On November 9, 2020, the NRC published a direct final rule (85 FR 71223) amending its regulations in part 72 of title 10 of the Code of Federal Regulations for the Holtec International HI-STORM UMAX Canister Storage System listing in the “List of approved spent fuel storage casks” to include Amendment No. 4 to Certificate of Compliance No. 1040. Amendment No. 4 revises the certificate of compliance to update the technical specifications for radiation protection regarding the dose rate limit for the vertical ventilated module lid, update the technical specifications for the vent blockage limiting condition for operation, and add a Type 1 version of multi-purpose canister MPC-37.

In the direct final rule, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on January 25, 2021. The NRC received and docketed one comment on the companion proposed rule (85 FR 71274, November 9, 2020). An electronic copy of the comment can be obtained from the Federal Rulemaking website at https://www.regulations.gov under Docket ID NRC-2020-0179 and is also available in ADAMS under Accession No. ML20349A179.

The NRC evaluated the comment against the criteria described in the direct final rule and determined that it was not significant and adverse. Specifically, the comment was outside the scope of this rulemaking and did not oppose the rule; propose a change or an addition to the rule; or cause the NRC to make a change to the rule, the certificate of compliance, or the technical specifications. Therefore, this direct final rule will become effective as scheduled.

Federal Civil Penalties Inflation Adjustment Act

The Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (“FCPIA Act”), requires federal agencies to adjust, by regulation, the CMPs within their jurisdiction to account for inflation. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “2015 Act”)  1 amended the FCPIA Act to require federal agencies to make annual adjustments not later than January 15 of every year. 2 The Board is now issuing a new final rule to set the CMP levels pursuant to the required annual adjustment for 2021. The Board will apply these adjusted maximum penalty levels to any penalties assessed on or after January 13, 2021, whose associated violations occurred on or after November 2, 2015. Penalties assessed for violations occurring prior to November 2, 2015 will be subject to the amounts set in the Board's 2012 adjustment pursuant to the FCPIA Act. 3

Under the 2015 Act, the annual adjustment to be made for 2021 is the percentage by which the Consumer Price Index for the month of October 2020 exceeds the Consumer Price Index for the month of October 2019. On December 23, 2020, as directed by the 2015 Act, the Office of Management and Budget (OMB) issued guidance to affected agencies on implementing the required annual adjustment which included the relevant inflation multiplier. 4 Using OMB's multiplier, the Board calculated the adjusted penalties for its CMPs, rounding the penalties to the nearest dollar. 5

The 2015 Act states that agencies shall make the annual adjustment “notwithstanding section 553 of title 5, United States Code.” Therefore, this rule is not subject to the provisions of the Administrative Procedure Act (the “APA”), 5 U.S.C. 553, requiring notice, public participation, and deferred effective date.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires a regulatory flexibility analysis only for rules for which an agency is required to publish a general notice of proposed rulemaking. Because the 2015 Act states that agencies' annual adjustments are to be made notwithstanding section 553 of title 5 of United States Code—the APA section requiring notice of proposed rulemaking—the Board is not publishing a notice of proposed rulemaking. Therefore, the Regulatory Flexibility Act does not apply.

There is no collection of information required by this final rule that would be subject to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

For the reasons set forth in the preamble, the Board amends 12 CFR part 263 as follows:

On December 27, 2020, President Trump signed into law the Appropriations Act, Public Law 116-260, Div. N, title III, sec. 330 (Dec. 27, 2020), to, among other things, make appropriations for the 2021 fiscal year and to provide coronavirus emergency response and relief. Section 330 of the Appropriations Act mandates that SBA must ensure that any small business concern participating in the 8(a) BD program on or before September 9, 2020 has the option to extend such participation for a period of one year from the end of its program term, regardless of whether the concern previously elected to voluntarily suspend its program participation in connection with the President's nationwide coronavirus emergency disaster declaration on March 13, 2020. (Presidential Disaster Declaration on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (March 13, 2020) ( https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak ).

Section 869 of the National Defense Authorization Act for Fiscal Year 2021, Public Law 116-283, title VIII, sec. 869 (January 1, 2021) (NDAA 2021) also contained the same language authorizing business concerns participating in the 8(a) BD program on or before September 9, 2020 to extend their participation in the program for a period of one year from the end of their program terms. The statutory language of both the Appropriations Act and NDAA 2021 authorizes an extension for firms participating in the program “on or before September 9, 2020.” There is no further clarifying language as to what “before” September 9, 2020 is intended to encompass. It is SBA's understanding that Congress extended the term of participation in the 8(a) BD program because it believed that the pandemic has adversely affected 8(a) concerns and their ability to participate in and receive the full benefits of the program. Thus, SBA believes it is reasonable to conclude that any firms participating in the program as of the date the national disaster was declared due to the pandemic ( i.e., March 13, 2020) should receive the program term extension authorized by Congress.

This extension authority does not extend to business concerns that graduated from or otherwise left the 8(a) BD program prior to March 13, 2020, or to business concerns that were admitted to the 8(a) BD program after September 9, 2020. In addition, this rule clarifies that the extension will not apply to business concerns that were Participants in the 8(a) BD program at any point between March 13, 2020, and September 9, 2020, but were terminated, early graduated or voluntarily withdrew from the program in lieu of being terminated or early graduated. SBA has already determined that such business concerns are no longer eligible to participate in the 8(a) BD program.

In addition, both the Appropriations Act and the NDAA 2021 provide that SBA shall issue regulations implementing the provision not later than 15 days after the date of enactment, and that the regulations shall be issued without regard to the notice requirements under section 553(b) of title 5, United States Code. As such, this rule is being implemented as an interim final rule with an immediate effective date.

In order to implement the statutory language of section 330 of the Appropriations Act and section 869 of the NDAA 2021, SBA is amending § 124.2 of its regulations to incorporate the optional program term extension for small business concerns participating in the 8(a) BD program on March 13, 2020. Specifically, revised § 124.2 provides that for a firm participating in the 8(a) BD program as of March 13, 2020 and through January 13, 2021, SBA will extend its program term by one year unless the concern declines such extension. A firm that was participating in the 8(a) BD program as of March 13, 2020, but has since graduated or otherwise left the program before January 13, 2021 must notify SBA of its intent to be readmitted for a period of one year from the date it completed its program term. Any such notification must be received by SBA no later than March 15, 2021. In addition, a firm seeking to be readmitted must certify that it continues to meet the applicable eligibility requirements as set forth in §§ 124.101 through 124.111.

SBA is also revising § 124.2 to clarify that any period of extension under the Act will be added to a Participant's transitional stage of participation in the 8(a) BD program. SBA has selected this approach for two reasons. First, in authorizing an extension of 8(a) BD program participation, Congress clearly intended to give certain 8(a) Participants the opportunity to recover and take full advantage of the program's business development assistance, including the additional assistance available to firms in the transitional stage as set forth in § 124.404(c). Second, it would be administratively burdensome and illogical to place a Participant that has already entered the transitional stage (or completed its program term) back in the development stage during its period of extension.

As part of this revision, SBA is also making conforming amendments to § 124.404 to clarify the respective terms of the developmental and transitional stages of program participation.

Lastly, SBA is revising § 124.509 of its regulations to clarify how an extension of participation under the Act will impact an 8(a) Participant's requirement to attain the targeted dollar levels of non-8(a) revenue in its extended program term. Currently, under SBA's regulations, a Participant in the transitional stage of the 8(a) BD program ( i.e., years five through nine) must generally achieve certain targets of revenue derived from sources other than sole source or competitive 8(a) contracts. The purpose of these targets is to ensure that Participants do not develop an unreasonable reliance on 8(a) awards, and to ease their transition into the competitive marketplace after leaving the 8(a) BD program. As such, the targets increase incrementally during the transitional stage of the program. Where a Participant fails to meet its applicable competitive business activity target for the just completed program year and SBA determines that the Participant did not make good faith efforts to obtain the requisite non-8(a) revenue, that Participant will be ineligible for sole source 8(a) contracts in the current program year unless a waiver is granted by SBA.

Currently, a Participant in the ninth year of its program term must derive at least 50 percent of its revenues from sources other than sole source or competitive 8(a) contracts. As noted above, the statutory language contained in section 330 of the Appropriations Act and section 869 of the NDAA 2021 was added because Congress believed that firms participating in the 8(a) BD program may not have been able to experience the full benefits of the program due to complications caused by the pandemic. Thus, it is our view that firms that were in program year nine as of March 13, 2020 should not be subject to a higher business activity target for the time added on to the end of their program terms by section 330 and section 869. As such, the same 50 percent business activity target that applies to program year nine will also apply to the extended program term. In order to receive sole source 8(a) contracts during the extended program term a Participant must meet (or have met) the applicable 50 percent non-8(a) business activity target or have made good faith efforts to obtain the requisite non-8(a) revenue in the ninth program year (or fifth year of the transitional stage). Because the period of extension for firms that were participating as of March 13, 2020 but have since graduated or otherwise left the program may be less than a full year, SBA understands that it may be more difficult to meet the 50 percent non-8(a) business activity target for the extended program term. However, SBA encourages Participants to make good faith efforts to obtain at least 50 percent of their revenue from non-8(a) sources during the extension period in order to ease the transition to the competitive marketplace after graduating from the 8(a) BD program. As a point of clarification, SBA notes that this interim final rule does not revise the schedule of the transitional stage or the corresponding business activity target requirements for current 8(a) Participants in years one through five of the transitional stage of the program. In other words, for purposes of the business activity target requirements any such Participant that elects to extend its participation in the program under the Act will not repeat a year in the transitional stage or revert back to a prior year in the transitional stage as a result of the program extension.

This interim final rule is effective without advance notice and public comment because section 330(b) of the Appropriations Act and section 869(b) of the NDAA 2021 authorize SBA to issue implementing regulations without regard to notice requirements under 5 U.S.C. 553(b). However, SBA is providing a 60-day comment period for the public to comment on this Interim Final Rule. SBA's justification for the use of an interim final rule and immediate effective date follow.

In general, SBA publishes a rule for public comment before issuing a final rule, in accordance with the Administrative Procedure Act, 5 U.S.C. 553. The Administrative Procedure Act provides an exception to this standard rulemaking process, however, where an agency finds good cause to adopt a rule without prior public participation. 5 U.S.C. 553(b)(3)(B). The good cause requirement is satisfied when prior public participation is impracticable, unnecessary, or contrary to the public interest. Under such circumstances, an agency may publish an interim final rule without soliciting public comment.

SBA has determined that there is good cause for dispensing with advance public notice and comment on the grounds that that it would be contrary to the public interest. Specifically, advance public notice and comment would delay the delivery of critical business development assistance Congress sought to extend to firms that are presently not eligible for the program's assistance because they have already graduated or otherwise left the 8(a) BD program. As explained above, such firms will need to notify SBA that they would like to be readmitted to the program as soon as possible in order to take full advantage of the extension period.

In addition, both the Appropriations Act and the NDAA provisions cited provide specific authority for SBA to proceed with this rule. Section 330(b) of the Appropriation Act provides: “(b). Emergency Rulemaking Authority—Not later than 15 days after the date of enactment of this Act, the Administrator shall issue regulations to carry out this section without regard to the notice requirements under section 553(b) of title 5, United States Code.” Similarly, section 869(b) of the NDAA 21 provides: “(b) Emergency Rulemaking Authority.—Not later than 15 days after the date of enactment of this section, the Administrator shall issue regulations to carry out this section without regard to the notice requirements under section 553(b) of title 5, United States Code.”

Although this interim final rule is effective immediately, comments are solicited from interested members of the public on all aspects of the interim final rule. These comments must be received on or before the close of the comment period noted in the DATES section of this interim final rule. SBA will then consider these comments in making any necessary revisions to these regulations.

The APA requires that “publication or service of a substantive rule shall be made not less than 30 days before its effective date, except as—otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The purpose of this provision is to provide interested and affected member of the public sufficient time to adjust their behavior before the rule takes effect.

In light of the urