can provide to VFR aircraft due to workload. Within Miami Terminal Radar Approach Control (TRACON), training is resuming and staffing is returning to normal levels which will assist in creating additional opportunities to obtain/provide services to VFR aircraft when airborne. As a suggestion, VFR pilots wishing to receive air traffic control (ATC) services are encouraged to consider obtaining a VFR discreet transponder code from ATC prior to departure.

Second, AOPA stated that the ceiling of the Class D airspace areas should be consistent with the floor of the overlying Class B or C airspace as there “needs to be more consistency to these altitudes and [AOPA] continue[s] to have concerns that this complexity could result in unintentional airspace violations.”

This rule establishes a new Area F north of FLL with a floor of 2,500 feet mean sea level (MSL). With regard to the FLL Class C airspace, the 1,200-foot MSL floor within the outer 10 nautical mile (NM) ring of the current Class C airspace design overlaps portions of the Fort Lauderdale Executive (FXE) Airport, and the Pompano Beach Airport (PMP), Class D airspace areas which both have ceilings at 2,500 feet MSL. Area F overlies portions of the FXE and PMP Class D airspace areas. The 2,500-foot floor of Area F is consistent with the 2,500-foot ceilings of the two underlying Class D airspace areas.

Third, AOPA restated its preference for the establishment of a VFR corridor through the MIA Class B airspace but expressed satisfaction that the FAA is considering the development of a VFR transition route as an alternative.

The FAA considered a VFR corridor but determined it is not feasible with current MIA area air traffic operations. As described in the Aeronautical Information Manual (AIM), VFR corridors are, in effect, a “hole” through Class B airspace in which aircraft can operate without an ATC clearance or communication with ATC. Considering local constraints, including traffic volume and traffic flows, plus the close proximity of numerous airports in the MIA area, a VFR corridor could not be established for operational and flight safety reasons.

As an alternative, the FAA designed and implemented VFR Transition Routes which became effective beginning with the February 25, 2021, aeronautical charting cycle. The routes currently are depicted on the Miami VFR Terminal Area Chart (TAC), and the Miami/South Florida VFR Flyway Planning Chart. These transition routes traverse both the MIA Class B, and the FLL Class C airspace areas, generally in north and south directions. An ATC clearance is required to fly these routes. Notes are placed on the charts to identify the routes and provide radio frequencies and altitudes to expect. Operationally, although access to the transition routes is based on controller workload, it does provide more flexibility for both controllers and pilots.

Fourth, AOPA called for the formation of a new Ad Hoc Committee to evaluate the Class B airspace changes proposed in the NPRM due to the lapse in time from the original Ad Hoc Committee and complexities as the changes.

The FAA considered the request for a second Ad Hoc Committee. After studying the recommendations from the previous Committee, and the public comments from the Informal Airspace Meetings, the FAA made a number of changes to the Class B design and published an NPRM for additional public comment. The FAA believes that sufficient feedback was received to proceed with rulemaking, and therefore decided not to form a second Ad Hoc Committee. Moreover, the public was provided with an opportunity to submit comments in response to the NPRM.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by modifying the FLL Class C airspace area to expand the lateral dimensions to the east and west of the airport, and lower some airspace floors to enhance safety in the Fort Lauderdale terminal area (see the attached chart).

The current FLL Class C airspace area consists of two concentric circles centered on the airport reference point: (1) that airspace extending upward from the surface to 4,000 feet MSL within a 5 NM radius of the airport; and (2) that airspace extending upward from 1,200 feet MSL to 4,000 feet MSL within a 10 NM radius of the airport (excluding the airspace within the adjacent Miami Class B airspace area).

This action updates the FLL airport reference point coordinates to read “lat. 26°04′18″ N, long. 80°08′59″ W” which matches the latest information in the Airport Master Records file. In addition, this rule reconfigures the Class C airspace area from the traditional two concentric circles design, to a more rectangular shape consisting of seven sub-areas identified by the letters A though G. The lateral foot print of the area is expanded to the east and west, but the current 4,000-foot MSL ceiling of the Class C airspace area is retained. In developing these modifications, the FAA has considered the input received from the Ad Hoc Committee, the informal airspace meetings, and the NPRM. The airspace modifications are described below.

Area A. Area A extends from ground level upward to 4,000 feet MSL. The lateral dimension of Area A is expanded from the current 5 NM radius of FLL, to a 7 NM radius of the airport. It is bounded on the north by lat. 26°10′03″ N (the eastern most portion of Oakland Park Boulevard located in Lauderdale Beach); and bounded on the south by a 15 NM radius of the Miami International Airport; and on the southeast by lat. 26°00′39″ N (the eastern most portion of Hollywood Boulevard located in Hollywood).

Setting the northern boundary of Area A along lat. 26°10′03″ N allows Fort Lauderdale Executive Airport (FXE) to continue using south downwind departures from FXE airport and returns most of the FXE Class D airspace area altitudes to FXE airport traffic control tower (ATCT) for their use. The new southeastern boundary of Area A provides more room for aircraft departing North Perry Airport (HWO) and Opa Locka Executive Airport (OPF) to transition to the east overwater.

Area B. Area B, located west of Area A, extends upward from 1,200 feet MSL to 4,000 feet MSL. It is bounded on the north by lat. 26°10′03″ N; on the west by State Road 869/Sawgrass Expressway, Interstate 595 and Interstate 75; on the south by the 15 NM radius of Miami International Airport; and on the east by the 7 NM radius of FLL (the western boundary of Area A). Aligning the boundaries with reference to existing major roadways give VFR pilots better visual references for determining the airspace boundaries.

Area C. Area C is located at the western end of the Class C expansion. It extends upward from 3,000 feet MSL to 4,000 feet MSL. Area C is bounded on the north by lat. 26°13′53″ N (aligned with the eastern portion of Atlantic Boulevard located in Pompano Beach) (which is also the new northern boundary of FLL Class C airspace area); on the west by the 25 NM radius of FLL; on the south by lat. 25°57′48″ N; on the southeast by the 15 NM radius of MIA; and on the east by U.S. Route 27. Route 27 was selected as the eastern boundary based on suggestions that visual references be used to provide better situational awareness for VFR pilots.

Area D. Area D is located at the eastern end of the Class C expansion. It extends upward from 3,000 feet MSL to 4,000 feet MSL. It is bounded on the north by lat. 26°13′53″ N (aligned with the eastern portion of Atlantic Boulevard located in Pompano Beach); on the east by the 25 NM radius of FLL; on the south by lat. 26°00′39″ N (the eastern most portion of Hollywood Boulevard located in Hollywood); and on the west by the 20 NM radius of FLL. Area D forms the eastern most section of the FLL Class C airspace area. In the original design, the Class C floor in Area D was proposed to be 2,500 feet MSL. To accommodate concerns, the floor is raised to 3,000 feet MSL to give VFR pilots a little more room to transition beneath the area.

Area E. Area E extends upward from 1,500 feet MSL to 4,000 feet MSL. It is bounded on the north by lat. 26°10′03″ N (the eastern most portion of Oakland Park Boulevard located in Lauderdale Beach); on the east by the north-south portion of Interstate I-75 and State Road 869/Sawgrass Expressway; on the south by the 15 NM radius of MIA; and on the west by U.S. Route 27. Area E is located between Areas B and C.

A goal of the design of Area E is to resolve an issue caused by the configurations of the current MIA Class B airspace and the FLL Class C airspace areas. A gap, approximately 4-5 NM wide, exists in the airspace between the current 10 NM radius of FLL's Class C airspace (to the west of the airport), and the existing MIA Class B airspace area to the northwest of MIA (in the vicinity of U.S. Route 27). VFR aircraft that are not in communication with ATC frequently transit this gap and are climbing or descending through the final approach courses and the downwind legs for FLL arrivals to runways 10L/10R. The redesign of Area E is intended to close this gap to enhance safety for both FLL traffic and the transiting VFR aircraft. The original proposal set the Class C airspace floor in this area at 1,200 feet MSL. Due to concerns about restricting VFR aircraft transiting the area, the Area E floor is raised to 1,500 feet MSL to give VFR aircraft more room to transition north and south. The use of existing major roadways to mark the boundaries gives VFR pilots better situational awareness of the lateral confines of Area E.

Area F. Area F extends upward from 2,500 feet MSL to 4,000 feet MSL. The area's boundaries begin at a point northwest of FLL where U.S. Route 27 intersects lat. 26°13′53″ N (aligned with the eastern portion of Atlantic Boulevard in Pompano Beach); thence moving east along lat. 26°13′53″ N to a point that intersects the 20 NM radius of FLL; thence moving clockwise along the 20 NM radius of FLL to a point that intersects lat. 26°00′39″ N; (the eastern most portion of Hollywood Boulevard located in Hollywood); thence moving west along lat. 26°00′39″ N to a point that intersects the 15 NM radius of FLL; thence moving counter-clockwise along the 15 NM radius of FLL to a point that intersects lat. 26°10′03″ N (the eastern most portion of Oakland Park Boulevard located in Lauderdale Beach); thence moving west along lat. 26°10′03″ N to a point that intersects U.S. route 27; thence moving north along U.S. Route 27 to the point of beginning. Area F forms the northern shelf of the FLL Class C airspace area, running east and west between areas C and D, as well as a north/south segment running between Areas G and D.

In the current FLL Class C airspace configuration, the floor of Class C airspace over FXE is 1,200 feet MSL. This 1,200-foot floor extends right up to Pompano Beach Airpark (PMP). With the addition of Area F, the Class C airspace floor is raised to 2,500 feet MSL over FXE, and the northern boundary of Class C airspace is moved farther to the south of PMP and aligned with the eastern portion of Atlantic Boulevard. This 2,500-foot MSL Class C airspace shelf over FXE, and southward relocation of the northern Class C airspace boundary to be aligned with Atlantic Boulevard, provides a number of benefits, including: the use of visual references to identify airspace boundaries; better access for VFR pilots to the FXE and PMP areas; additional room below Class C airspace to accommodate downwind departures from FXE; better access for the flight schools based at FXE and PMP to airspace that is regularly used for flight training; and providing FXE and PMP ATCTs access to more altitudes within their respective Class D airspace areas.

Area G. Area G extends upward from 1,200 feet MSL to 4,000 feet MSL. The area boundaries begin at a point northeast of FLL where the 7 NM radius of FLL intersects lat. 26°10′03″ N (the eastern most portion of Oakland Park Boulevard located in Lauderdale beach); thence moving clockwise along the 7 NM radius of FLL to a point that intersects lat. 26°00′39″ N (the eastern most portion of Hollywood Boulevard located in Hollywood); thence moving east along lat. 26°00′39″ N to a point that intersects the 15 NM radius of FLL; thence moving counterclockwise along the 15 NM radius of FLL to a point that intersects lat. 26°10′03″ N; thence moving west along lat. 26°10′03″ N to the point of beginning. Area G is located between Areas A and F.

In addition, this action removes the Class E airspace extension to the FLL Class C airspace surface area. The expansion of Area A from the current 5 NM radius, to a 7 NM radius, incorporates the airspace in the Class E extension into the Class C surface area thereby rendering the extension unnecessary.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15th.

Since this action involves, in part, the designation of navigable airspace outside the United States, the Administrator consulted with the Secretary of State and the Secretary of Defense in accordance with the provisions of Executive Order 10854.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new information collection requirement associated with this final rule.

Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify the costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $158,000,000, using the most current (2020) Implicit Price Deflator for the Gross Domestic Product. This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule.

In conducting these analyses, the FAA has determined that this rule: will have a minimal cost impact; is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866; will not have a significant economic impact on a substantial number of small entities; will not create unnecessary obstacles to the foreign commerce of the United States; and will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

In conducting these analyses, the FAA has determined that this final rule: (1) Is expected to have a minimal cost impact, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not significant under DOT's administrative procedure rule on rulemaking at 49 CFR 5.13; (4) not have a significant economic impact on a substantial number of small entities; (5) does not create unnecessary obstacles to the foreign commerce of the United States; and (6) does not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

As discussed above, the FAA determined that changes put forth in this rule will increase airspace safety and efficiency with minimal cost impact. The rule will reconfigure and expand the FLL Class C airspace. Despite significant increases in aircraft operations and passenger enplanements over the years, the FLL Class C airspace has not been modified since its inception in 1986. The current Class C airspace area is not sufficient to accommodate the volume of aircraft operations in the congested South Florida airspace, nor the traffic pattern required by the increasing numbers of turbojet operations at FLL. The benefits of the rule are to reduce the risk of midair collisions and increase efficiency of air traffic operations in the FLL terminals.

The discussion presented in this section reflects conditions that predate the coronavirus (COVID-19) pandemic in 2021. At the time of writing, there is uncertainty surrounding the timing of recovery and the long-term effects. To the extent that there are lingering or lasting changes to general aviation and air carrier operations, the benefits and costs of the FLL Class C airspace modification in this rule may vary relative to the level of future operations.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The final rule modifies Class C airspace around FLL. The change affects general aviation operators using the airspace at or near FLL. Operators flying VFR need to adjust their flight paths to avoid the modified Class C airspace. However, the modifications to Class C airspace are intended to be the least restrictive option while enhancing safety. Additionally, VFR operators can also use the current north-south charted VFR flyway below the 3,000-foot Class B floor to the west of MIA, which enables pilots to fly beneath the Class B, and east-west flyway below 2000 MSL located to the south of HWO, or to the north of Miami OPF. VFR pilots have the option to contact ATC at Miami TRACON or FLL ATCT, and request flight following, if desired. Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking would not result in a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it should improve safety and is consistent with the Trade Agreements Act.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The FAA has determined that this action of (1) reconfiguring and expanding the Fort Lauderdale-Hollywood International Airport, FL (FLL), Class C airspace area and, (2) updating the FLL Airport Reference Point (ARP) latitude/longitude geographic coordinates to match current airspace database information, and (3) revoking the Class E airspace extension to the FLL Class C airspace surface area qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

We are adopting amendments to:

In addition, we are adopting technical amendments to 17 CFR 239.40 (“Form F-10”), 17 CFR 239.42 (“Form F-X”) and 17 CFR 239.800 (“Form CB”) to remove certain outdated references in these forms. The rule text of these technical changes has been included with the adopted amendments.

Registrants and individuals submit most documents required to be filed or otherwise submitted to the Commission under the Federal securities laws in electronic format using the Commission's EDGAR system. EDGAR filings are available to the public on our website. 3 During the 2021 calendar year, electronic filers submitted approximately 916,000 filings on EDGAR. These electronic filings enable investors and other EDGAR users to access more quickly the information contained in registration statements, periodic reports, and other filings made with the Commission. In contrast, investors or other parties wishing to access and review paper filings must do so in person at the Commission's public reference room, or subscribe to a third-party information service that scans and distributes the information after a paper filing is made. As such, it can be time consuming and/or costly to obtain these filings in paper. 4

In 1993, when the Commission began to mandate the electronic filing of documents on EDGAR, it adopted Regulation S-T and other rule and form amendments to implement the operational phase of EDGAR. 5 When the Commission adopted Regulation S-T it did not mandate electronic filing for all documents that are required to be filed under the Federal securities laws. 6 Currently, 17 CFR 232.101(a) (“Rule 101(a)”) mandates the electronic filing of over 400 different forms, schedules, reports, and applications. However, 17 CFR 232.101(b) (“Rule 101(b)”) identifies a number of documents that filers may choose (but are not required) to submit in electronic format via EDGAR and 17 CFR 232.101(c) (“Rule 101(c)”) identifies a number of documents that are not permitted to be filed in electronic format via EDGAR.

Since implementation of EDGAR, the Commission has increasingly sought to make the system more comprehensive by including more filings in the mandated electronic filing category. For example, in 2002, the Commission adopted amendments to require foreign private issuers and foreign governments to submit electronically via EDGAR many of the documents that they are required to file. 7 In 2003, 8 the Commission adopted rule and form amendments to mandate the electronic filing of Forms 3, 4, and 5. 9

In furtherance of this objective, on November 4, 2021, we proposed amendments to update additional EDGAR filing requirements. 10 Specifically, we proposed rule and form amendments that would: (1) mandate the electronic filing or submission of most of the documents that are currently permitted electronic submissions under Rule 101(b) of Regulation S-T; (2) mandate the electronic submission of the “glossy” annual report to security holders; (3) mandate the electronic filing of the certification made pursuant to 15 U.S.C. 78l(d) (“Section 12(d) of the Exchange Act”) and 17 CFR 240.12d1-3 (“Exchange Act Rule 12d1-3”) that a security has been approved by an exchange for listing and registration; (4) mandate the use of Inline XBRL for the filing of the financial statements and accompanying notes to the financial statements required by Form 11-K; and (5) allow for the electronic submission of certain foreign language documents.

In addition, on December 22, 2020, as part of a broader rule proposal relating to 17 CFR 230.144 (“Rule 144”), we proposed to mandate electronic filing of Form 144 with respect to securities issued by issuers subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act. 11

We are now adopting amendments reflecting the above rule and form proposals, substantially as proposed. We believe that these changes will continue and further the Commission's ongoing efforts to make the EDGAR system more comprehensive by including more filings in the mandated electronic filing category.

Rule 101(b) of Regulation S-T currently permits filers to submit the following documents either electronically or in paper format:

• Annual reports to security holders (colloquially referred to as the “glossy” annual reports) furnished for the information of the Commission pursuant to 17 CFR 240.14a-3(c) (“Exchange Act Rule 14a-3(c)”) or 17 CFR 240.14c-3(b) (“Exchange Act Rule 14c-3(b)”), or under the requirements of Form 10-K for registrants reporting pursuant to 15 U.S.C. 78o(d) (“Section 15(d) of the Exchange Act”), 12 or by foreign private issuers on Form 6-K pursuant to Exchange Act Rules 17 CFR 240.13a-16 or 17 CFR 240.15d-16;

• Notices of exempt solicitation furnished for the information of the Commission pursuant to 17 CFR 240.14a-6(g), and notices of exempt preliminary roll-up communications furnished for the information of the Commission pursuant to 17 CFR 240.14a-6(n);

• Annual reports for employee benefit plans on 17 CFR 249.311 (“Form 11-K”);  13

• Notice of proposed sale of securities on 17 CFR 239.144 (“Form 144”) where the issuer of the securities is subject to the reporting requirements under Section 13 or 15(d) of the Exchange Act;  14

• Periodic reports and reports with respect to distributions of primary obligations filed by the International Bank for Reconstruction and Development, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the International Finance Corporation, or the European Bank for Reconstruction and Development (collectively, the “Development Banks”);  15

• Reports or other documents submitted by a foreign private issuer under cover of 17 CFR 249.306 (“Form 6-K”) that the foreign private issuer must furnish and make public under the laws of the jurisdiction in which the issuer is incorporated, domiciled or legally organized (the foreign private issuer's “home country”), or under the rules of the home country exchange on which the foreign private issuer's securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the issuer's security holders, and, if discussing a material event, has already been the subject of a Form 6-K or other Commission filing or submission on EDGAR; and

• Documents filed with the Commission pursuant to 15 U.S.C. 80a-32 (“Section 33 of the Investment Company Act”). 16

In two separate rule proposals, 17 we proposed to amend Rule 101 of Regulation S-T to mandate the electronic filing of the documents listed above; all of which are currently permitted electronic filings under Rule 101(b).

In the Updating EDGAR Proposing Release, we proposed amendments that would remove the permitted electronic submissions listed in Rule 101(b)(1) through paragraph (b)(6), with the exception of current paragraph 101(b)(4) relating to Rule 144 filings, as well as paragraph (b)(9)  18 and add those items to the list of mandated electronic submissions contained in Rule 101(a)(1) of Regulation S-T. 19

In the Rule 144 Proposing Release, 20 we proposed to remove the permitted electronic submission of all Form 144 filings for the sale of securities of Exchange Act reporting companies in Rule 101(b)(4) of Regulation S-T and add that item to the list of mandated electronic submissions contained in Rule 101(a)(1) of Regulation S-T. 21 We also proposed to amend Rule 144(h)(1) to delete the requirement that an affiliate send one copy of the Form 144 notice to the principal exchange, if any, on which the restricted securities are admitted to trading, as this provision was designed for paper Form 144 filings. We proposed to provide a six-month transition period after the effective date of the amendments to Regulation S-T to give Form 144 paper filers who would be first-time electronic filers on EDGAR sufficient time to apply for access to file on EDGAR. Additionally, the Rule 144 Proposing Release noted that we would make Form 144 available online as a fillable document that could be used by filers.

We received eight comment letters on the Updating EDGAR Proposing Release. One was supportive of the mandate to make the glossy annual report a mandatory EDGAR filing;  22 two addressed the electronic filing of forms that were not part of the proposal;  23 one addressed substantive disclosure requirements not addressed in, and beyond the scope of, the proposal, 24 one addressed a filing process that was not proposed, 25 and one requested a longer comment period. 26 We did not receive any comments opposing this proposal.

We received twelve comment letters on the Rule 144 Proposing Release addressing the proposed amendment to mandate electronic filing of Form 144, most of which expressed support for mandating the electronic filing of Form 144. For example, several of these commenters stated that proposed amendments would allow for a more convenient and improved filing process. 27 A number of commenters noted that filing Form 144 in paper makes it difficult for investors and other users of the disclosures (such as researchers and other regulatory bodies) to access the information contained in these filings. 28

One commenter stated that the importance of the information contained in Form 144 is demonstrated by the activities of third party vendors that regularly visit the Commission's Reading Room to scan, digitize, and disseminate Forms 144 to clients that pay for the information. 29 This commenter stated the Commission's Form 144 paper filing regime has created a two-tiered disclosure system that makes public disclosure of Form 144 essentially only accessible to large institutional clients that have the resources pay for this information, but inaccessible to individual investors. 30

Another commenter, although supportive of the goals of this proposal, expressed concern that the proposed amendments would present significant logistical challenges for broker-dealers that prepare and submit Form 144 filings on behalf of their clients and may result in firms deciding to cease providing such services. 31 This commenter stated that mandating the electronic filing of Form 144 will require firms to log-in and log-out of the SEC's system using a Form 144 filer's EDGAR credentials, “which will be extremely time-consuming and labor-intensive” given the number of Form 144 filings that this commenter indicated are filed by broker-dealers. 32 This commenter also stated that an electronic filing mandate would require a brokerage firm to develop and maintain processes to collect, securely store, and properly update all of the EDGAR access credentials for each of its clients that are required to file a Form 144. This commenter recommended, as an alternative, that the Commission adopt an approach that would allow brokerage firms to bulk file Forms 144 on a daily or every-other-business-day basis (or whatever time period the Commission considers appropriate) and that the Commission also provide a twelve-month transition period. 33

After considering the public comments, we are adopting the amendments to mandate electronic filing as proposed, with the exception of the compliance date for the electronic filing of Form 144, which is discussed further in Section II.F, below. We believe that mandating the electronic filing of these documents will benefit investors and other users by making the information contained in these filings accessible to the public almost immediately after filing on EDGAR. It will thus enable investors, market participants, and other EDGAR users to retrieve and use the information in these documents promptly, as compared to a paper filing, facilitating their analysis of this information. The use of EDGAR will also facilitate efficient storage of this information, improve the Commission's ability to track and process filings, and modernize the Commission's records management process. Moreover, eliminating the permitted electronic submissions of documents that are filed or furnished pursuant to Rules 101(b)(1)-(3), (5), (6) and (9) will eliminate a paper option that as a practical matter is not used by the vast majority of registrants. 34

In addition, Form 144 filers will benefit from the planned changes to make the form an online fillable document that would facilitate electronic filing. An online fillable form will enable the convenient input of information, and support the electronic assembly of such information and transmission to EDGAR, without requiring a Form 144 filer to purchase or maintain additional software or technology. The fillable form will be similar to other fillable forms that are currently available to file other Form-specific XML filings on EDGAR such as Forms D, 3, 4, and 5. 35 As such, the Form 144 data will be machine-readable and thus available for automated and efficient analysis.

We acknowledge the concerns voiced by one commenter about potential logistical challenges for brokers and dealers. 36 We note that EDGAR allows for bulk filing of forms, including forms for multiple different CIKs, simultaneously. As such, a single broker-dealer could bulk file Forms 144 simultaneously for multiple clients. 37 In addition, we are providing a longer transition period than what was proposed for Form 144 paper filers to file the forms electronically on EDGAR. Specifically, we are adopting a six-month transition period commencing from the date when the Commission adopts a version of the EDGAR Filer Manual that addresses the updates to Form 144. 38

Exchange Act Rules 14a-3(c) and 14c-3(b) require registrants subject to these rules to furnish to the Commission, for its information, seven copies of their “glossy” annual report to security holders. 39 Form 10-K contains a similar provision that requires registrants that are required to file a Form 10-K pursuant to Section 15(d) of the Exchange Act to furnish to the Commission four copies of their “glossy” annual report to security holders. 40 In addition, foreign private issuers are often required to furnish to the Commission their “glossy” annual report to security holders in response to the requirements of Form 6-K. 41

Rule 101(b)(1) of Regulation S-T permits all of these registrants to satisfy the above requirements by submitting to the Commission their “glossy” annual report to security holders in either paper or electronically on EDGAR. During the 2020 and 2021 calendar years, we received minimal paper submissions and very few electronic submissions of annual reports. 42

We proposed to require registrants to submit to the Commission their “glossy” annual report to security holders via an electronic submission on EDGAR, in accordance with the EDGAR Filer Manual, by adding Rule 101(a)(1)(xxiii) of Regulation S-T and removing Rule 101(b)(1) of Regulation S-T. 43 Registrants would no longer be permitted to submit their “glossy” annual report to security holders to the Commission in paper.

We are now adopting the amendments as proposed. We believe the requirements to furnish these reports to the Commission in paper format under Exchange Act Rule 14a-3(c), Exchange Act Rule 14c-3(b) and Form 10-K are unnecessary. We also believe that, in addition to helping inform the Commission, investors will benefit from the ability to access electronic copies of the “glossy” annual reports to security holders on EDGAR.

Going forward, EDGAR will serve as a repository for electronic copies of the “glossy” annual reports to security holders, whether or not registrants decide to post the reports on their corporate websites. 44 An archive of electronic copies of the “glossy” annual reports to security holders will ensure long-term access to these reports in a centralized database available to the public and will avoid the burden for investors of having to search individual corporate websites and other resources for this information. In addition, electronic submission of the “glossy” annual report to security holders should capture the graphics, styles of presentation, and prominence of disclosures (including text size, placement, color, and offset, as applicable) contained in the reports. 45

On June 5, 2019, the Department issued an IFR titled “Visas: Diversity Immigrants” in the Federal Register (84 FR 25989). The IFR amended Department regulations at 22 CFR 42.33(b)(1) to require a Diversity Visa (“DV”) program entrant to provide on the electronic DV entry form the unique serial or issuance number associated with that entrant's valid, unexpired passport, as well as the passport's country or authority of issuance, and its expiration date, unless the entrant claimed a valid passport exemption pursuant to 22 CFR 42.2(d), (e), or (g)(2). The IFR also clarified and amended its regulation at 22 CFR 42.33(b)(1) to notify entrants that failure to accurately include any information required by the regulation would result in mandatory disqualification for that selection year.

On February 4, 2022, the District Court vacated the IFR. E.B. v. U.S. Department of State, No. 19-2856 (D.D.C. Feb. 4, 2022). To comply with the District Court's ruling, the Department is removing the regulatory changes promulgated by the IFR. This rule also makes a technical correction to a punctuation mark in 22 CFR 42.33(b)(1)(vii).

The regulatory analyses contained in the IFR are adopted herein by reference, as supplemented by the following.

This rule is not subject to the requirement under the Administrative Procedure Act (APA) to provide notice-and-comment, because it falls under the good cause exception, 5 U.S.C. 553(b)(B). The good cause exception is satisfied when notice and comment is “impracticable, unnecessary, or contrary to the public interest.” Id. This rule is a necessary administrative step to implement the District Court's order vacating the IFR. Additionally, because this rule implements a court order already in effect, the Department has good cause to publish the rule effective immediately and without a notice and comment period under 5 U.S.C. 553(d)(3).

This is not a major rule as defined by 5 U.S.C. 804.

The Office of Information and Regulatory Affairs has determined that this is a significant, though not economically significant, regulatory action under Section 3(f) of Executive Order 12866.

Accordingly, for the reasons stated in the preamble, the Department amends 22 CFR part 42 as follows:

Purpose of Program: The purpose of the SPDG program is to assist State educational agencies (SEAs) in reforming and improving their systems for personnel preparation and professional development in early intervention, educational, and transition services to improve results for children with disabilities.

Program Authority: 20 U.S.C. 1451-1455.

We published a notice of proposed priority (NPP) for this program in the Federal Register on February 1, 2022 (87 FR 5432). That document contained background information and our reasons for proposing the priority.

There are some differences between the NPP and this notice of final priority (NFP) as discussed in the Analysis of Comments and Changes section of this document.

Public Comment: In response to our invitation in the NPP, 17 parties submitted comments on the proposed priority. Generally, we do not address technical and other minor changes, or suggested changes the law does not authorize us to make under the applicable statutory authority. In addition, we do not address general comments that raised concerns not directly related to the proposed priority.

Analysis of Comments and Changes: An analysis of the comments and of any changes in the priority since publication of the NPP follows.

Comment: One commenter asked whether the Department determined where funds should be used in a State. Other commenters recommended making these funds available for recruitment of highly qualified early intervention staff.

Discussion: While the Department agrees that the recruitment of highly qualified early intervention staff is an appropriate use of funds, we want to provide flexibility to SEAs (working in partnership with State lead agencies (LAs)) (“applicants” or “SEA applicant”) to determine how funds are used within the constraints of a notice inviting applications (NIA). This flexibility allows these applicants to choose the programming and sites they would like to support via professional development and the CSPD.

Changes: None.

Comment: One commenter requested that the Department stipulate the amount and percentage of SPDG funding to be used for activities or personnel development for those working with infants, toddlers, and their families.

Discussion: The Department does not want to stipulate the amount of funding, because the Department wants to provide flexibility to SEA applicants (working in partnership with State LAs) to determine the amount of funding based on the proposed activities. Typically, an NIA under the SPDG program provides a number of areas a State can choose from to focus their efforts so that they best meet the needs of their State.

However, as noted by the commenter, to achieve this priority, it will be essential for the State to at least specify the percentage of funding. As a result, we are clarifying in the priority language that a State must indicate the amount and percentage of SPDG funding that will support implementation of the CSPD over the project period and how funding will complement current efforts and investments (Federal IDEA Part C appropriations and State and local funds) to implement the CSPD. Additionally, we are clarifying a State must describe the extent to which funds will be used on activities to increase and train personnel working with infants and toddlers and their families that have historically been underserved by Part C.

Changes: We have replaced “should” with “must,” in the first paragraph of the priority, “Supporting an IDEA Part C Comprehensive System of Personnel Development” in the NIA to make clear that an applicant must provide the amount and percentage of SPDG funding that will support implementation of the CSPD over the project period and how funding will complement current efforts and investments (Federal IDEA Part C appropriations and State and local funds) to implement the CSPD. We also replaced “should” with “must,” in the description of the priority, “Supporting an IDEA Part C Comprehensive System of Personnel Development” prior to the grant's “Program Requirements” section to make clear that an applicant must also describe the extent to which funds will be used on activities to increase and train personnel working with infants and toddlers and their families that have historically been underserved by Part C.

Comment: One commenter described how their State's CSPD has brought together a diverse group of stakeholders and has provided a focus for important workforce issues critical to the education of their youngest learners.

Discussion: We agree that the CSPD can support collaborative, ongoing efforts to develop a knowledgeable and skilled early childhood workforce.

Changes: None.

Comment: Three commenters described how necessary this priority is because there are insufficient resources and funding to support the use of evidence-based early intervention services that improve outcomes for children with disabilities. And three commenters supported the use of the SPDG in supporting effective practices in early childhood services.

Discussion: The Department agrees that supporting evidence-based practices for the youngest children can result in substantial impact.

Changes: None.

Comment: One commenter suggested that it could be more time efficient to have a national technical assistance (TA) provider work with staff within States.

Discussion: While the Department agrees and notes that it does fund a national TA center that supports the development of CSPDs in States—the Early Childhood Personnel Center ( https://ecpcta.org/ )—additional resources are needed under the SPDG program to build sustainable systems within a State. Furthermore, the purpose of this priority is to ensure that SEAs work collaboratively with LAs by developing a partnership, and this funding would support such a partnership.

Changes: None.

Comment: Eleven commenters stated that this priority will assist with the extreme shortage of early childhood personnel.

Discussion: We agree that there are early childhood personnel shortages and this grant program can be used to support statewide strategies to recruit and retain personnel.

Changes: None.

Comment: One commenter shared that early intervention personnel need more support in implementing recommended early childhood practices.

Discussion: We agree that early intervention personnel need support in implementing recommended early childhood practices. This support can be a focus of the SPDG activities.

Changes: None.

Comment: Four commenters shared that the CSPD is integral to an effective system for Part C of the IDEA and that a comprehensive system facilitates communication, collaboration, and implementation of coordinated components of personnel standards; recruitment and retention; pre-service and in-service training; and sustainability of a qualified workforce, which includes a statewide workforce tracking system.

Discussion: We agree with the commenters that a CSPD is integral to an effective Part C system and that a comprehensive system includes these elements.

Changes: None.

Comment: Three commenters asked that the Department require each of the elements of the CSPD.

Discussion: This priority lists the components from the CSPD that are required by section 635(a)(8) of the IDEA (34 CFR 303.118(a)). The Department is cognizant that not all Part C programs under IDEA have the infrastructure in place to carry out all aspects of the CSPD and that SPDG funds are administered by SEAs under section 652 of the IDEA, which is why the priority requires SEAs (that are not LAs) to apply for SPDG funds in partnership with LAs to support further development of these components.

Changes: None.

Comment: Three commenters shared the opinion that this funding would be the most helpful if used to provide updated mental health training in local educational agencies (LEAs) and schools.

Discussion: Since this priority focuses on the Part C CSPD, it cannot support training for LEAs and schools.

Changes: None.

Comment: One commenter was concerned that practices supported in a CSPD be evidence-based, a good fit for the context, and evaluated properly with data.

Discussion: We agree that practices supported in a CSPD must be evidence-based, a good fit for the context, and evaluated properly with data. The SPDG supports the use of evidence-based practices.

We also agree that the context in which the evidence-based practices are implemented is a critical consideration and that data must be used to evaluate the fidelity and effects of the practice.

Changes: None.

Comment: Two commenters shared that the needs of children vary dramatically across rural and inner-city communities, and one commenter recommended that the Department require States to provide what they understand their specific, community-based needs are and how the grant funding will directly support students who are most vulnerable.

Discussion: We agree that the context where children with disabilities are being served should be considered when planning services. Sections 651 through 655 of the IDEA, as amended by the Every Student Succeeds Act (ESSA), requires projects to review the needs in the State, including areas in need of improvement related to the preparation, ongoing training, and professional development of personnel who serve infants, toddlers, preschoolers, and children with disabilities within the State, including different geographical needs within the State. Each applicant is required to include a plan that aligns with sections of the IDEA as specified earlier in this paragraph.

Changes: None.

Comment: One commenter recommended setting clear standards for the qualifications of service providers.

Discussion: The Department agrees as this is consistent with the law. Under section 632(4)(F) of the IDEA, the CSPD requires the State to establish and maintain a system that results in qualified personnel. Under 34 CFR 303.31, qualified personnel is defined as qualifications that are consistent with State-approved or recognized certification, licensing, registration, or other comparable requirements that apply to the areas in which personnel are conducting evaluations or assessments or providing early intervention services.

Changes: None.

Comment: One commenter recommended that the Department support apprenticeship programs for improved retention of disability service providers and educators. According to this commenter, these apprenticeships offer the opportunity for dedicated, passionate individuals to pursue careers in paraprofessional services without the financial burden of attending a traditional, full-time university. Additionally, this commenter noted that these programs address the paraprofessional staff shortages experienced by schools across the Nation.

Discussion: The Department considers an apprenticeship program that addresses the needs that the State has identified under its CSPD an allowable use of funds.

Changes: None.

Comment: One commenter recommended the Department clearly define transition services and provide clearer standards as to what constitutes effective services for infants and toddlers with disabilities who are moving from an early intervention program to the general education curriculum.

Discussion: Defining transition services is unnecessary because Part C of the IDEA identifies the transition service requirements in IDEA section 637(a)(9) and 34 CFR 303.209  1 and including personnel training activities focused on transition services is an option for a SPDG developing their CSPD.

Changes: None.

Comment: One commenter noted that more funding needs to be provided to support early childhood programming. The commenter shared that many States must use an in-service model to train providers, but that this model can put substantial strain on the State's system if the costs of training are not offset by other funding sources.

Discussion: This priority is intended to provide funding to SEAs working with LAs to support the LA's Part C CSPD which the Department believes will have a positive effect on early intervention services for infants and toddlers.

Change: None.

Comment: One commenter voiced opposition to the proposed priority stating that it would have the unintended consequence of giving a competitive advantage to SEAs that are State LAs responsible for administering Part C. The commenter was also concerned that the priority might reduce the competitiveness of States whose SPDG focus is not related to Part C.

Discussion: The Department is confident that State LAs interested in this priority will successfully pursue a collaborative partnership with the SEA applicant and that SEAs will see the benefits of the collaborative partnership.

Change: None.

Comment: The same commenter shared concerns that this priority would be a burden for SEAs by requiring them to partner with LAs, oversee grant activities, and evaluate the LA's efforts. This commenter was also concerned that the priority might cause an SEA to change its focus to a Part C activity and disrupt an effort already underway that could be funded by the SPDG.

Discussion: We thank the commenter for raising this concern. We agree that some additional administrative responsibilities could fall on an SEA that is not an LA to address this priority. The Department, however, is confident that establishing a working partnership across the SEA and LA for Part C will ultimately benefit infants and toddlers with disabilities.

Change: None.

Comment: Two commenters supported a competitive preference priority.

Discussion: The Department thanks these commenters and will consider their suggestions. The specification of the type of priority, however, belongs in the NIA, not the NFP, to enable the Department to determine on a competition-by-competition basis, whether to make the priority an absolute or competitive preference priority.

Change: None.

Comment: Two commenters supported the priority as a means to encourage partnerships between the SEA and the State LA for Part C and to integrate early intervention personnel preparation and professional development needs into statewide planning.

Discussion: The Department appreciates the support for this priority, which requires partnerships between the SEA and LA.

Changes: None.

FINAL PRIORITY:

Supporting an IDEA Part C Comprehensive System of Personnel Development (CSPD).

The purpose of this priority is to fund projects designed to enable the State to meet the CSPD requirements of section 635(a)(8) and (9) of the IDEA. In order to be considered for a grant under this priority, if the SEA is not the State LA for IDEA Part C, an SEA must establish a partnership, consistent with IDEA section 652(b)(1)(B), with the State LA responsible for administering IDEA Part C.

Consistent with IDEA section 635(a)(8) this priority will help improve the capacity of States' IDEA Part C personnel development, including the training of paraprofessionals and the training of primary referral sources with respect to the basic components of early intervention services available in the State. The CSPD must include, consistent with 34 CFR 303.118(a): (1) Training personnel to implement innovative strategies and activities for the recruitment and retention of early education service providers; (2) Promoting the preparation of early intervention providers who are fully and appropriately qualified to provide early intervention services under this part; and (3) Training personnel to coordinate transition services for infants and toddlers with disabilities who are transitioning from an early intervention service program under Part C of the Act to a preschool program under section 619 of the Act, Head Start, Early Head Start, an elementary school program under Part B of the Act, or another appropriate program. The IDEA Part C CSPD may also include, consistent with 34 CFR 303.118(b): (1) Training personnel to work in rural and urban areas; (2) Training personnel in the social and emotional development of young children; (3) Training personnel to support families in participating fully in the development and implementation of the child's Individualized Family Service Plan; and (4) Training personnel who provide services under this part using standards that are consistent with early learning personnel development standards funded under the State Advisory Council on Early Childhood Education and Care established under the Head Start Act, if applicable. The SEA must include in its State plan how it will partner with the State LA, if the SEA is not the State LA for IDEA Part C, to implement these aspects of the CSPD. The description of the partnership must indicate the amount and percentage of SPDG funding that will support implementation of the CSPD over the project period and how funding will complement current efforts and investments (Federal IDEA Part C appropriations and State and local funds) to implement the CSPD. The description must also describe the extent to which funds will be used on activities to increase and train personnel working with infants and toddlers and their families that have historically been underserved by Part C.

Types of Priorities: When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register . The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

This document does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Note: This document does not solicit applications. In any year in which we choose to use this priority, we invite applications through a notice in the Federal Register .

Under Executive Order 12866, the Office of Management and Budget (OMB) determines whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866. We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing this final priority only on a reasoned determination that its benefits justify the costs. In choosing among alternative regulatory approaches, we selected the approach that maximizes net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action does not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

Summary of potential costs and benefits: The Department believes that the costs associated with the final priority will be minimal, while the potential benefits are significant. The Department believes that this regulatory action does not impose significant costs on eligible entities. Participation in this program is voluntary, and the costs imposed on applicants by this regulatory action will be limited to paperwork burden related to preparing an application. The benefits of implementing the program will outweigh the costs incurred by applicants, and the costs of carrying out activities associated with the application will be paid for with program funds. For these reasons, we have determined that the costs of implementation will not be burdensome for eligible applicants, including small entities.

The Department believes that the priority is needed to administer the program effectively.

The final priority contains information collection requirements that are approved by OMB under OMB control number 1820-0028; the final priority does not affect the currently approved data collection.

Regulatory Flexibility Act Certification: The Secretary certifies that this final regulatory action would not have a significant economic impact on a substantial number of small entities. The U.S. Small Business Administration Size Standards define “small entities” as for-profit or nonprofit institutions with total annual revenue below $7,000,000 or, if they are institutions controlled by small governmental jurisdictions (that are comprised of cities, counties, towns, townships, villages, school districts, or special districts), with a population of less than 50,000.

Participation in the SPDG program is voluntary. In addition, the only eligible entities for this program are SEAs, which do not meet the definition of a small entity. For these reasons, the final priority will not impose any additional burden on small entities.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Accessible Format: On request to the program contact person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register , in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

On October 13, 2021, VA published in the Federal Register (86 FR 56846) a proposed rule to amend its regulations governing the NSLI programs. Interested persons were invited to submit written comments on or before December 13, 2021. VA received two comments concerning the proposed changes to the modes of payment for NSLI premiums.

The first commenter stated that VA makes the “confusing argument that allowing veterans to pay their life insurance bills quarterly or semi-annually adds administrative complexity and program costs,” and that the commenter cannot understand how providing additional payment options “should add any administrative complexity.” A second commenter stated that calculating quarterly and semi-annual premiums “should not have a higher program cost than calculating the annual premiums.”

We explained in our proposed rulemaking that very few Veteran policyholders choose to pay premiums on a semi-annual or quarterly basis. As part of recent VA efforts to modernize the information technology systems of its life insurance programs, VA purchased commercial-off-the-shelf (COTS) policy maintenance software used by other private insurance companies. This purchase enabled VA to minimize information technology transformation costs to policyholders compared to a custom-designed system built from the ground-up for VA use. This COTS system does not offer quarterly and semi-annual premium modes, and VA would have to incur additional costs to have the contracted vendor add these modes for VA use. VA's analysis indicated that the costs for this customization were disproportionate to the value of the associated benefit, given the relatively few policyholders who choose these payment modes. If VA were to continue these payment options, it would add administrative complexity and program costs because VA would either have to purchase a customized enhancement for these modes or develop a manual solution to override the functionality of the COTS system when policyholders choose to pay premiums on a semi-annual or quarterly basis. We note that, while the COTS system will be used for current and new policies, current policies will retain the options they have by hardcoding the prior option into the new system at conversion. A policyholder who elects a monthly or annual payment mode after conversion will not have the option to return to a quarterly or semi-annual payment. Again, to allow the quarterly and semi-annual payment options for new policies under the COTS system would require a more costly customized enhancement. Further, VA is required to manage its life insurance programs in a cost-effective and actuarially sound manner ( see, e.g., 38 U.S.C. 1920(b); 1925(d)(2)), and continuing to offer premium modes that would increase costs for all policyholders while benefitting a relative few, while also potentially increasing lapse rates for vulnerable disabled veterans, is not actuarially sound because it is not cost-effective.

The first commenter also stated that an article that we cited to in our proposed rulemaking concerning lapse rates (Cathy Ho & Nancy Muise, U.S. Individual Life Persistency: Guaranteed & Simplified Issue—A Joint Study Sponsored by Soc'y of Actuaries & LIMRA 16 (2013), https://www.soa.org/globalassets/assets/Files/Research/Exp-Study/research-2013-gisi-study.pdf (last visited Jan. 13, 2022)) “is not compelling” and that there must be ”better ways for the VA to allocate its resources than reducing the number of payment options available to veterans.” The second commenter suggested that, because the data in the article is “two decades old,” VA should use a more recent study.

In the proposed rule we stated that “research shows that lapse rates tend to increase with the number of premium payments made each year, with the notable exception of monthly payment modes.” Id. We cited to this research because the results of the study support our effort to minimize lapsed life insurance coverage by offering fewer, simpler payment options. We also cited to this research because some of the commercial insurers that we reviewed relied upon this research as well as a prior 2005 study when limiting premium payment options to reduce costs and minimize lapse of coverage for their policyholders. See Marianne Purushotham, U.S. Individual Life Persistency Update—A Joint Study Sponsored by LIMRA International and the Society of Actuaries, https://www.soa.org/globalassets/assets/Files/Research/Exp-Study/US-Indiv-Life-Persistency-Report-Final.pdf (2005) (last visited Jan. 13, 2022). Because the 2013 study is consistent with the 2005 study that was conducted by the same insurance trade group, we have no reason to believe this pattern would change with more recent data. Also, VA has historically observed more inconsistent premiums from veterans paying under semi-annual and quarterly payment modes. For the reasons stated above, VA will adopt the proposed rule as final, without change.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule will directly affect only individuals and will not directly affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.030, Life Insurance for Veterans—Face Amount of New Life Insurance Policies Issued, and 64.031, Life Insurance for Veterans—Direct Payments for Insurance.

Denis McDonough, Secretary of Veterans Affairs, approved this document on June 6, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons set out in the preamble, VA amends 38 CFR part 8 as set forth below:

I. Background

On March 7, 2022 (87 FR 12631), EPA published a notice of proposed rulemaking (NPRM) for the State of Maryland. In the NPRM, EPA proposed approval of Maryland's SIP revision addressing the NNSR requirements for the 2015 8-hour ozone NAAQS for the Baltimore, MD, Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE, and Washington, DC-MD-VA nonattainment areas. The formal SIP revision (#20-05) was submitted by Maryland on June 3, 2020.

In the SIP revision, MDE is certifying that its existing NNSR program, covering the Baltimore nonattainment area (which includes Anne Arundel, Baltimore, Carroll, Harford, and Howard Counties and the city of Baltimore), the Maryland portion of Philadelphia-Wilmington-Atlantic City nonattainment area (which includes Cecil County in Maryland), and the Maryland portion of the Washington, DC nonattainment area (which includes Calvert, Charles, Frederick, Montgomery, and Prince Georges Counties in Maryland) for the 2015 8-hour ozone NAAQS, is at least as stringent as the requirements at 40 CFR 51.165 for ozone and its precursors.

On October 1, 2015 (effective December 28, 2015), EPA promulgated a revised 8-hour ozone NAAQS of 0.070 parts per million (ppm). See 80 FR 65292 (October 26, 2015). Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS based on the three most recent years of ambient air quality data at the conclusion of the designation process. The Baltimore nonattainment area, the Philadelphia-Wilmington-Atlantic City nonattainment area, and the Washington, DC-MD-VA area were classified as marginal nonattainment for the 2015 8-hour ozone NAAQS on June 4, 2018 (effective August 3, 2018) using 2014-2016 ambient air quality data. See 83 FR 25776 (June 4, 2018).

On December 6, 2018, EPA issued the final SIP Requirements Rule, which establishes the requirements that state, tribal, and local air quality management agencies must meet as they develop implementation plans for areas where air quality exceeds the 2015 8-hour ozone NAAQS. Areas that were designated as marginal ozone nonattainment areas are required to attain the 2015 8-hour ozone NAAQS no later than August 3, 2021. See 83 FR 10376 (March 9, 2018) and 83 FR 62998 (December 6, 2018). On April 13, 2022, EPA proposed to determine that the Baltimore and Philadelphia nonattainment areas had not timely attained the 2015 ozone NAAQS. See 87 FR 21842. EPA has not yet taken final action on that proposal.

This rule is specific to Maryland's NNSR requirements for the Baltimore nonattainment area, the Philadelphia-Wilmington-Atlantic City nonattainment area, and the Washington, DC-MD-VA nonattainment area. NNSR is a preconstruction review permit program that applies to new major stationary sources or major modifications at existing sources located in a nonattainment area. The specific NNSR requirements for the ozone NAAQS are located in 40 CFR 51.160 through 51.165. The SIP Requirements Rule explained that, for each nonattainment area, a NNSR plan or plan revision was due no later than 36 months after the effective date of area designations for the 2015 8-hour ozone standard ( i.e., August 3, 2021).

The minimum SIP requirements for NNSR permitting programs for the 2015 8-hour ozone NAAQS are set forth in 40 CFR 51.165. See 40 CFR 51.1114. For the 2015 8-hour ozone NAAQS, the SIP for each ozone nonattainment area designated nonattainment for the 2008 8-hour ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS must also contain NNSR provisions that include the anti-backsliding requirements at 40 CFR 51.1105. See 40 CFR 51.165(a)(12).

Maryland's longstanding SIP approved NNSR program, established in Code of Maryland Regulations (COMAR) Air Quality Rule COMAR 26.11.17—Nonattainment Provisions for Major New Sources and Major Modifications, applies to the construction and modification of major stationary sources in nonattainment areas. COMAR 26.11.17 currently includes provisions allowing ozone interprecursor trading. On January 31, 2020, MDE submitted a SIP revision (#20-02) to incorporate the interprecursor trading provisions of COMAR 26.11.17 into the Maryland SIP. On October 27, 2020, EPA published a notice of proposed rulemaking (NPRM) in which EPA proposed to approve Maryland SIP revision #20-02). See 85 FR 68029 (October 27, 2020). MDE's SIP Revision #20-05 submission to EPA referenced those interprecursor trading provisions of COMAR 26.11.17 in its certification that Maryland's NNSR program was consistent with Federal requirements. Subsequently, on January 29, 2021, the United States Court of Appeals for the D.C. Circuit concluded that ozone interprecursor trading is not permissible under the CAA and vacated ozone interprecursor trading, i.e., the interprecursor trading provision in the Federal NNSR regulations. See Sierra Club v. EPA, 985 F.3d 1055 (D.C. Cir. 2021). EPA subsequently removed the language allowing interprecursor trading for ozone from our NNSR regulations. See 86 FR 37918 (July 19, 2021). After the court decision and EPA's withdrawal of the interprecursor trading provisions, by letter dated October 26, 2021, Maryland withdrew SIP revision #20-02 with the interprecursor trading provisions in its entirety. Additionally, in a separate clarification letter dated October 26, 2021, MDE requested that EPA withdraw from EPA's consideration those portions of SIP revision #20-05 which related to ozone interprecursor trading. Consequently, the proposed rule on interprecursor trading that was published on October 27, 2020 (85 FR 68029) was withdrawn on March 7, 2022. See 87 FR 12631.

Other specific requirements of 40 CFR 51.1114, the requirements of CAA sections 110 and 172, the minimum SIP requirements of 40 CFR 51.165, and the rationale for EPA's proposed action are explained in the NPRM, and will not be restated here. No public comments were received on the NPRM.

EPA is approving Maryland's June 3, 2020's SIP revision addressing the NNSR requirements for the 2015 8-hour ozone NAAQS for the Baltimore, MD, Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE, and Washington, DC-MD-VA nonattainment areas as a revision to the Maryland SIP. EPA has concluded that the State's submission fulfills the 40 CFR 51.1114 revision requirement, meets the requirements of CAA sections 110 and 172 and the minimum SIP requirements of 40 CFR 51.165.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 9, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving Maryland's 2015 8-hour Ozone NAAQS Certification SIP revision for NNSR may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we refer to EPA. The following outline is provided to aid in locating information in this preamble.

On April 6, 2022 (87 FR 19828), EPA published a notice of proposed rulemaking (NPRM) for the State of Delaware. In the NPRM, EPA proposed approval of Delaware's request to revise its requirements for Stage II and Stage I vapor recovery for new and existing GDFs in the State of Delaware. The formal SIP revisions being approved were submitted by the Delaware Department of Natural Resources and Environmental Control (DNREC) on November 17, 2020, and July 14, 2021. 1 The details of Delaware's November 17, 2020, and July 14, 2021 SIP submittals and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here. See 87 FR 19828 (April 6, 2022). The NPRM also contained a detailed analysis showing that Delaware's removal of the Stage II requirements would not interfere with any Delaware area's ability to attain or maintain any national ambient air quality standard (NAAQS), or any other applicable requirement of the CAA. The public comment period for the NPRM closed on May 6, 2022. EPA received no public comments on the NPRM.

As proposed in the NPRM, 2 EPA is approving Delaware's November 17, 2020, and July 14, 2021 SIP revisions for statewide removal of Stage II vapor recovery requirements, statewide prohibition of Stage II VRS installation at new GDFs, the statewide mandatory decommissioning of Stage II VRS at existing GDFs by December 31, 2021, and the statewide mandatory installation of Stage I EVRS at all GDFs by December 31, 2025. Specifically, EPA is approving Delaware's revised 7 DE Admin. Code 1124, Control of Volatile Organic Compound Emissions, and incorporating it into the Delaware SIP. EPA is approving this SIP revision because it meets all applicable requirements of the CAA and relevant EPA guidance and because approval of this SIP revision will not interfere with attainment or maintenance of the ozone NAAQS.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the State of Delaware's revised 7 DE Admin Code 1124 Section 26.0 Gasoline Dispensing Facility Stage I Vapor Recovery and Section 36.0 Vapor Emission Control at Gasoline Dispensing Facilities, which will include the revisions issued on August 17, 2015 via 19 DE Reg. 199 (state effective date September 11, 2015), the revisions issued on June 11, 2020 via 24 DE Reg. 61 (state effective date July 11, 2020), and the revisions issued on March 11, 2021 via 24 DE Reg. 944 (state effective date April 11, 2021), as described in Sections I and II of this preamble and set forth below in the amendments to part 52.

EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule to remove Delaware's Stage II vapor recovery requirements does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 9, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action.

This action to remove Stage II requirements and revise Stage I requirements for Delaware may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

This is a summary of the Commission's Report and Order (R&O), MB Docket No. 21-422; FCC 22-38, adopted on May 19, 2022, and released on May 19, 2022. The full text of this document will be available via the FCC's Electronic Comment Filing System (ECFS), https://www.fcc.gov/cgb/ecfs/. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). The Commission published the notice of proposed rulemaking (NPRM) at 86 FR 67886 on November 30, 2021.

This document contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, see 44 U.S.C. 3507. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in the amendments to §§ 73.316 and 73.1690, in a separate Federal Register document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13, see 44 U.S.C. 3507. These new or modified information collections will become effective after the Commission publishes a document in the Federal Register announcing such approval and the relevant effective date.

In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

The Commission will send a copy of this R&O to Congress and the Government Accountability Office (GAO) pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

1. Introduction. In the R&O, the Commission amended its rules to allow FM and LPFM broadcasters using directional antennas to employ computer modeling to verify the antennas' directional patterns. This represents a change from the current requirement, set forth in 47 CFR 73.316(c)(2)(iii), that an FM or LPFM directional antenna's performance be verified by the “measured relative field pattern,” and brings the rules for those services into regulatory conformity with the rules governing AM and DTV directional antennas.

2. Four manufacturers of FM broadcast radio antennas and one licensee of FM broadcast stations (Joint Petitioners) filed a Petition for Rulemaking seeking to amend the Commission's rules to allow FM directional pattern verification by computer modeling. Currently, a permittee seeking to license a facility with a directional FM antenna system must provide verification that the directional pattern of the antenna conforms to what the Commission authorized in the construction permit. The applicant must submit, among other things, a plot of the composite pattern of the directional antenna, and a tabulation of the measured relative field pattern. The required tabulation and plot of the measured relative field pattern must be obtained either by building a full-size mockup of the antenna and supporting structures or by constructing a scale model of the antenna and structures on a test range or in an anechoic chamber. Joint Petitioners pointed out that FM radio is the only broadcast service that specifically requires stations using directional antennas to provide such physical measurements. Both the full- and scale-model measurement approaches, said Joint Petitioners, increase costs and are time-consuming. Joint Petitioners also pointed out a number of difficulties with physical measurement, such as problems in accurately replicating the installed antenna environment, including nearby structures that could affect the radiated pattern. A properly implemented computer model, according to Joint Petitioners, could take these factors into account, leading to a more accurate and less expensive pattern verification.

3. The Commission released the NPRM on November 15, 2021, FCC 21-117, in which it proposed to amend its rules to provide the option for verifying FM directional patterns through computer modeling, and sought comment on the proposal, which would apply not only to license applications for new FM facilities, but to FM broadcast station licensees applying to license facility modifications. The Commission proposed, among other things, that the license applicant must provide the Commission with details of the software tools used in modeling the antenna's directional pattern and the process by which the computer modeling was carried out, as well as the qualifications of the engineer(s) who designed, modeled, and provided installation instructions for the directional antenna. The NPRM also posed several questions designed to determine whether and how best to implement a computer modeling standard. It asked whether there are easily obtainable physical measurements that can be used to verify the computer model's accuracy; whether there is a voluntary consensus standard or common computer model that antenna manufacturers and/or broadcast engineers agree provides the greatest accuracy; whether the most widely used directional FM antenna modeling software has a common theoretical basis that would allow Commission staff to evaluate the results generated by other software programs sharing the same theoretical basis; and how the staff should proceed in cases where there are interference complaints or other disputes as to the performance of a directional FM antenna that has been verified through a computer model (noting that such complaints are currently uncommon). Finally the NPRM sought general input regarding commenters' experiences with directional FM computer modeling software and its accuracy vis-à-vis real world performance.

4. Discussion. Several commenters that shared their experiences with computer modeling provided positive reports on the accuracy of computer models in depicting an antenna's directional pattern. The majority of the comments favored the proposal to amend the rules to allow computer modeling to verify FM directional antenna patterns as a means to provide license applicants with greater flexibility and to reduce overall costs for antenna manufacturers and broadcasters.

5. As discussed in more detail below, the Commission amended its rules to allow license applicants for directional FM facilities to verify the directional antenna patterns by submitting results from computer models depicting the antenna's performance, as long as they are generated by the antenna's manufacturer. This modest rule change allows for similar treatment of FM and LPFM directional antenna performance verification and AM and DTV licensing, which do not preclude the use of computer modeling to verify directional antenna performance. This rule change will reduce the cost of designing and building an FM or LPFM directional antenna, savings that should be passed on to the broadcast applicant and thus reduce the cost of station construction. Additionally, a less expensive directional antenna should provide an FM or LPFM applicant with greater flexibility in antenna siting. As is explained below, the Commission also declined to adopt several of the proposals in the NPRM.

6. Based on strong record support that antenna manufacturers should be allowed to perform computer modeling of their products' directional patterns, the Commission updated 47 CFR 73.316, to provide license applicants with the option to submit either computer results generated by the antenna's manufacturer, or physical proof of antenna directionality pursuant to current practice. As one commenter stated, antenna manufacturers are in the best position to perform computer modeling of their own products because they have the historic data to know how a specific radiator performs in a particular environment. After reviewing the comments, as well as its rules and application procedures, the Commission was convinced that it can provide the intended regulatory relief for broadcasters and manufacturers with only this minimal change to its verification requirements. It further found that this change would achieve its goal of conforming the FM directional rules with similar rules governing AM and DTV stations ( see, e.g., 47 CFR 73.151 (AM directional antenna systems), 73.685(f) (DTV directional antennas)), while maintaining the integrity of its licensing requirements. It concluded that because antenna manufacturers are best positioned to provide license applicants with accurate and sufficient proofs of performance using computer models, it should amend its rules to provide license applicants with the option to submit a computer-modeled proof of performance on the condition that such proof is provided to the licensee by the antenna manufacturer.

7. Under current Commission rules, when license applicants submit the showings required by 47 CFR 73.316(c)(2)(iii), they almost always rely on antenna manufacturer-supplied tabulations of the measured relative field pattern, performed either on a full-scale test range or with a scale model of the antenna. The Commission wished to continue to rely on the antenna manufacturer to validate directionality as it introduced the option for computer modeling. It agreed with commenters that the manufacturers are in the best position to ensure the validity of the computer model and the accuracy of the results. It also found that manufacturers have an incentive to represent accurately their products' performance, both to protect their own reputations and to avoid negative consequences for their customers who face interference complaints and regulatory action if their antenna patterns do not match what is authorized in their license. Because there was general agreement among commenters that antenna manufacturers have the expertise and knowledge of their products to be able to model the directional patterns effectively, and because the manufacturers already provide measured field patterns to their broadcast applicant/customers for submission to the Commission, it found that license applicants may submit computer-generated pattern verification from the antenna's manufacturer in lieu of measured relative field patterns, under the conditions set forth below. The Commission acknowledged commenter concern that manufacturer data should not be automatically accepted without a demonstration that the modeler has a background in physics or electromagnetic theory, and expected that any manufacturer would have an interest in providing models prepared by engineers possessing such expertise. However, given the varying backgrounds of broadcast engineers, the Commission did not wish to codify what constitutes qualifications to perform computer modeling. Should a challenge arise to a computer model, the Commission can and would seek further information regarding that model, including the qualifications of those preparing and performing the modeling.

8. The Commission declined to expand the range of entities authorized to perform computer modeling of directional FM antenna patterns beyond manufacturers at this time. Although commenters largely agreed that license applicants should be able to rely on manufacturer computer modeling to verify FM directional patterns for that manufacturer's antennas, there was less agreement as to whether others should be allowed to perform computer modeling to verify FM directional antenna patterns. The Commission declined at this time to expand the range of entities authorized to perform computer modeling of directional FM antenna patterns beyond antenna manufacturers. While acknowledging that there are individuals and entities other than antenna manufacturers that are qualified to perform computer modeling of directional FM antenna patterns, the Commission elected at this point to rely on antenna manufacturers to perform computer modeling consistent with current industry practice. Although there is no such limitation on those who can perform computer modeling for AM and DTV directional antennas, it found a more cautious approach is required for FM, given the greater number of FM stations versus DTV stations using directional antennas, and given that AM directional patterns are subject to continual verification through sampling that is not possible with FM directional antennas. As more experience is gained with computer modeling of directional FM antenna patterns, the Commission will explore expanding the range of entities authorized to perform computer modeling beyond manufacturers.

9. Although the NPRM asked several questions about which software products should be used for computer modeling, the Commission declined to prescribe any particular modeling software that the antenna manufacturers must use, instead leaving this to the manufacturer's discretion. Commenters generally agreed that it should not dictate specific software products, for reasons ranging from concern about creating software monopolies or duopolies, to cost of software generally, to encouraging creation of new and better software products. Based on the comments, the Commission concluded that antenna manufacturers should have discretion to use either commercially available software products or their own proprietary software subject to the requirements set out below. Thus, if the license applicant's submission includes modeled pattern predictions from a commercially available software program, the manufacturer's report need only identify it; if the antenna manufacturer generates results using custom software the manufacturer created or that was created for the manufacturer, the Commission will require a description of the software and the computational methods underlying the software sufficient to replicate the results if necessary.

10. As proposed in the NPRM, no matter which model or software is used, when a license application includes a proof of FM directional antenna performance obtained through computer modeling, the Commission will require that the application include a statement setting forth the name(s) and qualifications of the engineer(s) who designed the antenna, performed the modeling, and prepared the manufacturer's instructions for installing the antenna. The submission must also include a statement from such engineer(s) identifying and describing the software tools used in the model and the procedures used in running the software. It will also require a certification that the software executed normally without generating any error messages or warnings indicating something was wrong with the inputs. As proposed in the NPRM, and supported by commenters, such computer modeling must analyze the antenna mounted on a tower or tower section, and the tower or tower section model must include transmission lines, appurtenances, ladders, conduits, other antennas, and any other installations that could affect the computer modeled directional pattern. The submission statement must list and describe all such elements and structures included in the model.

11. The Commission also found sufficient reason to require verification of the accuracy of the pattern generated using a particular modeling software once for each directional antenna model number or standardized series of elements. Several commenters suggested that, once a directional antenna is modeled using a particular modeling software, a full-size or scale model of that antenna, or a single element thereof, should be constructed and the pattern measured in order to test the validity of the modeling method, with two of those commenters stating that once this process is completed for a particular antenna using a particular modeling software, it need not be repeated unless the modeling method changes. The Commission agreed, and stated that in order to assist Commission staff in accuracy verification, the first time the directional pattern of a particular model of antenna is verified using a particular modeling software, it will require the license applicant to submit to the Commission both the results of the computer modelling and measurements of either a full-size or scale model of the antenna or elements thereof, demonstrating reasonable correlation between the measurements achieved and the computer model results. Once a particular antenna model or series of elements has been verified by any license applicant using a particular modeling software, the Commission will permit all subsequent license applicants using the same antenna model number or elements and using the same modeling software to submit the computer model for the subsequent antenna installation, and to cross-reference the original submission by providing the application file number. The Commission believed that this will provide a sufficient basis to verify that the computer model has been shown correctly to describe the pattern generated by the antenna or elements.

12. These changes, in combination with the Commission's existing requirement that the license applications include the tabulations and plot of the directional pattern prescribed in § 73.316, were deemed to be a sufficient basis for Commission staff to evaluate applications involving FM directional antennas. Applicants will be required to submit, as they do now, a statement from the engineer responsible for installing the antenna, certifying that the antenna has been installed pursuant to the manufacturer's instructions, and a statement from a licensed surveyor, verifying that the antenna is properly oriented.

13. In light of the record, the Commission did not change its current policies regarding interference complaints or disputes. In the NPRM, it asked whether its existing policies are sufficient to resolve any interference complaints or disputes pertaining to directional FM antennas. Most commenters agreed that interference was not and would not be a problem, and no changes to current interference rules and procedures were requested. One commenter, which did not support computer modeling, contended that the proposed rule changes will increase FM interference due to modeled directional patterns that do not accurately reflect the actual directional signals. It also argued that this will increase inter-station interference disputes because full-service FM stations, unlike secondary services such as FM translators, need not cease operations upon receiving interference complaints. While acknowledging these concerns, the Commission stated that by requiring initial computer models of antennas and components using a particular modeling software to be verified by measurements, these concerns are sufficiently addressed.

14. The Commission found that its action provided the least disruptive means to update licensing of FM stations with directional antennas, while still allowing for the benefits of computer modeling set forth in the Joint Petition and the NPRM. It reiterated that the rule changes adopted are optional, and that applicants may still submit measured relative field patterns rather than computer modeled patterns if they so desire. The Commission finally found that the record did not provide sufficient support for further changes to its application procedures, nor does it support changes to our interference complaint and resolution policies, and therefore made no other changes to its rules at this time.

15. Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA) an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM to this proceeding. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Commission received no comments on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. See 5 U.S.C. 604.

16. Need for, and Objectives of, the Report and Order. This document adopts rule changes to provide FM and Low-Power FM (LPFM) license applicants the option to submit computer models to verify directional antenna patterns on condition that such proof is provided to the licensee by the antenna manufacturer.

17. Amending these rules will allow for similar treatment of directional FM stations and directional TV, DTV, and AM broadcast stations, and will eliminate unnecessary burdens on broadcasters.

18. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. There were no comments to the IRFA filed.

19. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

20. Description and Estimate of the Number of Small Entities to Which the Rules Apply. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small government jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

21. Radio Stations. Radio stations are an Economic Census category that “comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources.” The SBA has established a small business size standard for this category as firms having $41.5 million or less in annual receipts. 13 CFR 121.201, NAICS code 515112 Radio Stations.

22. Economic Census data for 2012 shows that 2,849 radio station firms operated during that year. Of that number, 2,806 operated with annual receipts of less than $25 million per year, and 43 firms had annual receipts of $25 million or more. Because the Census has no additional classifications that could serve as a basis for determining the number of stations whose receipts exceeded $41.5 million in that year, the Commission concluded that the majority of radio broadcast stations were small entities under the applicable SBA size standard.

23. Apart from the U.S. Census, the Commission has estimated the number of licensed commercial FM stations to be 6,763. According to BIA/Kelsey Publications, Inc.'s Media Access Pro Database, as of March 2020, 6,762 commercial FM stations had revenues of $41.5 million or less. In addition, the Commission has estimated the number of noncommercial educational FM radio stations to be 4,119, and the number of Low Power FM (LPFM) stations to be 2,049. NCE stations are non-profit, and all LPFM stations are NCE stations, and all are therefore considered to be small entities. Accordingly, the Commission estimates that the majority of radio broadcast stations are small entities. In assessing whether a business concern qualifies as small under the above definition, however, business (control) affiliations must be included. This estimate, therefore, likely overstates the number of small entities that might be affected by the Commission's action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies.

24. Moreover, as noted above, an element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any radio station from the definition of a small business on this basis and therefore may be over-inclusive to that extent. Also, as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the estimates of small businesses to which they apply may be over-inclusive to this extent.

25. Description of Projected Reporting, Record Keeping and Other Compliance Requirements. The rule changes adopted in the Report and Order do not include any notification or recordkeeping requirements.

26. Steps Taken to Minimize Significant Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

27. The rules adopted or amended in the Report and Order, while potentially imposing new substantive requirements on FM and LPFM radio stations, are voluntary in nature, giving applicants for licensing directional FM broadcast stations the option of submitting computer models rather than submitting measured directional patterns. Applicants wishing to continue submitting measured patterns may do so; however, it is anticipated that computer modeling will save applicants money and may increase the accuracy of the directional pattern verification. Significant alternatives would include continuing to require submissions of measured FM directional antenna patterns rather than computer models; however, in the Commission's judgment the option of submitting computer models rather than measurements reduces financial burdens to FM stations when installing an FM directional antenna.

28. Report to Congress. The Commission will send a copy of the Report and Order, including the FRFA, in a report to Congress and the Government Accountability Office pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the Commission will send a copy of the Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register .

29. Paperwork Reduction Act Analysis. The Report and Order may contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. The requirements will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

30. Congressional Review Act. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs that this rule is “non-major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

31. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 4(i), 4(j), 301, 303, 307, 308, 309, 316, and 319 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, 307, 308, 309, 316, and 319, the Report and Order is adopted and will become effective 30 days after publication in the Federal Register .

32. It is further ordered that Part 73 of the Commission's rules is amended as set forth in the Final Rules, and such rule amendments will become effective 30 days after publication in the Federal Register , except that the rule changes to §§ 73.316 and 73.1690, which may contain new or modified information collection requirements, will not become effective until the Office of Management and Budget completes review of any information collection requirements that the Media Bureau determines is required under the Paperwork Reduction Act. The Commission directs the Media Bureau to announce the effective dates for the rule changes to §§ 73.316 and 73.1690 by subsequent Public Notice.

33. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Report and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

34. It is further ordered that the Commission shall send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

35. It is further ordered that, should no petitions for reconsideration or petitions for judicial review be timely filed, MB Docket No. 21-422 shall be terminated and its docket closed.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

Executive Summary

Why we need to publish a rule. Under the Act, a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become endangered in the foreseeable future throughout all or a significant portion of its range). We have determined that the Arizona eryngo meets the definition of an endangered species; therefore, we are listing it as such and designating critical habitat for it. Both listing a species and designating critical habitat can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process.

What this document does. This rule makes final the listing of the Arizona eryngo as an endangered species and the designation of critical habitat for the species under the Act. We are designating critical habitat in two units, on private and public property, totaling 12.7 acres (5.1 hectares) in Pima and Cochise Counties, Arizona.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the Arizona eryngo is primarily at risk of extinction due to habitat changes: physical alteration of cienegas, water loss, and changes in co-occurring vegetation, all of which are exacerbated by the effects of climate change (Factors A).

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation 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 impacts of specifying any particular area as critical habitat.

Please refer to the March 4, 2021, proposed listing and critical habitat rule for the Arizona eryngo (86 FR 12563) for a detailed description of previous Federal actions concerning this species.

A species status assessment (SSA) team prepared an SSA report for the Arizona eryngo. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought peer review of the SSA report. The Service sent the SSA report to eight independent peer reviewers and received four responses. The purpose of peer review is to ensure that our listing determinations and critical habitat designations are based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in the biology, habitat, and threats to the species. The Service also sent the SSA report to 16 partners, including scientists with expertise in wetland management and conservation and plant ecology, for review. We received review from eight partners (Federal, State, and County governments, and universities).

Based on information we received in the comments regarding proposed critical habitat, we are excluding all of proposed Unit 3 (Agua Caliente) from the critical habitat designation for the Arizona eryngo. This exclusion results in a decrease of approximately 0.33 acres (0.13 hectares) from the areas we proposed to designate as critical habitat for the species.

In the March 4, 2021, proposed rule to list the Arizona eryngo as an endangered species and designate critical habitat under the Act (86 FR 12563), we requested that all interested parties submit written comments on the proposal by May 3, 2021. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Arizona Daily Star. We did not receive any requests for a public hearing. All substantive information received during the comment period has either been incorporated directly into this final determination or is addressed below.

As discussed in Supporting Documents above, we received comments from four peer reviewers on the draft SSA report. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the information contained in the SSA report. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions, including updates to the taxonomy of Eryngium, clarifications in terminology and discussions of genetic diversity, and other editorial suggestions. There was one comment on distribution records of the species in Mexico, which were further clarified in the SSA report for the species. Otherwise, no substantive changes to our analysis and conclusions within the SSA report were deemed necessary, and peer reviewer comments are addressed in version 1.0 of the SSA report, which was made available for public review at https://www.regulations.gov under Docket No. FWS-R2-ES-2020-0130 when the March 4, 2021, proposed rule published.

(1) Comment: Several commenters requested that additional habitat be evaluated for designation as unoccupied critical habitat.

Our response: When designating critical habitat, we first evaluate areas occupied by the species and will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied would be inadequate to ensure the conservation of the species. We are not designating any areas currently unoccupied by Arizona eryngo because we cannot with reasonable certainty determine whether they will be essential for the conservation of the species. For long-term viability, the species will require the establishment and protection of additional resilient populations across its historical range to reduce its risk of extinction. While the species may need these areas, we do not have sufficient information at this time to identify specific locations outside the known historical distribution that have the potential conditions necessary to support the species or whether they would contribute to conservation. As has been recently demonstrated, attempts to establish the species at unoccupied locations thought to have appropriate habitat ( e.g., Agua Caliente) have not been successful. Thus, at this time, we are unable to identify which cienegas not currently occupied by Arizona eryngo will be suitable for the reintroduction of the species at this time.

(2) Comment: Several commenters requested that we evaluate Las Cienegas National Conservation Area, St. David Cienega, and Historic Canoa Ranch as critical habitat.

Our response: Recent efforts have been made to establish the species at additional locations that were not historically occupied ( e.g., Las Cienegas National Conservation Area, St. David Cienega, Historic Canoa Ranch). We support these efforts to increase species redundancy ( i.e., increase the number of populations of Arizona eryngo). As required by the Act, we proposed as critical habitat the specific areas within the geographical area occupied by the species at the time of listing that contain the physical or biological features essential to the conservation of the species, which may require special management considerations or protection.

We have more clearly defined what it means for an area to be occupied by Arizona eryngo (see Criteria Used To Identify Critical Habitat, below) to mean the presence of mature adult plants. Recent introductions have consisted of scattered seed or plantings of young plants, most of which did not survive. Without survival and recruitment, it is difficult to determine whether these sites provide the conditions that would support the species and contribute to long-term conservation. Because we do not intend to designate as critical habitat in areas that will not contribute to the conservation of the species, defining “occupied” in this manner will ensure only those areas with a significant likelihood of success will be included as critical habitat. Using this definition, Las Cienegas National Conservation Area, St. David Cienega, and Historic Canoa Ranch are not considered occupied by Arizona eryngo at this time. Section 4(a)(3)(A)(ii) of the Act allows us from time-to-time to revise critical habitat designations, as appropriate. Therefore, if we become aware of additional locations that meet the definition of critical habitat in the future, then we may revise critical habitat at that time.

(3) Comment: Several commenters requested the removal of Agua Caliente as critical habitat due to lack of physical or biological features essential to the conservation of the species present at this site and provided information on land-use and water diversion history for Agua Caliente Spring. This included Pima County, which owns Agua Caliente Park where this unit is located.

Our response: In our designation of critical habitat, we identified that Agua Caliente had the physical and biological features necessary for the conservation of the species. It contains two (saturated soils and areas of open canopy) of the three physical or biological features essential to the conservation of the Arizona eryngo. However, based on recent information on the status of the population, we are no longer certain the physical and biological features present at Agua Caliente are sufficient to support the species. Our analysis determined that excluding proposed Unit 3 (Agua Caliente) outweighs the benefit of inclusion and will not result in the extinction of the species.

(4) Comment: A commenter requested that in the interest of Fort Huachuca, Lewis Springs be excluded from critical habitat under section 4(a)(3)(B) of the Act due to economic impacts; however, the commenter did not provide any specific information as to what these economic impacts entailed.

Our response: Under section 4(a)(3)(B) of the Act, we do not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if we determine that such plan provides a benefit to the species for which critical habitat is proposed for designation. With regard to critical habitat at Lewis Springs, we cannot exempt this area from critical habitat under the Act's section 4(a)(3)(B) because it is not owned or controlled by the Department of Defense, nor designated for its use, and is not subject to an integrated natural resources management plan.

Because the commenter references economic impacts, we considered whether they intended their comment to recommend that these lands be excluded under section 4(b)(2) rather than section 4(a)(3)(B). Based on our economic analysis, the estimated annual incremental costs of consultations for the Lewis Springs unit will be $4,000. Because these costs are relatively minor, and the commenter did not provide any specific information regarding a basis for exclusion, we did not conduct an exclusion analysis.

(5) Comment: A commenter stated we must consider impacts to local governments and national defense and security, including economic impacts that would result from the proposed listing and critical habitat designation.

Our response: With regard to considering impacts of listing the Arizona eryngo, in making a determination as to whether a species meets the Act's definition of an endangered or threatened species, under section 4(b)(1)(A) of the Act the Secretary is to make that determination based solely on the basis of the best scientific and commercial data available. The question of whether or not there may be impacts caused by the listing cannot by law enter into the determination. However, we conducted an evaluation of economic and other impacts in association with the designation of critical habitat under section 4(b)(2) of the Act (IEc 2020, entire). Therefore, we considered the potential economic impacts of the critical habitat designation, including the potential benefits of such designation. Costs of the critical habitat designation would manifest through Section 7 consultations on federally owned lands, with the total anticipated cost of these consultations over a 10-year period being no more than $36,000 (IEc 2020, p. 13). As the critical habitat designations do not occur on military owned lands, it will not have an effect on national security. The economic analysis predicted the critical habitat designation was unlikely to trigger additional State or local regulations (IEc 2020, p. 17).

(6) Comment: A commenter questioned the accuracy of our economic analysis and requested that an updated economic analysis be conducted that includes cumulative effects, fiscal burdens, and a quantification of impacts to water users.

Our response: Our economic analysis represents our best assessment of what the economic impacts may be of the critical habitat designation for the Arizona eryngo. Section 4(b)(2) of the Act requires the consideration of potential economic impacts associated with the designation of critical habitat. The regulatory effect of critical habitat designation under the Act directly impacts only Federal agencies, as a result of the requirement that those agencies avoid “adverse modification” of critical habitat. Specifically, section 7(a)(2) of the Act states that each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary to be critical habitat.

This requirement is the direct regulatory impact of a critical habitat designation and serves as the foundation of our economic analysis. We define it as an “incremental impact” because it is an economic impact that is incurred above and beyond the baseline impacts that may stem from the listing of the species (for example, costs associated with avoiding take under section 9 of the Act); thus, it incrementally adds to those baseline costs. However, in most cases, and especially where the habitat in question is already occupied by the listed species, if there is a Federal nexus, the action agency already consults with the Service to ensure its actions will not jeopardize the continued existence of the species; thus, the additional costs of consultation to further ensure the action will not destroy or adversely modify critical habitat are usually relatively minimal. Because the Act provides for the consideration of economic impacts associated only with the designation of critical habitat, and because the direct regulatory effect of critical habitat is the requirement that Federal agencies avoid destruction or adverse modification of critical habitat, the direct economic impacts of a critical habitat designation in occupied areas are generally limited to the costs of consultations on actions with a Federal nexus, and rest squarely on Federal action agencies. The economic assessment did not find that designating critical habitat would have additional economic impacts beyond the costs of consultations (IEc 2020, entire).

(7) Comment: A comment was made that we failed to comply with the Data Quality Act (DQA), the Information Quality Guidelines, Presidential memoranda, and Secretarial orders on scientific integrity and transparency, and more time is required to collect data on the species to comply with the DQA.

Our response: In making a determination as to whether a species meets the Act's definition of an endangered species or a threatened species, under section 4(b)(1)(A) of the Act, the Secretary is to make that determination based solely on the basis of the best scientific and commercial data available. In addition, under section 4(b)(6)(A), the Act requires the Service to publish a final rule within 1 year from the date we propose to list a species, with certain exceptions. We are obligated to and have followed both of the aforementioned statutory requirements. Additionally, in accordance with the Information Quality Act, also referred to as the Data Quality Act (DQA) (Pub. L. 106-554), the Service has guidelines in place for use and review of data and publications. The Service has complied with these requirements.

(8) Comment: A comment was made that listing will further harm the species and hamper research, and that we must consider the benefits gained by not listing the species and weigh these against the dangers of an incorrect listing.

Our response: In making a determination as to whether a species meets the Act's definition of an endangered species or a threatened species, under section 4(b)(1)(A) of the Act, the Secretary is to make that determination based solely on the basis of the best scientific and commercial data available. The question of whether or not there may be some negative or positive outcome to the listing cannot by law enter into the determination. On and after the effective date of this rule (see DATES , above), we are available to support and guide researchers in applying for recovery permits issued under section 10(a)(1)(A) of the Act to conduct research and implement actions to recover the species.

(9) Comment: Commenters requested a 90-day extension of the public comment period, and a commenter requested a 5-year extension on the final rule to gather more scientific information on the species, specifically potential sites in Mexico.

Our response: We consider the 60-day comment period for the March 4, 2021, proposed rule to have provided the public a sufficient opportunity for submitting comments on our proposal. In addition, as noted in our response to (7) Comment, above, the Act requires the Service to publish a final rule within 1 year from the date we propose to list a species. This 1-year timeframe can only be extended if there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination or revision concerned, but only for 6 months and only for purposes of soliciting additional data. Based on the comments we received and data evaluated, we did not identify substantial disagreement regarding the sufficiency or accuracy of the data. The comments expressing disagreement requested time to collect new data to inform this finding but did not provide conflicting or additional data that we did not consider in the proposed rule. Per section 4(b) of the Act and the Interagency Policy on Information Standards under the Act, we considered the best scientific and commercial data available regarding the Arizona eryngo to evaluate its potential status under the Act. We solicited peer review of our evaluation of the available data, and our peer reviewers supported our analysis. Science is a cumulative process, and the body of knowledge is ever-growing. In light of this, the Service will always take new research into consideration. If plausible new research supports amendment or revision of this rule in the future, the Service will modify the rule consistent with the Act and our established work priorities at that time.

(10) Comment: A commenter requested that we consider a rule issued under section 4(d) of the Act for this species that would facilitate propagation by nurseries and transportation of Arizona eryngo.

Our response: Section 4(d) of the Act directs the Service to issue regulations deemed necessary and advisable to provide for the conservation of threatened species. It allows the Service to promulgate rules for species listed as threatened (not endangered) that provide flexibility in implementing the Act. We are listing the Arizona eryngo as an endangered species; thus, we cannot apply a rule issued under section 4(d) of the Act for this species. However, a section 10(a)(1)(A) permit may be requested to support scientific research or propagation.

(11) Comment: A commenter stated that the Arizona eryngo was photographed in 2019 in juniper oak pine woodland in Sonora and asked what is known of the species range in oak woodlands.

Our response: We contacted the observer who documented the specimen in Sonora because the species photographed did not appear to be Arizona eryngo. The observer subsequently visited the University of Arizona Herbarium to compare the species in question to specimens of Arizona eryngo. Upon careful examination, the observer determined that the species documented in the pine-oak woodland in Sonora was E. longifolium. SEINet now reflects this updated information (Record ID: e9c3315c-828f-4210-8fcd-d24451c712dd).

(12) Comment: A commenter inquired about the distribution of Arizona eryngo in Mexico, asked who has searched for the species there, and questioned the assertion of Stromberg et al. 2020 (entire) that reports of the species farther south in Mexico are likely not valid.

Our response: A researcher from Mexico, who received funding under the Act's section 6, searched 55 locations in Sonora and Chihuahua for six rare plants, including the Arizona eryngo. He found the species at 2 of 55 sites (Sánchez Escalante et al. 2019), which were the Rancho Agua Caliente and Ojo Vareleño sites discussed in the SSA report. This combined with Stromberg et al. 2020 (entire) represents the best scientific and commercial data available on the species' distribution in Mexico.

A thorough review of the taxonomy, life history, and ecology of the Arizona eryngo ( Eryngium sparganophyllum ) is presented in the SSA report, version 1.0 (Service 2020). The Arizona eryngo is an herbaceous perennial flowering plant in the Apiaceae (carrot) family that is native to Arizona and New Mexico in the United States, and to Sonora and Chihuahua in Mexico. The species occurs in moist, organic alkali soils found in spring-fed cienegas (aridland wetlands) supported by adequate groundwater.

Arizona eryngo grows to a height of about 1.5 meters (m) (5 feet (ft)) with long, linear, parallel-veined leaves that emerge from a basal rosette. The plant is conspicuous when flowering in June through September (Stromberg et al. 2020, p. 179; New Mexico Rare Plants 2013, p. 1). The flowers are cream-colored and clustered in dense heads. Dry fruits ripen in September and October. The species is believed to live well over 10 years, and many pollinators have been documented interacting with the species. Arizona eryngo reproduces through pollination, creating genetically unique individuals, as well as vegetatively via rhizomes (underground stems) producing clones, which are genetically identical (Stromberg et al. 2020, p. 179).

The Arizona eryngo only occurs in spring-fed cienega wetlands and grows best in full sun in areas with few nonnative plant species, limited woody vegetation, or other vegetation that may shade or otherwise outcompete it. The species has been found in conditions from standing water up to 2 centimeters (cm) (0.8 inches (in)) deep to soil that is dry at the surface but is moist to saturated several centimeters into the soil (Stromberg et al. 2020, p. 177). It is hypothesized that flowering is determined, in part, by soil moisture availability ( i.e., plants do not flower in drier conditions when the plants are more stressed) and that ramets (clones) are produced during drier periods (Li 2019, p. 8; Stromberg et al. 2020, p. 179). Distribution of Arizona eryngo within cienegas appears to be associated with water availability; drier conditions favor the growth of trees that outcompete the species, and very wet conditions ( i.e., perennially standing water) favor the growth of bulrush ( Schoenoplectus americanus ) that similarly outcompetes Arizona eryngo (Li 2019, p. 4). Soils inhabited by Arizona eryngo are high in organic matter, saline, and alkaline, and have salts on soil surfaces in the seasonally dry periphery (Stromberg et al. 2020, p. 177).

The Arizona eryngo is known historically from six sites: three sites in Arizona and one in New Mexico in the United States, and one site in Sonora and one site in Chihuahua in Mexico (Sánchez Escalante et al. 2019, pp. 16-17; Stromberg et al. 2020, p. 175). Given the historical distribution of functional aridland cienegas (greater than 95 percent of the historical area of cienegas in the southwestern United States and northwestern Mexico is now dry (Cole and Cole 2015, p. 36)), it is likely that Arizona eryngo populations were historically more abundant, occurred closer to one another, and were more connected (through pollination) than they are currently.

The species has been extirpated from one site in Arizona and one site in New Mexico but remains extant at the other four sites (two in Arizona; one in Sonora, Mexico; and one in Chihuahua, Mexico). Additionally, efforts have been on-going to reintroduce the species to the historical site in Arizona from which it was extirpated (Agua Caliente) and to introduce the species to new sites (Historic Canoa Ranch in Pima County, Arizona, and Las Cienegas National Conservation Area in Pima and Santa Cruz Counties, Arizona) within its general historical range (Li 2021a, p. 3; Li 2021b, pp. 6-12). A handful of plants now exist at some of these reintroduction sites, such as Agua Caliente, but these efforts have not yet been successful at establishing viable populations. With the exception of the reintroduced plants at Agua Caliente, which is about 6 kilometers (km) (3.7 miles (mi)) from the La Cebadilla population, other sites are about 90 to 335 km (56 to 208 mi) apart from one another.

Reports of the species farther south in the Mexican states of Durango, Jalisco, Nayarit, Zacatecas, Michoacán, and Guerrero are likely not valid because the herbarium specimen from Durango, Mexico, is morphologically different from northern specimens (Stomberg et al. 2019, p. 7). Additionally, a report of the species occurring in Zacatecas, Nayarit, and Jalisco lacks supporting herbaria records (Stromberg et al. 2020, p. 179), and specimens collected from Michoacán and Guerrero appear to be another distinct taxon due to differences in flower color, habitat, elevation, and flowering time (Stromberg et al. 2020, p. 179). Because the species is obvious (tall with conspicuous flowers and locally abundant) and most cienegas, particularly ones still extant in Arizona and New Mexico, have been surveyed (AGFD 2019, p. 7), it is unlikely that new populations will be found. The six historical and current populations are discussed in greater detail below:

Las Playas, New Mexico, United States (Extirpated) —The species historically occurred at Playas or Las Playas Springs in the Playas Basin, east of the Animas Mountains in Hidalgo County, but it has not been found since 1851, and is believed to be extirpated (Sivinski 2018, p. 21; Stromberg et al. 2020, p. 176). The springs were diminished, and Las Playas was found primarily dry by the mid to late 1950s (Sivinski 2018, p. 27; Stromberg et al. 2020, p. 176). The cienega at Las Playas is now considered dead (Sivinski 2018, p. 8) due to agricultural and industrial ( i.e., copper mining) dewatering (Stromberg et al. 2020, p. 176). “Dead cienegas” are historical cienegas that no longer have groundwater at or near the ground surface and likely have water tables so severely depleted that restoration, given today's techniques and economics, is not feasible (Sivinksi 2018, p. 14).

Agua Caliente, Arizona, United States (Extirpated) —Arizona eryngo historically occurred at the Agua Caliente Ranch east of Tucson in Pima County, Arizona, within the Santa Cruz River Basin (Stromberg et al. 2020, p. 176). This population was extirpated likely due to multiple manipulations of the site that eliminated cienega habitat, including, but not limited to, water diversion and vegetation clearing for agricultural activities, pond impoundment, groundwater pumping, and spring modification (Stromberg et al. 2020, p. 177; SWCA 2002, p. 11).

The property is now owned by Pima County Natural Resources, Parks and Recreation and is managed as a regional park (Pima County Parks and Recreation Department 1989, p. 2; Friends of Agua Caliente 2020, entire). Agua Caliente Regional Park includes human-made ponds that were once fed by water channeled from the springs. As a result of reduced spring flows and extended drought, in 2004, Pima County began pumping groundwater to maintain the main pond (Pond 1), a warm spring (Pima County 2021, p. 2). Restoration of Pond 1, which included the use of soil sealant to reduce seepage and conserve water, began in 2019, and was completed in 2020 (Pima County 2020a, entire). As part of the restoration, select palm trees ( Phoenix spp.) and invasive cattails ( Typha spp.) were removed to encourage growth of native species, and a small wetland on the northwest side of Pond 1 was created (Pima County 2020a, entire).

Experimental reintroductions of Arizona eryngo began in 2017, using plants grown in a nursery with seeds collected from La Cebadilla (Fonseca 2018, entire; Stromberg et al. 2020, p. 182). The initial reintroduction effort in 2017 of 20 plants had limited success due to javelina ( Tayassu tajacu ) damage, as well as placement of the plants at sites where they experienced water stress (Fonseca 2018, entire). The second effort in 2018 of 15 plants had improved success, but a number of plants were eaten by gophers ( Thomomys bottae ) (Li 2019, p. 6) or died of other causes. More recent reintroductions have resulted in the establishment of additional plants, including in the small wetland and wildlife island of Pond 1; however, efforts have not yet resulted in the establishment of a self-sustaining Arizona eryngo population.

La Cebadilla, Arizona, United States (Extant) —Arizona eryngo occurs in the La Cebadilla Cienega adjacent to the Tanque Verde Wash east of Tucson in Pima County, Arizona, within the Santa Cruz River basin (Stromberg et al. 2020, p. 177). The cienega is located on lands owned by La Cebadilla Estates and the Pima County Regional Flood Control District; the majority of plants occur on the privately owned portion of the cienega. In 2019, Arizona eryngo was documented in a number of colonies with a total spatial extent of 0.4 hectares (1.11 acres) (Li 2020a, p. 1). Some colony boundaries are defined by the presence of bulrush and tree canopy (Li 2019, p. 1).

The Arizona eryngo population at La Cebadilla is estimated to be about 30,000 aggregates—groups of clones, which are genetically identical individuals that result from vegetative reproduction (Li 2020b, p. 1). Each clone has a unique basal stem, and multiple clones can form a clustered aggregate that resembles an individual plant (Li 2020a, p. 2). While this is the largest of the four extant populations, the plants occur in a very confined space.

The homeowners' association of La Cebadilla Estates manages the cienega (the portion not owned by the Pima County Regional Flood Control District) and nearby La Cebadilla Lake (also referred to as a pond, to the west of the cienega). The homeowners' association has enacted covenants that prevent development of the cienega or sale to private developers (La Cebadilla Estates 2005, entire). The spring is located on the western edge of the Cienega, and a concrete spring box diverts some water to sustain the lake (Fonseca 2019, p. 2; Stromberg et al. 2020, p. 177). Pima County Regional Flood Control District manages their portion of the cienega as natural open space, which has a restrictive covenant that limits development and protects natural resources on the property. Both La Cebadilla Estates and Pima County Regional Flood Control District are supportive of continued conservation of the cienega and have implemented or authorized conservation actions at the site.

Lewis Springs, Arizona, United States (Extant) —Arizona eryngo occurs in the Lewis Springs Cienega just to the east of the San Pedro River in Cochise County, within the San Pedro River Basin (Stromberg et al. 2020, p. 177). The cienega is located within the San Pedro Riparian National Conservation Area (SPRNCA) managed by the Bureau of Land Management (BLM). The San Pedro riparian area, containing about 64 km (40 mi) of the upper San Pedro River, was designated by Congress as a National Conservation Area in 1988. The primary purpose for the designation is to conserve, protect, and enhance the desert riparian ecosystem, a rare remnant of what was once an extensive network of similar riparian systems throughout the Southwest.

The Lewis Springs Complex currently has five groundwater outflows and is comprised of multiple elongated wetlands generally oriented northwest-southeast along a slope, totaling 1.2 hectares (3 acres) (Radke 2013, entire; Simms 2019, entire; Stromberg et al. 2020, p. 177; Li 2020a, p. 2). As of September 2019, four of the eight wetlands support Arizona eryngo (Simms 2019, entire). Within these four wetlands, Arizona eryngo occurs in six colonies with discrete boundaries, the spatial extent of which was about 0.04 hectares (0.1 acres) in 2019 (Li 2020a, p. 1). Population estimates have been over 1,000 plants in recent years (Stromberg et al. 2020, p. 177; Li 2020a, p. 1; Li 2020b, p. 1), with the most recent estimate of 1,813 plants (Li 2020b, p. 1).

BLM has conducted some removal of the nonnative Johnsongrass ( Sorghum halepense ) at Lewis Springs and is planning for additional removal of the species. BLM is also planning experimental removal of the native upland plant baccharis ( Baccharis spp.) at Lewis Springs, as well as establishment of additional populations and/or subpopulations of Arizona eryngo at suitable sites within Lewis Springs and the SPRNCA. BLM has collected seeds for propagation, banking, and seeding trials, and has conducted one seeding trial at Lewis Springs.

Rancho Agua Caliente, Sonora, Mexico (Extant) —Arizona eryngo occurs in the Agua Caliente Cienega on the privately owned Rancho Agua Caliente east of Esqueda in the municipality of Nacozari de García (Sánchez Escalante et al. 2019, p. 16; Stromberg et al. 2020, p. 179). Rancho Agua Caliente is an active cattle ranch. Based on aerial photographs, the cienega appears to be about 5 hectares (12.3 acres) (Stromberg et al. 2020, p. 179); however, it may only be about 1.5 hectares (3.7 acres) (Sánchez Escalante 2019, pers. comm.).

This cienega is the only known site for Arizona eryngo in Sonora. In 2018, hundreds of Arizona eryngo, including juveniles, occurred along the marsh near the spring within a nearly 1-hectare (2.5-acres) area (Sánchez Escalante et al. 2019, p. 16; Sánchez Escalante 2019, pers. comm.). The estimated area occupied by Arizona eryngo is larger than the other sites, while the population estimate is quite low, thus indicating the population is more sparse or patchy than La Cebadilla or Lewis Springs. Based on photography of the site, it appears that Rancho Agua Caliente currently supports areas with a range of soil moisture (from standing water to dry soils) and open sun conditions.

Ojo Vareleño, Chihuahua, Mexico (Extant) —Arizona eryngo occurs at a privately owned hot springs spa, El Ojo Vareleño, located northwest of the municipality of Casas Grandes in Chihuahua (Sánchez Escalante et al. 2019, p. 9; Stromberg et al. 2020, pp. 178). The site is within the San Miguel River Basin at the base of the Piedras Verdes Mountains (Stromberg et al. 2020, p. 178). The extent of the cienega is currently about 1 hectare (2.5 acres) and supports about 56 adult plants (Sánchez Escalante et al. 2019, p. 17) that occupy an area of about 0.075 hectares (0.18 acres) (Sánchez Escalante 2019, pers. comm.). No juveniles were documented.

Based on photography of the site, it appears that Ojo Vareleño currently supports areas with a range of soil moisture (from standing water to dry soils) and sunlight conditions (from open sun to highly shaded). The nonnative giant reed ( Arundo donax ) invasion at the site is creating conditions with high amounts of shade and little to no space for other plants. Springflow is collected in concrete spa ponds (Sánchez Escalante et al. 2019, p. 28), which likely affects the natural hydrology of the site.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an endangered species or a threatened species. The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the Act's definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be listed as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket FWS-R2-ES-2020-0130 on https://www.regulations.gov.

To assess Arizona eryngo's viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability. We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

Using various timeframes and the current and projected future resiliency, redundancy, and representation, we describe the species' levels of viability over time. For the Arizona eryngo to maintain viability, its populations or some portion thereof must be resilient. A number of factors influence the resiliency of Arizona eryngo populations, including occupied area, abundance, and recruitment. Elements of the species' habitat that determine whether Arizona eryngo populations can grow to maximize habitat occupancy influence those factors, thereby influencing the resiliency of populations. These resiliency factors and habitat elements are discussed in detail in the SSA report and summarized here.

Larger plant populations have a lower risk of extinction than smaller populations (Menges 2000, p. 78). Small populations are less resilient and more vulnerable to the effects of demographic, environmental, and genetic stochasticity and have a higher risk of extinction than larger populations (Matthies et al. 2004, pp. 481, 485). Small populations may experience increased inbreeding, loss of genetic variation, and ultimately a decreased potential to adapt to environmental change (Matthies et al. 2004, p. 481). When rare plant populations are very small (fewer than 100 individuals), they may suffer from inbreeding depression (Maschinski and Albrecht 2017, p. 392). Furthermore, fewer pollinators visit plants in small and isolated populations, which may lead to reduced pollination and lowered fecundity (Matthies et al. 2004, p. 482).

For populations of Arizona eryngo to be resilient, abundance should be high enough that local stochastic events do not eliminate all individuals, allowing the overall population to recover from any one event. A greater number of individuals in a population increases the chance that a portion of the population will survive. The necessary abundance or minimum viable population (MVP) size for Arizona eryngo is unknown; however, estimations can be attained from literature. For example, Pavlik (1996, p. 137) recommends MVP sizes ranging from 50 individuals to 2,500 individuals for the conservation of rare plants, depending on various life-history characteristics of the taxon. Some of the Arizona eryngo's life-history characteristics indicate that an MVP may require higher abundance, while other characteristics indicate that lower abundances may be sufficient. For example, the species is a perennial and commonly produces ramets, which means that fewer individuals are needed to achieve an MVP. Conversely, it is an herbaceous plant, which means that an MVP may require higher abundance. The other characteristics are unknown for this species. Based on our current understanding of the species' life history, we conclude that an initial MVP in the middle of the spectrum provided by Pavlik (1996, p. 137) is appropriate. Therefore, a population size of 1,225 may be needed to achieve high resiliency for the Arizona eryngo.

Determinations of MVP usually take into account the effective population size, rather than total number of individuals; 10 genetically identical individuals (for example, clones or ramets) would have an effective population size of one. In the case of the Arizona eryngo, we have estimates of abundance of individuals for each population, but we do not know the ratio of ramets to genetically unique individuals, although evidence indicates the species is highly clonal. In cases like this, Tependino (2012, p. 946) suggests adjusting the stem counts of rare clonal species to adjust for the inflated population size from the inclusion of ramets. Therefore, to account for the clonal nature of the Arizona eryngo, to estimate our final MVP we added 50 percent to the estimated MVP, which resulted in a total of about 1,840 plants needed to be a highly resilient population.

Arizona eryngo populations must also reproduce and produce sufficient amounts of seedlings and ramets such that recruitment equals or exceeds mortality. Ideally, we would know key demographic parameters of the plant ( i.e., survival, life expectancy, lifespan, the ratio of ramets to genetically unique individuals) to estimate the percentage of juveniles required in a population to achieve population stability or growth. Because we currently do not know any of these parameters, we are using the presence of juveniles as an important demographic factor influencing resiliency, because it reflects successful recruitment.

Current population size and abundance reflects previous influences on the population and habitat, while reproduction and recruitment reflect population trends that may be stable, increasing, or decreasing in the future. For example, a large, dense population of Arizona eryngo that contains mostly old individuals may be able to withstand a single stochastic event over the short term, but it is not likely to remain large and dense into the future, as there are few young individuals to sustain the population over time. A population that is less dense but has many young individuals may be likely to grow denser in the future, or such a population may be lost if a single stochastic event affects many seedlings at once. Therefore, the presence of young individuals is an important indicator of population resiliency into the future.

Highly resilient Arizona eryngo populations must occupy cienegas large enough such that stochastic events and environmental fluctuations that affect individual plants or colonies do not eliminate the entire population. Repopulation through seed dispersal and germination and ramet production within the cienega can allow the population to recover from these events.

Larger functional cienegas are likely to support larger populations of Arizona eryngo and are more likely to provide patches of suitable habitat when small stochastic events and environmental fluctuations occur. For example, during drought years, areas closer to spring seeps and possibly areas with natural depressions ( i.e., topographic variation) may retain more moisture throughout the year than areas farther away from seeps and slightly higher in elevation. Conversely, during years with heavy rainfall, slightly higher elevation areas may retain moist soils that are not inundated year-round, providing suitable habitat for the species.

Areas currently occupied by Arizona eryngo range from about 0.04 hectares (0.1 acre) to 0.9 hectares (2.2 acres). Based on historical and current estimates of cienega size and area occupied by Arizona eryngo, we approximate that at minimum a resilient Arizona eryngo population should occupy greater than 1 hectare (2.5 acres) within a functional cienega.

Arizona eryngo populations also need moist to saturated soils year-round. Arizona eryngo has been documented in standing water up to 2 centimeters to soil that is dry at the surface but saturated several centimeters into the soil (Stromberg et al. 2020, p. 177). It is hypothesized that flowering is determined, in part, by soil moisture availability ( i.e., plants do not flower in drier conditions when the plants are more stressed) and that ramets are produced during drier periods (Li 2019, p. 8; Stromberg et al. 2020, p. 179). Seedling recruitment may be episodic, with greater recruitment success in wetter years. Soils must remain sufficiently moist for successful seedling recruitment, particularly in the hottest/driest time of the year (normally May/June). If soils become too dry, other more drought-tolerant species are likely to encroach and outcompete the Arizona eryngo (Simms 2019, p. 6; Li 2019, p. 1), or if or if it becomes very dry such that the roots are not in moist soil, the plant is likely to die. If the soil is inundated with water (such that there is standing water on the surface) for too long, other species that grow more aggressively in mesic conditions are likely to outcompete the Arizona eryngo (Li 2020, p. 2).

Highly resilient Arizona eryngo populations require full sun. Under canopy cover, the species grows less densely, and flowering is reduced. Tall native and nonnative vegetation appears to outcompete and suppress growth of the Arizona eryngo. Additionally, dense vegetation appears to hinder seedling recruitment (Li 2021b, pp. 3-4). While these species may compete for sunlight, water, and nutrients, lack of sunlight may be a primary factor driving the absence or decreased abundance of the Arizona eryngo.

We reviewed the potential risk factors ( i.e., threats, stressors) that could be affecting the Arizona eryngo now and in the future. In this final rule, we will discuss only those factors in detail that could meaningfully impact the status of the species. Those risks that are not known to have effects on Arizona eryngo populations, such as overutilization for commercial and scientific purposes and disease, are not discussed here but are evaluated in the SSA report. The primary risk factors affecting the status of the Arizona eryngo are: (1) Physical alteration of cienegas (Factor A), (2) water loss (Factor A), and (3) changes in co-occurring vegetation (Factor A). These factors are exacerbated by the ongoing and expected effects of climate change. Direct harm or mortality due to herbivory or trampling (Factor C) may also affect individuals and the seedbank, but not at levels likely to affect species viability.

Historically, cienegas were more common and larger than they are today. Greater than 95 percent of the historical area of cienegas in the southwestern United States and northwestern Mexico is now dry (Cole and Cole 2015, p. 36). Functional cienegas were much more common prior to the late 1800s, as evidenced by pollen and fire records, General Land Office survey notes, and early trapper and settler diaries (Hendrickson and Minckley 1985, p. 131; Fonseca 1998, p. 111; Cole and Cole 2015, p. 36; Brunelle et al. 2018, p. 2). Estimates of cienega abundance in the International Four Corners Region of the Southwest (Arizona, Sonora, New Mexico, and Chihuahua) vary from hundreds to thousands (Cole and Cole 2015, p. 36; Sivinski 2018, entire). Of the 155 cienegas that Cole and Cole (2015, p. 36) identified in the International Four Corners Region, 87 (56 percent) are either dead or so severely compromised that there is no prospect for their restoration. In addition to the reduced abundance of cienegas in the International Four Corners Region, the remaining cienegas are greatly reduced in size, and due to many being severely incised, they are more similar to creeks than marshes (Cole and Cole 2015, p. 36).

A number of complex factors, many of which are interrelated, led to the historical loss and degradation of cienegas and continue to contribute to this loss today. The primary factors include intensive grazing of domestic livestock, the removal of beavers ( Castor canadensis ) from regional streams and rivers, and agricultural recontouring (Minckley et al. 2013a, p. 214; Cole and Cole 2015, p. 32). Intensive overgrazing by sheep and cattle from the late 1500s to the late 1800s led to barren soil, erosion, headcutting (erosional feature in a stream that contributes to lowering the water table of the surrounding system), and increased frequency of or intensity of destructive floods, all leading to the alteration or complete destruction (complete loss of ecological function) of cienegas (Minckley et al. 2013a, p. 214; Cole and Cole 2015, p. 32). Beaver dams, once numerous within the range of the Arizona eryngo, slowed water and created pools and wetlands along water courses, and enhanced groundwater recharge; however, high levels of beaver trapping in the 1800s resulted in increased erosion and channel cutting of these once complex, shallow wetlands (Gibson and Olden 2014, p. 395; Cole and Cole 2015, p. 32). Additionally, early settlers recontoured ( e.g., diverted, dammed, channelized) cienegas for agricultural, mining, disease control, and other purposes; this resulted in further channelization and concentrated flow, greatly reducing the size of cienegas and further lowering the water table (Cole and Cole 2015, p. 32; Minckley et al. 2013b, p. 78).

We expect that Arizona eryngo populations were more widespread and occurred at historical cienegas that have lost their ecological function due to physical alteration, such that populations were more abundant, occurred closer to one another, and were more connected (through pollination and seed dispersal) than they are currently. As a result of these lost cienegas, the four extant Arizona eryngo populations are now disjunct.

Although grazing was one cause of the loss of historical cienega habitat, grazing and trampling by livestock occur only occasionally at the remaining Arizona eryngo populations. No grazing is authorized at Lewis Springs, and we are not aware of any grazing occurring at La Cebadilla and Ojo Vareleño. Trespass livestock could enter Lewis Springs and affect habitat in the cienega; although there was no evidence of cattle in 2018 or 2019, there was evidence ( i.e., scat and light trailing) of a trespass horse in the area when Service biologists visited the site in 2019. Cattle are present at Rancho Agua Caliente, Sonora, and the habitat is somewhat disturbed by cattle (Sánchez Escalante et al. 2019, p. 16). Livestock ( e.g., livestock trailing and gathering) can trample vegetation and expose and compact soil, resulting in habitat erosion and altered hydrological function, but the effects of livestock are dependent on many factors such as the intensity, duration, and timing of grazing. In the absence of other forms of disturbance ( e.g., fire), it is possible that selective, well-managed livestock grazing in the winter or spring could create habitat disturbance and open sun conditions favoring Arizona eryngo seedling establishment.

Other physical alterations that occurred in the past likely continue to affect extant populations of Arizona eryngo through changes in the natural hydrology of cienegas supporting the species. For example, a berm that has been present at La Cebadilla since at least 1941, as well as various houses and roads adjacent and near the cienega, all affect the natural hydrology of the site. Similarly, the railroad that runs parallel to Lewis Springs likely affects the hydrology of the cienega. Unlike the historical physical alterations that severely degraded cienegas, these alterations (berm, railroad, houses, etc.) have not destroyed cienega function.

Water loss in cienegas poses a significant threat to the Arizona eryngo. Causes of water loss are complex, but the primary causes at cienegas historically or currently supporting Arizona eryngo are: (1) Groundwater pumping/withdrawal, (2) spring modification, (3) water diversion, and (4) drought. These stressors are all exacerbated by climate change. Groundwater pumping or withdrawal leads to aquifer depletion and no or reduced outflow from springheads. Modification of springheads reduces or eliminates springflow. Water diverted from springheads reduces or eliminates the amount of water supporting the cienega. Drought and warming also reduce springflow and the amount of water in cienegas. Reduction in winter rain particularly leads to reduced aquifer recharge. Climate change is expected to exacerbate drought conditions, increase surface temperatures and evapotranspiration, and reduce winter precipitation, all of which may lead to a reduction in aquifer recharge and increased cienega drying.

Water loss in cienegas reduces the quantity and quality of habitat for the Arizona eryngo. The species requires very moist to saturated soils and possibly some standing water for seed germination. As water is lost from cienegas, soils become drier, reducing habitat quality and allowing woody and/or invasive vegetation to establish, further reducing available habitat.

Water loss from cienegas caused the extirpation of the species at two of the six cienegas known to historically support the Arizona eryngo (Las Playas in New Mexico, and Agua Caliente in Arizona), and all populations continue to be exposed to water loss. The sources of water loss are discussed further below.

Groundwater withdrawal— The population at Las Playas was extirpated primarily due to groundwater pumping for agriculture and the Playas Smelter that caused the desiccation of the spring (Sivinski 2018, p. 27; Stromberg et al. 2020, p. 176). Groundwater withdrawal is also occurring near Lewis Springs, La Cebadilla, and Agua Caliente. The use of groundwater for agriculture, industry, and urban and rural development has enabled significant human population growth in the arid Southwest. Increased groundwater withdrawal can reduce or eliminate springflow, thereby eliminating wetlands altogether (Johnson et al. 2016, p. 52).

The largest municipalities in the Sierra Vista subwatershed, within which Lewis Springs occurs, are Sierra Vista, Bisbee, Tombstone, and Huachuca City. Within these areas, the human population is increasing, as is development distributed in rural parts of the subwatershed (Leake et al. 2008, p. 1). This growing population is dependent on groundwater to meet its water consumption needs. Water outflow from the subwatershed, including water withdrawn by pumping, exceeds natural inflow to the regional aquifer within the subwatershed (Leake et al. 2008, p. 2). As a result, groundwater levels in parts of the subwatershed are declining, and groundwater storage is being depleted ( i.e., a negative water budget).

Groundwater pumping in the area of Lewis Springs, up to several kilometers away, may be affecting the regional groundwater flow to the wetlands along the San Pedro River, including Lewis Springs (Stromberg et al. 2020, p. 181). The continued decline of groundwater levels upgradient from perennial river reaches will eventually diminish the base flow of the San Pedro River and impact the riparian ecosystem within the SPRNCA (Leake et al. 2008, p. 2). This groundwater use over the past century has been so profound that the effects of pumping over the past century will eventually capture and eliminate surface flow from the river, even if all groundwater pumping were to stop (Gungle et al. 2016, p. 29). Models show the area of Lewis Springs as being one of the areas of greatest groundwater loss in the basin (Leake et al. 2008, p. 14).

The aquifer supporting the La Cebadilla Springs could be reduced from numerous private wells (including the Tanque Verde Guest Ranch) producing water from the aquifer that feeds the springs (Eastoe and Fonseca 2019, pers. comm.). It is unknown how quickly pumping a mile or two away from the springs might affect the springs themselves (Eastoe and Fonseca 2019, pers. comm.).

We do not have information on the source of water supplying the springs or about the amount of groundwater use at Rancho Agua Caliente or Ojo Vareleño, both in Mexico.

Spring modification— The Arizona eryngo population at Agua Caliente was extirpated due to a number of manipulations of the site that eliminated cienega habitat, including, but not limited to, water diversion and vegetation clearing for agricultural activities, pond impoundment, groundwater pumping, and spring modification ( i.e., the springs were blasted in the 1930s and again in the 1960s) that significantly decreased the water flow (Stromberg et al. 2020, p. 177; Pima County 2021, p. 16; Friends of Agua Caliente 2020, entire; SWCA 2002, p. 11).

Water diversion— The Arizona eryngo population at La Cebadilla has been exposed to water diversion for many decades; this diversion may have led to a reduction in the size of the cienega, but enough water still flows to maintain the cienega and support the largest documented population (Fonseca 2019, p. 2; Stromberg et al. 2020, p. 177). Cienega habitat was eliminated from Agua Caliente due to multiple manipulations, including diversion of spring water via canals and pipes for agricultural purposes and pond impoundment (Pima County 2021, p. 16).

Less is known about water loss associated with the cienegas supporting the Arizona eryngo in Mexico, but we are aware that the municipality of Casas Grandes is interested in installing a pipeline from the spring at El Ojo Vareleño to supply water to the Universidad Tecnológica de Casas Grandes. Currently at Ojo Vareleño, springflow is collected in concrete spa ponds, which likely affects the natural hydrology of the site.

Drought and warming— All Arizona eryngo populations are exposed to drought, as well as warming temperatures from climate change. Decreased precipitation and increased temperatures due to climate change will exacerbate declines in surface and groundwater levels, which will cause further drying of cienega habitat required by the Arizona eryngo.

Climate models indicate that the transition to a more arid climate is already underway and predict that in this century the arid regions of the southwestern United States will become drier ( i.e., decreased precipitation) and warmer ( i.e., increased surface temperatures), and have fewer frost days, decreased snow pack, increased frequency of extreme weather events (heat waves, droughts, and floods), declines in river flow and soil moisture, and greater water demand by plants, animals, and humans (Archer and Predick 2008, p. 23; Garfin et al. 2013, pp. 5-6). Increasing dryness in the southwestern United States and northern Mexico is predicted to occur as early as 2021-2040 (Seager et al. 2007, p. 1181). Climate modeling of the southwestern United States shows consistent projections of drying, primarily due to a decrease in winter precipitation (Collins et al. 2013, p. 1080). For both Pima and Cochise Counties, where the La Cebadilla and Lewis Springs populations occur, the average daily maximum temperature, under both lower ( i.e., representative concentration pathway (RCP) 4.5) and higher ( i.e., RCP 8.5) emissions scenarios, will increase by mid-century (Climate Explorer 2020).

Climate change over the 21st century is projected to reduce renewable surface water and groundwater resources in most dry subtropical regions (IPCC 2014, p. 69). Over the next 100 years, groundwater recharge in the San Pedro basin is expected to decrease 17 to 30 percent, depending on the climate scenario considered (Serrat-Capdevila et al. 2007, p. 63), and average annual base flow will be half the base flow in 2000. As the area gets drier, the San Pedro aquifer groundwater overdraft will become more severe as recharge declines and groundwater pumping increases (Meixner et al. 2016, p. 135). For the purposes of our analysis, we chose RCP 4.5 and RCP 8.5 (IPCC 2014, p. 8) to assess future condition of the Arizona eryngo. These climate scenarios were incorporated into our future scenarios of the status of the Arizona eryngo in the SSA report.

Summary of water loss— In summary, water loss has caused the extirpation of two of six known populations of the Arizona eryngo and has affected the current viability of all extant populations. Both extant U.S. populations are exposed to water loss through groundwater withdrawal, and one of these (La Cebadilla) is also exposed to spring diversion. Groundwater withdrawal, particularly when exacerbated by climate change, is a primary threat to the survival of the Arizona eryngo at Lewis Springs and La Cebadilla. Less is known about water loss associated with the two populations in Mexico, but spring diversion is proposed at one site supporting the Arizona eryngo, and it is likely that the species is vulnerable to groundwater withdrawal. Drought and warming as a result of climate change affects all populations, particularly when combined with groundwater withdrawal and diversion.

The invasion of vegetation that reduces full sun conditions poses a threat to the Arizona eryngo. Changes in vegetation at cienegas are primarily from fire suppression, introduction of nonnative plant species, decreased flood events, and changes in hydrology and climate. Prior to the arrival of European settlers, burning of cienegas by indigenous people was frequent enough to exclude most woody plants ( e.g., hackberry ( Celtis spp.), buttonbush ( Cephalanthu s spp.), cottonwood ( Populus spp.), ash ( Fraxinus spp.), and willow ( Salix spp.)) and suppress bulrush from cienegas and promote growth of native grasses (Davis et al. 2002, p. 1; Cole and Cole 2015, p. 32). Extant cienegas now have less diversity of annual and disturbance-adapted native understory species and an increase in native woody, clonal, and nonnative plants (Stromberg et al. 2017, p. 10). As water levels in cienegas decrease, woody plants invade without regular disturbance ( e.g., fires, floods) to the system (Huxman and Scott 2007, p. 1). Shifts from herbaceous wetland vegetation to more deeply rooted riparian trees have been well documented at wetlands with lowered water tables (Stromberg et al. 2020, p. 182). These woody plants shade out Arizona eryngo and cause water level declines in cienegas through increased evapotranspiration, particularly in the summer (Johnson et al. 2016, p. 83).

Invasive, nonnative plants ( e.g., giant reed, Johnsongrass) are of concern because they often quickly colonize an area and aggressively compete with native species such as the Arizona eryngo for sunlight, water, and nutrients. Giant reed is a fast-growing, tall (up to 6 meters (m) (20 feet (ft)), perennial, hydrophytic (water-loving) grass that grows in riparian areas, streams, irrigation ditches, and wetlands. It is an aggressive invader that rapidly spreads into a thick monoculture that outcompetes and shades out other vegetation (Frandsen 1997, p. 245; DiPietro 2002, p. 9). Giant reed is fire-adapted and resprouts from extensive underground rhizomes even after very hot fires that kill native vegetation (DiPietro 2002, p. 9). Additionally, it uses large amounts of water, thereby reducing the amount of water available for native vegetation (DiPietro 2002, p. 10).

Johnsongrass is a fast-growing, tall, invasive perennial grass that thrives in a variety of environments and climates (Peerzada et al. 2017, p. 2). It mostly grows at moist sites ( e.g., irrigation canals, cultivated fields, field edges, pastures), and in Arizona, it is known as a riparian weed in the Sonoran and Chihuahuan Deserts. Johnsongrass impacts the growth of native plants; it is difficult to control and has become resistant to herbicides, particularly glyphosate (Peerzada et al. 2017, p. 2).

At three of four cienegas supporting the Arizona eryngo (Lewis Springs, La Cebadilla, and Ojo Vareleño), an increase in woody vegetation and nonnative plant species has been documented. This vegetation is outcompeting the Arizona eryngo for sunlight and space, likely causing a decrease in population size and extent at these sites. At Lewis Springs, Johnsongrass is aggressively invading and appears to be suppressing Arizona eryngo, particularly in the drier areas of the wetlands (Li 2019, entire; Simms 2019, entire). Johnsongrass has been present at this site since at least 2009. In the drier areas of the wetlands, baccharis is encroaching and appears to be suppressing Arizona eryngo; no Arizona eryngo plants have been found growing in the understory of baccharis (Li 2019, entire; Simms 2019, entire). At La Cebadilla, aerial imagery indicates that mesquite ( Prosopis spp.) is invading the cienega, and cottonwood also appears to be shading out Arizona eryngo (Fonseca 2019, entire). Velvet ash ( Fraxinus velutina ) trees are invading the cienega and shading out Arizona eryngo as well (Li 2020b, p. 3). At Ojo Vareleño, many nonnative plant species also occur, with a particularly aggressive invasion of giant reed (Sánchez Escalante et al. 2019, pp. 9-10).

In summary, nonnative Johnsongrass and giant reed are likely to continue to aggressively invade Lewis Springs and Ojo Vareleño. These nonnative plant species may contribute to the near-term extirpation of Arizona eryngo populations at these sites. Woody vegetation encroachment at La Cebadilla and Lewis Springs is also likely to continue, further degrading habitat conditions.

Livestock, such as cattle and horses, and native herbivores (both invertebrate and vertebrate) may cause harm or mortality to Arizona eryngo plants through trampling, herbivory, or uprooting. Because mature plants have large, fibrous leaves, cattle are more likely to consume young plants at an early growth stage. As discussed above, cattle are present at Rancho Agua Caliente, and trespass cattle and horses could enter Lewis Springs and trample plants, consume flowers, and reduce the seedbank of the Arizona eryngo. To our knowledge, no livestock are present at La Cebadilla or Ojo Vareleño. At the Agua Caliente reintroduction site in Arizona, javelina uprooted and killed young plants, and gophers ate young reintroduced plants (Fonseca 2018, p. 1; Li 2019, p. 6).

Many invertebrates have been observed on Arizona eryngo plants at La Cebadilla and Lewis Springs (Stromberg et al. 2020, p. 175; Li 2019, p. 2; Simms 2019, p. 1). Some of these invertebrates may be floral herbivores, but they do not appear to be of concern for the species' viability.

In summary, while herbivory and trampling may harm individual Arizona eryngo plants and the seedbank, they are not significant threats to the species.

Our analysis of the past, current, and future influences on the needs of the Arizona eryngo for long-term viability revealed that there are two that pose the greatest risk to future viability: water loss (groundwater withdrawal and water diversion) and invasion of nonnative and woody plant species, both of which are exacerbated by drought and warming caused by climate change. Water loss reduces the availability of moist soils, and nonnative and woody plant species outcompete Arizona eryngo for sunlight, space, and water, thereby reducing the quantity and quality of habitat.

Here we discuss the current condition of the Arizona eryngo, taking into account the risks to those populations that are currently occurring. We consider climate change to be currently occurring and exacerbating effects of drought, warming, groundwater withdrawal, diversion, and invasion of nonnative and woody plant species. In the SSA report, for each population, we developed and assigned condition categories for three population factors and two habitat factors that are important for viability of the Arizona eryngo. The condition scores for each factor were then used to determine an overall condition of each population: high, moderate, low, or functionally extirpated. These overall conditions translate to our presumed probability of persistence of each population, with populations in high condition having the highest presumed probability of persistence over 30 years (greater than 90 percent), populations in moderate condition having a presumed probability of persistence that falls between 60 and 90 percent, and populations in low condition having the lowest probability of persistence (between 10 and 60 percent). Functionally extirpated populations are not expected to persist over 30 years or are already extirpated.

Overall, there are four remaining populations of Arizona eryngo, all restricted to small cienegas in the Sonoran and Chihuahuan Deserts in Arizona and Mexico. Historically, Arizona eryngo populations were likely connected to one another, but today they are small and isolated due to cienega loss throughout the region. Repopulation of extirpated locations is extremely unlikely without human assistance. Two populations are currently in moderate condition and two are in low condition, and two have been extirpated. The four extant populations are described below.

La Cebadilla contains the largest population of the Arizona eryngo, with a population estimate of over 30,000 individuals. However, this population occurs in a very small area; the occupied area is approximately 0.04 hectares (1.1 acres), and the population depends on stable groundwater to maintain springflow into the cienega. The cienega has been altered by increased presence of trees, bank erosion, pasture grading, utility construction, and subdivision development (Fonseca 2019, p. 3). Historical images indicate that the cienega was more extensive in 1941, with fewer trees on some margins of the cienega and no forest on the southern margin of the cienega (Fonseca 2019, p. 1). Due to the encroachment of woody vegetation, this site has varied sunlight conditions, with more shade currently than in the past.

The cienega has been shrinking, indicating the aquifer is being depleted (Fonseca 2019, pers. comm.). The aquifer supporting the La Cebadilla springs supports numerous private wells (including the Tanque Verde Guest Ranch) (Eastoe and Fonseca 2019, pers. comm.). In addition to groundwater use, aquifer depletion could also result from increased evapotranspiration of tree cover and stream channel adjustments.

La Cebadilla Estates and the Pima County Regional Flood Control District (PCRFCD) are committed to the conservation of the unique ecological diversity of La Cebadilla cienega and are working to reduce woody vegetation. The homeowners' association of La Cebadilla Estates manages their portion of the cienega as common property for the common use and enjoyment of its members. Under an agreement with Partners for Fish and Wildlife, in 2021, La Cebadilla Estates supported the experimental removal of young velvet ash trees encroaching on the cienega, which was successful at improving conditions for Arizona eryngo (Li 2021b, p. 1).

PCRFCD manages their portion of the cienega as natural open space, which has a restrictive covenant that limits development and protects natural resources on the property. PCRFCD has implemented actions to conserve Arizona eryngo at La Cebadilla, such as removing parts of a fallen cottonwood tree that were covering Arizona eryngo (Li 2020b, p. 2), and is planning additional actions.

Because of the small extent of the population and the encroachment of woody vegetation, the Arizona eryngo population is currently in moderate condition and is at risk of extirpation from decreased springflow due to continuing loss of groundwater from the aquifer.

The population of Arizona eryngo in Lewis Springs, estimated at 1,813 plants, occurs along a very narrow cienega parallel to a railroad, occupying about 0.04 hectares (0.1 acres) (Li 2020a, p. 1). In 2005, there were more than a dozen springs and seeps in the wetland complex; as of 2019, some of the wetland patches appear to be drying, with soil drier at several sites than it had been in 2005 (Simms 2019, entire). The water source of Lewis Springs Cienega is supplied by mountain front recharge (westward flow from the Mule Mountains and eastward flow from the Huachuca Mountains) (Baillie et al. 2007, p. 7; Stromberg et al. 2020, p. 177). Groundwater pumping up to several kilometers away may be affecting the regional groundwater flow to the wetlands along the San Pedro River, including Lewis Springs (Stromberg et al. 2020, p. 181).

Nonnative Johnsongrass is aggressively invading Lewis Springs and appears to be suppressing Arizona eryngo, particularly in the drier areas of the cienega (Simms 2019, p. 22; Li 2020a, p. 2). Similarly, baccharis has been invading and appears to be suppressing Arizona eryngo, as no Arizona eryngo plants were found growing in the understory of baccharis (Simms 2019, p. 6; Li 2019, p. 1). In the wetter areas of the cienega where the soil is saturated and surface water is generally present, common spikerush ( Eleocharis palustris ) and bulrush appear to suppress Arizona eryngo (Li 2020a, p. 2).

BLM has conducted some removal of Johnsongrass at Lewis Springs and is currently planning for additional removal of the species. BLM is also planning experimental removal of baccharis shrubs at Lewis Springs, and they are considering establishment of additional populations and/or subpopulations of Arizona eryngo at suitable sites within Lewis Springs and the SPRNCA. BLM is also collecting seeds for propagation and banking.

Because of the moderate population size, extremely small population extent, decreasing springflow and increased drying of soils, and plant species invasion, Lewis Springs is currently in moderate condition. The population is currently at risk of extirpation from drying due to drought, groundwater pumping, and invasion of nonnative Johnsongrass.

The Arizona eryngo population at Rancho Agua Caliente occupies about 1 ha (2.5 acres). The population is estimated to be several hundred plants, including juveniles (Sánchez Escalante et al. 2019, p. 16; Sánchez Escalante 2019, pers. comm.). This cienega is the only known population of Arizona eryngo in Sonora.

Rancho Agua Caliente is an active cattle ranch, and Arizona eryngo habitat is somewhat disturbed by cattle (Sánchez Escalante et al. 2019, p. 16), which may help create open sun conditions for the species. We have no information on the groundwater source for the spring.

Because of the small numbers of individuals at Rancho Agua Caliente, the population is currently in low condition and is at risk of extirpation due to drought and drying of habitat.

The Arizona eryngo population at Ojo Vareleño contains about 56 adult plants (Sánchez Escalante et al. 2019, p. 17) in a 0.075-hectare (0.18-acre) area (Sánchez Escalante 2019, pers. comm.). No juveniles have been documented at this site.

Giant reed has been aggressively invading Ojo Vareleño (Sánchez Escalante et al. 2019, p. 10), and it appears that the site has variable soil moisture and sunlight conditions. The giant reed invasion is creating conditions with high amounts of shade and little to no space for other plants. Springflow is collected in concrete spa ponds (Sánchez Escalante et al. 2019, p. 28), which likely affects the natural hydrology of the site. Currently, we do not have information on the source of water supplying the springs or the amount of groundwater use at this site.

Because of the very low population numbers and the lack of juveniles, the population of Arizona eryngo at Ojo Vareleño is currently in low condition. A small change in the water levels at the cienega or further invasion by giant reed could cause the extirpation of the population in the near future.

Conservation efforts are occurring at multiple sites supporting Arizona eryngo. As discussed above, for example, at Lewis Springs, BLM has been assessing and planning the removal of nonnative and select woody vegetation and has conducted some removal of Johnsongrass. BLM has collected seeds for propagation, banking, and seeding trials, and has conducted one seeding trial at Lewis Springs. Additionally, BLM has introduced Arizona eryngo to the Las Cienegas National Conservation Area. Pima County has been working to reintroduce Arizona eryngo to Agua Caliente and introduce it to Canoa Ranch. La Cebadilla Estates has been supportive of various survey, monitoring, and conservation actions on their property. These conservation efforts have significantly contributed to our knowledge of Arizona eryngo and conservation of the species; however, at this time, these efforts are inadequate to prevent the need for listing because major threats, such as water loss and drought and climate change, are still present.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines an “endangered species” as a species in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of endangered species or threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we found that the Arizona eryngo has declined in abundance and distribution. At present, most of the known populations exist in very low abundances, and all populations occur in extremely small areas. Furthermore, existing available habitats are reduced in quality and quantity, relative to historical conditions. Our analysis revealed three primary threats that caused these declines and pose a meaningful risk to the viability of the species. These threats are primarily related to habitat changes (Factor A from the Act): Physical alteration of cienegas, water loss, and changes in co-occurring vegetation, all of which are exacerbated by the effects of climate change.

Because of historical and current modifications of cienegas and groundwater withdrawals from the aquifers supporting occupied cienegas, Arizona eryngo populations are now fragmented and isolated from one another and unable to recolonize following extirpations. These populations are largely in a state of chronic degradation due to water loss and changes in co-occurring vegetation, affecting soil moisture and open canopy conditions and limiting the species' resiliency. Given the high risk of a catastrophic drought or groundwater depletion, both of which are exacerbated by climate change, all Arizona eryngo populations are at a high or moderate risk of extirpation. Historically, the species, with a larger range of likely interconnected populations, would have been more resilient to stochastic events because even if some populations were extirpated by such events, they could be recolonized over time by dispersal from nearby surviving populations. This connectivity, which would have made for a highly resilient species overall, has been lost, and with two populations in low condition and two in moderate condition, the remnant populations are all at risk of loss.

Our analysis of the Arizona eryngo's current conditions, using the best available information, shows that the Arizona eryngo is in danger of extinction throughout all of its range due to the severity and immediacy of threats currently impacting the species. We find that a threatened species status is not appropriate because of the Arizona eryngo's currently contracted range, because the species' populations are fragmented from one another, and because the threats to the species are currently ongoing and occurring across its entire range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the Arizona eryngo is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portions of its range. Because the Arizona eryngo warrants listing as endangered throughout all of its range, our determination is consistent with the decision in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), in which the court vacated the aspect of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) that provided the Services do not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range.

Our review of the best available scientific and commercial information indicates that the Arizona eryngo meets the Act's definition of an endangered species. Therefore, we are listing the Arizona eryngo as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning consists of preparing draft and final recovery plans, beginning with the development of a recovery outline and making it available to the public within 30 days of a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website ( https://www.fws.gov/endangered ), or from our Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration ( e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

Following publication of this final rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Arizona and New Mexico will be eligible for Federal funds to implement management actions that promote the protection or recovery of the Arizona eryngo. Information on our grant programs that are available to aid species recovery can be found at: https://www.fws.gov/grants.

Please let us know if you are interested in participating in recovery efforts for the Arizona eryngo. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the BLM or groundwater use by Fort Huachuca or other Federal agencies (or permitted or funded by a Federal agency) within the hydrological influence of Lewis Springs or La Cebadilla.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered plants. The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.61, make it illegal for any person subject to the jurisdiction of the United States to: import or export; remove and reduce to possession from areas under Federal jurisdiction; maliciously damage or destroy on any such area; remove, cut, dig up, or damage or destroy on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law; deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce an endangered plant. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered plants under certain circumstances. Regulations governing permits are codified at 50 CFR 17.62. With regard to endangered plants, a permit may be issued for scientific purposes or for enhancing the propagation or survival of the species. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that will or will not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a final listing on proposed and ongoing activities within the range of a listed species. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:

(1) Normal agricultural and silvicultural practices, including herbicide and pesticide use, that are carried out in accordance with any existing regulations, permit and label requirements, and best management practices;

(2) Normal residential landscaping activities on non-Federal lands; and

(3) Recreational use with minimal ground disturbance.

Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act if they are not authorized in accordance with applicable law; this list is not comprehensive:

(1) Unauthorized handling, removing, trampling, or collecting of the Arizona eryngo on Federal land; and

(2) Removing, cutting, digging up, or damaging or destroying the Arizona eryngo in knowing violation of any law or regulation of the State of Arizona or in the course of any violation of a State criminal trespass law.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary ( i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis ( e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat).

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. The implementing regulations at 50 CFR 424.12(b)(2) further delineate unoccupied critical habitat by setting out three specific parameters: (1) When designating critical habitat, the Secretary will first evaluate areas occupied by the species; (2) the Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species; and (3) for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.

As the regulatory definition of “habitat” reflects (50 CFR 424.02), habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or absence of particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.

In considering whether features are essential to the conservation of the species, we may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.

We derive the specific physical or biological features essential to the conservation of the Arizona eryngo from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the SSA report (Service 2020, entire; available on https://www.regulations.gov under Docket No. FWS-R2-ES-2020-0130). We have determined that the following physical or biological features are essential to the conservation of Arizona eryngo:

(1) Cienegas within the Chihuahuan and Sonoran Deserts:

(a) That contain permanently moist to saturated, organic, alkaline soils with some standing water in winter and that are moist at or just below the surface in summer; and

(b) That have functional hydrological processes and are sustained by springflow via discharge of groundwater.

(2) Areas of open canopy throughout the cienega.

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of this species may require special management considerations or protection to reduce the following threats: physical alteration of cienegas, water loss, and changes in co-occurring vegetation. Management activities that could ameliorate these threats include, but are not limited to: Use best management practices (BMPs) to minimize erosion and sedimentation; remove and control invasive, nonnative species ( e.g., Johnsongrass) that encroach on critical habitat; selectively manage woody vegetation that encroaches on critical habitat; exclude livestock, or in some instances where such management would further the conservation of cienega habitat and the species, use highly managed grazing; avoid or minimize groundwater withdrawal to maintain adequate springflow to maintain cienegas; and avoid springflow diversion and springhead modification to maintain springflow to cienegas.

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. Arizona eryngo is well-established at two historical locations, Lewis Springs and La Cebadilla, has been reintroduced at another historical location where it was extirpated (Agua Caliente), and has been introduced at several cienegas lacking historical records of occupancy. Introductions have recently been initiated at several additional locations, with the spreading of seeds and planting of seedlings. However, we do not consider these introductions to result in occupancy until fully mature, reproductive plants and production of seedlings have become established. Therefore, areas occupied at the time of listing include three locations: Lewis Springs, La Cebadilla, and Agua Caliente. Other sites, such as Las Cienegas National Conservation Area and St. David Cienega, where plantings or seed scattering recently occurred but no adult plants have become established, are considered to be unoccupied. Because we lack information on the environmental conditions of these (or any other) unoccupied sites to help us determine whether they can support the Arizona eryngo, we cannot determine that they will contribute to the long-term conservation of the species. Therefore, we are not designating any areas outside the geographical area occupied by the species as critical habitat.

In summary, for areas within the geographic area occupied by the species at the time of listing, we delineated critical habitat unit boundaries using the following criteria:

Evaluate habitat suitability of cienegas within the geographic area occupied at the time of listing, and retain those cienegas that contain some or all of the physical or biological features that are essential to support life-history processes of the species.

When determining critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the Arizona eryngo. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action will affect the physical or biological features in the adjacent critical habitat.

We are designating as critical habitat areas that we have determined are occupied at the time of listing ( i.e., currently occupied) and that contain one or more of the physical or biological features that are essential to support life-history processes of the species.

Units are designated based on one or more of the physical or biological features being present to support the Arizona eryngo's life-history processes. Some units contain all of the identified physical or biological features and support multiple life-history processes. Some units contain only some of the physical or biological features necessary to support the Arizona eryngo's particular use of that habitat.

The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document under Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-2020-0130, and on our internet site https://www.fws.gov/southwest/es/arizona/.

We are designating approximately 12.7 acres (5.1 hectares) in two units as critical habitat for the Arizona eryngo. The two units we designate as critical habitat are: (1) Lewis Springs, and (2) La Cebadilla. The critical habitat areas we list in the table below constitute our current best assessment of areas that meet the definition of critical habitat for the Arizona eryngo. Table 1 shows the land ownership, size, and occupancy of the areas that meet the definition of critical habitat for the Arizona eryngo.

We present brief descriptions of the two units we are designating, and reasons why they meet the definition of critical habitat for Arizona eryngo, below. For a description of proposed Unit 3 (Agua Caliente), which we are excluding from this designation, please see Exclusions Based on Other Relevant Impacts, later in this document.

Unit 1 consists of 9.6 acres (3.9 hectares) encompassing the wetlands at Lewis Springs just to the east of the San Pedro River in Cochise County, within the San Pedro River Basin. The unit is located within the SPRNCA, which is owned and managed by the BLM to conserve, protect, and enhance a rare remnant of desert riparian ecosystem. The unit is occupied by the species and contains all the physical or biological features essential to the conservation of the Arizona eryngo. The Lewis Springs Unit is being affected by drought, nonnative species invasion, woody vegetation encroachment, and ongoing human demand for water resulting in declining groundwater levels. Therefore, special management considerations may be required to reduce invasion of nonnative species and encroachment of woody vegetation and to improve groundwater levels to support continued springflow.

Unit 2 consists of 3.1 acres (1.3 hectares) of cienega habitat at La Cebadilla Cienega, adjacent to the Tanque Verde Wash east of Tucson in Pima County, within the Santa Cruz River Basin. The majority of the unit is located on lands owned by La Cebadilla Estates, with a smaller portion of the unit located on lands owned and managed by PCRFCD. The homeowners' association of La Cebadilla Estates manages their portion of the cienega as common property for the common use and enjoyment of its members. PCRFCD manages their portion of the cienega as natural open space, which has a restrictive covenant that limits development and protects natural resources on the property. The La Cebadilla Unit is occupied by the species and contains all the physical or biological features essential to the conservation of the Arizona eryngo. The unit is located in a rural neighborhood and is being affected by drought, woody vegetation encroachment, and ongoing human demand for water resulting in declining groundwater levels. Therefore, special management may be required to reduce encroachment of woody vegetation and to improve groundwater levels to support continued springflow.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species.

We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.

If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq. ) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat—and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation.

Compliance with the requirements of section 7(a)(2) is documented through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law) and, if subsequent to the previous consultation: (1) If the amount or extent of taking specified in the incidental take statement is exceeded; (2) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or (4) if a new species is listed or critical habitat designated that may be affected by the identified action.

In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but the regulations also specify some exceptions to the requirement to reinitiate consultation on specific land management plans after subsequently listing a new species or designating new critical habitat. See the regulations for a description of those exceptions.

The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate section 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.

Activities that the Services may, during a consultation under section 7(a)(2) of the Act, consider likely to destroy or adversely modify critical habitat include, but are not limited to:

(1) Actions that would alter the hydrology of the cienega. Such activities could include, but are not limited to, springflow diversion, springhead modification, groundwater withdrawal, and physical alteration of the cienega. These activities could change the hydrological processes of the cienega, reducing or eliminating habitat for the Arizona eryngo.

(2) Actions that promote the growth of nonnative plant species and canopy cover. Such actions include, but are not limited to, planting of nonnative plant species and woody vegetation, and seed spread through livestock and tire treads. These activities could reduce or eliminate habitat for the Arizona eryngo.

(3) Actions that result in further fragmentation of Arizona eryngo habitat. Such actions include, but are not limited to, development of fuel breaks, roads, and trails. These activities could reduce or eliminate habitat for the Arizona eryngo.

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DOD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. There are no Department of Defense (DoD) lands with a completed INRMP within the final critical habitat designation.

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.

Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. In order to consider economic impacts, we prepared an incremental effects memorandum (IEM) and screening analysis which, together with our narrative and interpretation of effects, we consider our draft economic analysis (DEA) of the critical habitat designation and related factors (IEc 2020, entire). The analysis, dated November 16, 2020 (IEc 2020, entire), was made available for public review from March 4, 2021, through May 3, 2021 (see 86 FR 12563; March 4, 2021). The DEA addressed probable economic impacts of critical habitat designation for Arizona eryngo. Following the close of the March 4, 2021, proposed rule's comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. During the public comment period on the proposed rule, we received a comment on our economic analysis, which we address in our response to (6) Comment under Summary of Comments and Recommendations, above. Additional information relevant to the probable incremental economic impacts of critical habitat designation for the Arizona eryngo is summarized below and available in the screening analysis for the Arizona eryngo (IEc 2020, entire), available at https:// www.regulations.gov. We are adopting the DEA as the final economic analysis.

In occupied areas, any actions that may affect the species or its habitat will also likely affect critical habitat, and it is unlikely that any additional conservation efforts will be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the Arizona eryngo. Therefore, only administrative costs are expected as a result of the critical habitat designation. While this additional analysis will require time and resources by both the Federal action agency and the Service, it is believed that, in most circumstances, these costs will predominantly be administrative in nature and will not be significant.

The probable incremental economic impacts of this critical habitat designation for the Arizona eryngo are expected to be limited to additional administrative effort as well as minor costs of conservation efforts resulting from a small number of future section 7 consultations. Because both of the critical habitat units are occupied by the species, incremental economic impacts of critical habitat designation, other than administrative costs, are unlikely. At approximately $5,300 or less per consultation, this designation is expected to result in 12 to 17 consultations in 10 years for a maximum total estimated cost of $36,000 over this time period (IEc 2020, p. 12). Thus, the annual administrative burden is unlikely to reach or exceed $100 million in any single year; therefore, the economic impacts are not significant. The Service considered the economic impacts of the critical habitat designation. The Secretary is not exercising her discretion to exclude any areas from this designation of critical habitat for the Arizona eryngo based on economic impacts.

In preparing this rule, we determined that none of the lands within the designated critical habitat for the Arizona eryngo are owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security or homeland security. We did not receive any additional information during the public comment period for the proposed critical habitat designation regarding impacts of the designation on national security or homeland security that would support excluding any specific areas from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19.

Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements, or candidate conservation agreements with assurances (CCAAs), or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of Tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation.

When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.

When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation, or in the continuation, strengthening, or encouragement of partnerships. Additionally, continued implementation of an ongoing management plan that provides equal to or more conservation than a critical habitat designation would reduce the benefits of including that specific area in the critical habitat designation.

After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.

Based on the information provided in the public comments, including those from the landowner (Pima County) and the best scientific data available, we evaluated whether lands in the proposed critical habitat Unit 3 (Agua Caliente) are appropriate for exclusion from the final designation under section 4(b)(2) of the Act. If the analysis indicates that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then the Secretary may exercise her discretion to exclude the lands from the final designation. In the paragraphs below, we provide a detailed balancing analysis of the areas being excluded under section 4(b)(2) of the Act.

Proposed Unit 3 consists of three subunits totaling 0.3 acres (0.1 hectares), all within the Agua Caliente Regional Park. The park is located east of Tucson in Pima County within the Santa Cruz River Basin (Stromberg et al. 2020, p. 177) and is owned and managed by Pima County Natural Resources, Parks and Recreation. The Arizona eryngo historically occurred at this site, but the population was extirpated, likely due to multiple manipulations of the site that eliminated cienega habitat, including, but not limited to, water diversion and vegetation clearing for agricultural activities, pond impoundment, groundwater pumping, and spring modification (Stromberg et al. 2020, p. 177; SWCA 2002, p. 11). Reintroduction efforts for the species began in 2017, with 20 individuals planted that year and another 15 in 2018. Most of these plants have died, with at most 1 to 3 individuals maturing into adult plants. Seedling production has been observed on occasions, but none have survived to reach reproductive maturity. The limited success of this reintroduction and the comments provided by Pima County raise uncertainty as to whether this site could be restored to contain sufficient physical or biological features essential to the conservation of the species. Soils at this site are saturated, and there are areas of open canopy (two of three physical or biological features we identified as essential to Arizona eryngo), but this is a heavily manipulated waterway that does not function like an unaltered cienega. It lacks functional hydrological processes, which ultimately may limit the ability of the soils to maintain appropriate moisture levels for the species. Even though this unit is currently occupied, the limited recruitment and extensive die-off of reintroduced individuals is evidence that the habitat may not be fully restorable at this site.

We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service.

We evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list of factors that we will consider for non-permitted plans or agreements is shown below. These factors are not required elements of plans or agreements, and all items may not apply to every plan or agreement.

(i) The degree to which the plan or agreement provides for the conservation of the species or the essential physical or biological features (if present) for the species.

(ii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented.

(iii) The demonstrated implementation and success of the chosen conservation measures.

(iv) The degree to which the record of the plan supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnership.

(v) The extent of public participation in the development of the conservation plan.

(vi) The degree to which there has been agency review and required determinations ( e.g., State regulatory requirements), as necessary and appropriate.

(vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) compliance was required.

(viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information.

Pima County is a long-term conservation partner and leader, and Pima County and the Service have a memorandum of understanding (MOU) to work collaboratively and cooperatively to implement meaningful conservation and mitigation as part of the Sonoran Desert Conservation Plan (Pima County 2020b). A portion of Agua Caliente Regional Park is identified in the Sonoran Desert Conservation Plan as an Important Riparian Area and as a Biological Core Management Area. The western-most parcel that includes Agua Caliente Wash is encumbered with a restrictive covenant as mitigation land for the County's and Flood Control District's Multi-Species Conservation Plan (MSCP) section 10 permit. The MSCP is the part of the Sonoran Desert Conservation Plan that addresses endangered species compliance. Because the Arizona eryngo was not listed when the MSCP was developed, it was not explicitly included as part of the MSCP and so is not covered by the section 10 permit. Therefore, we considered the conservation activities Pima County has identified in the Sonoran Desert Conservation Plan in assessing critical habitat designation for Agua Caliente.

The conservation goals of the MOU include ensuring the long-term survival of the full spectrum of plants and animals that are indigenous to Pima County through maintaining or improving the habitat conditions and ecosystem functions necessary for their survival. Objectives under this goal include:

(1) Promote recovery of federally listed and candidate species;

(2) Where feasible and appropriate, reintroduce and recover species that have been extirpated from this region;

(3) Maintain or improve the status of unlisted species whose existence in Pima County is vulnerable;

(4) Identify biological threats to the region's biodiversity posed by introduced and nonnative species of plants and animals, and develop strategies to reduce these threats and avoid additional invasive species in the future;

(5) Identify causes that disrupt ecosystem functions within target plant communities selected for their biological significance, and develop strategies to reverse or mitigate them; and

(6) Promote long-term viability and mitigate for impacts to species, environments, and biotic communities that have special significance to people in this region because of their aesthetic or cultural values, regional uniqueness, or economic significance.

These goals align with several of the factors we may consider for basing an exclusion on a conservation plan.

As a designated County park, Agua Caliente is owned and managed by Pima County for recreational opportunities, habitat, scenery, and resource protection. Additionally, Agua Caliente Ranch Historic Landscape is listed in the National Register of Historic Places, the Arizona Register of Historic Places, and Pima County's Register of Historic Places, which affords both recognition and certain protections. The landscape of the County park includes certain trees, buildings, and ponds that are contributing elements as a National Register District, and Pima County designated the entire historic park as a Sonoran Desert Conservation Plan “Priority Cultural Resource” to be managed for preservation and conservation. Consequently, the County has invested grant funds and bond funds in ensuring these resources are protected and appropriately rehabilitated.

The principal benefit of including an area in critical habitat designation is the requirement of Federal agencies to ensure that actions that they fund, authorize, or carry out are not likely to result in the destruction or adverse modification of any designated critical habitat, which is the regulatory standard of section 7(a)(2) of the Act under which consultation is completed. Federal agencies must consult with the Service on actions that may affect a listed species, and refrain from actions that are likely to jeopardize the continued existence of such species. The analysis of effects to critical habitat is a separate and different analysis from that of the effects to the species. Therefore, the difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. For some cases, the outcome of these analyses will be similar, because effects to habitat will often result in effects to the species. However, the regulatory standard is different, as the jeopardy analysis investigates the action's impact to survival and recovery of the species, while the adverse modification analysis investigates the action's effects to the designated critical habitat's contribution to conservation. Thus, critical habitat designation may provide greater benefits to the recovery of a species than listing would alone. Therefore, critical habitat designation may provide a regulatory benefit for the Arizona eryngo on lands within the Agua Caliente Regional Park.

Another possible benefit of including lands in critical habitat is public education regarding the potential conservation value of an area that may help focus conservation efforts on areas of high conservation value for certain species. We consider any information about the Arizona eryngo and its habitat that reaches a wide audience, including parties engaged in conservation activities, to be valuable. Designation of critical habitat would provide educational benefits by informing Federal agencies and the public about the presence of the species in this unit.

However, we also acknowledge the limited benefit of including this unit to the conservation of the species. The limited success of the reintroduction of Agua Caliente indicates that the conservation benefits of including this site as critical habitat are not high. The current condition of the population indicates the habitat is not sufficient to contribute to the long-term conservation of the species.

The benefits of excluding 0.3 acre (0.1 hectare) of land within the Agua Caliente Regional Park, owned and managed by Pima County Natural Resources, Parks and Recreation, from the designation of critical habitat for the Arizona eryngo are substantial and include: (1) Continuance and strengthening of our effective partnership with Pima County to promote voluntary, proactive conservation of the Arizona eryngo and its habitat; (2) allowance for continued meaningful collaboration and cooperation in working toward species recovery, including conservation benefits that might not otherwise occur, such as reintroducing the species at Agua Caliente or other sites; and (3) encouragement of developing and implementing conservation and management plans in the future for the Arizona eryngo or other federally listed and sensitive species.

Pima County has been a long-term conservation partner and has led multiple efforts to conserve the Arizona eryngo, including working to reestablish the species at Agua Caliente and two other sites. The Arizona eryngo reintroduction effort at Agua Caliente is still in an experimental phase, and a viable population has not yet been established. Supporting Pima County to continue leading conservation efforts for the species without the regulatory burdens of critical habitat is important. Excluding Agua Caliente from the critical habitat designation will allow the County the ability to focus on their ongoing, voluntary conservation efforts.

Also, Agua Caliente Regional Park is a highly manipulated system that is subjected to substantial management from Pima County. Due to alterations of the habitat and hydrology, Agua Caliente no longer functions like a natural, unaltered cienega. Managers continue to experiment with the system to provide conditions appropriate for species such as the Arizona eryngo. Establishing critical habitat on a specific area of the park may limit Pima County's ability to adjust their management in a manner that may ultimately benefit the species in the long term, allowing them to determine through trial and error which locations in the park are able to be managed for the species, providing the necessary features and establishing a new population. To date, introduction of the Arizona eryngo to the park has not been successful in establishing a population, and most individuals have experienced mortality due to inadequate conditions. Excluding this park from critical habitat provides Pima County the flexibility to conduct management that will promote recovery on their lands for the long-term benefit of the species.

Additionally, many landowners perceive critical habitat as an unfair and unnecessary regulatory burden. According to some researchers, the designation of critical habitat on private lands significantly reduces the likelihood that landowners will support and carry out conservation actions (Main et al. 1999, p. 1,263; Bean 2002, p. 2). The magnitude of this negative outcome is greatly amplified in situations where active management measures (such as reintroduction, fire management, and control of invasive species) are necessary for species conservation (Bean 2002, pp. 3-4). We believe the exclusion of this specific area of non-federally owned lands from the critical habitat designation for Arizona eryngo can contribute to the species' recovery and provide a superior level of conservation than critical habitat can provide. The Service believes that, where consistent with the discretion provided by the Act, it is necessary to implement policies that provide positive incentives to non-Federal landowners to voluntarily conserve natural resources and that remove or reduce disincentives to conservation (Wilcove et al. 1996, pp. 1-15; Bean 2002, pp. 1-7). Partnerships with non-Federal landowners are vital to the conservation of listed species, especially on non-Federal lands; therefore, the Service is committed to supporting and encouraging such partnerships through the recognition of positive conservation contributions. In the case considered here, excluding this area from critical habitat designation will help foster the partnership that Pima County has developed with the Service; will encourage the continued implementation of voluntary conservation actions for the benefit ofthe Arizona eryngo and its habitat on these lands; and may also serve as a model and aid in fostering future cooperative relationships with other parties here, and in other locations, for the benefit of other endangered or threatened species.

We evaluated the exclusion of 0.3 acre (0.1 hectare) of County land within the boundaries of the Agua Caliente Regional Park, under a long-term conservation partnership and MOU, from our designation of critical habitat, and we determined the benefits of excluding these lands outweigh the benefits of including them as critical habitat for the Arizona eryngo.

The Service concludes the additional regulatory and educational benefits of including these lands as critical habitat are relatively small, because of the unlikelihood of a Federal nexus on these County lands. Examining the eight factors that may be considered under a discretionary section 4(b)(2) exclusion analysis for a non-permitted conservation plan (see Private or Other Non-Federal Conservation Plans or Agreements and Partnerships, in General ), we found the conservation plan developed by Pima County satisfies several that would promote the conservation of the species. Specifically, the plan has objectives to promote recovery of federally listed species and promote long-term viability of native species, which would satisfy factor (i). The benefits of critical habitat designation are further reduced because the existence of a long-term conservation partnership and MOU between Pima County and the Service, as well as numerous land protections, discussed above, at Agua Caliente Regional Park. Given Pima County's history of conservation, this satisfies factor (iii) of the section 4(b)(2) exclusion analysis. In addition, the plan includes multiple objectives that would satisfy factor (viii) by promoting monitoring and adaptive management to ensure conservation measures are effective. We anticipate that there will be little additional Federal regulatory benefit to the taxon on County land because there is a low likelihood that those areas will be negatively affected to any significant degree by Federal activities requiring section 7 consultation, and ongoing management activities indicate there would be no additional requirements pursuant to a consultation that addresses critical habitat.

Furthermore, the potential educational and informational benefits of critical habitat designation on lands containing the physical or biological features essential to the conservation of the Arizona eryngo would be minimal, because Pima County has been a leader in conservation of the Arizona eryngo and demonstrated their knowledge of the species and its habitat needs throughout their partnership with the Service. Additionally, the current active conservation efforts on County lands contribute to our knowledge of the species through reintroduction efforts, monitoring, and scientific research.

In contrast, the benefits derived from excluding Agua Caliente and enhancing our partnership with Pima County are significant. Because voluntary conservation efforts for the benefit of listed species on non-Federal lands are so valuable, the Service considers the maintenance and encouragement of conservation partnerships to be a significant benefit of exclusion. Excluding these areas from critical habitat will help foster the partnership Pima County has developed with the Service and will encourage the continued implementation of voluntary conservation actions for the benefit of the Arizona eryngo and its habitat on these lands.

We find that excluding areas from critical habitat that are receiving both long-term conservation and management for the purpose of protecting the habitat that supports the Arizona eryngo will preserve our partnership with Pima County and encourage future collaboration towards conservation and recovery of listed species. The partnership benefits are significant and outweigh the small potential regulatory, educational, and ancillary benefits of including the land in the critical habitat designation for the Arizona eryngo. Therefore, the conservation partnership between Pima County and the Service provides greater protection of habitat for the Arizona eryngo than could be gained through the project-by-project analysis of a critical habitat designation.

We determined that the exclusion of 0.3 acre (0.1 hectare) of land within the boundaries of the Agua Caliente Regional Park owned and managed by Pima County Natural Resources, Parks and Recreation will not result in extinction of the taxon. Protections afforded the taxon and its habitat by the long-term Pima County and Service conservation partnership, MOU, and various land protections provide assurances that the taxon will not go extinct as a result of excluding these lands from the critical habitat designation.

An important consideration as we evaluate these exclusions and their potential effect on the species in question is that critical habitat does not carry with it a regulatory requirement to restore or actively manage habitat for the benefit of listed species; the regulatory effect of critical habitat is only the avoidance of destruction or adverse modification of critical habitat should an action with a Federal nexus occur. It is, therefore, advantageous for the conservation of the species to support the proactive efforts of non-Federal landowners who are contributing to the enhancement of essential habitat features for listed species through exclusion. The jeopardy standard of section 7 of the Act will also provide protection in these occupied areas when there is a Federal nexus. Therefore, based on the above discussion, the Secretary is exercising her discretion to exclude 0.3 acre (0.1 hectare) of land from the designation of critical habitat for the Arizona eryngo.

As discussed above, based on the information provided by entities seeking exclusion, as well as any additional public comments we received, we evaluated whether certain lands in our proposed critical habitat designation were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act. We are excluding the following areas from critical habitat designation for the Arizona eryngo:

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq. ), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

Under the RFA, as amended, and as understood in light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat 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. Consequently, it is our position that only Federal action agencies will be directly regulated by this 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 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.

In summary, we have considered whether the designation will 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 this critical habitat designation will not have a significant economic impact on a substantial number of small business entities. Therefore, a regulatory flexibility analysis is not required.

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, we did not find that this critical habitat designation will significantly affect energy supplies, distribution, or use, as the areas identified as critical habitat are in cienegas in mostly remote areas with little energy supplies, distribution, or infrastructure in place. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we make the following finding:

(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. 658(5)-(7). “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 Government's 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-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 lands within the critical habitat designation that are owned by Pima County are already subject to a restrictive covenant that limits development and protects natural resources on the property, and small governments will be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat. Therefore, a Small Government Agency Plan is not required.

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 Arizona eryngo 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 designation of critical habitat for the Arizona eryngo, and it concludes that this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.

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 this 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, this final 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 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 7(a)(2) of the Act will 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.

In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this final rule identifies the physical or biological features essential to the conservation of the species. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that no Tribal lands fall within the boundaries of the critical habitat designation for the Arizona eryngo, so no Tribal lands will be affected by this designation.

A complete list of references cited in this rulemaking is available on the internet at https://www.regulations.gov and upon request from the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this final rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Arizona Ecological Services Field Office.

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: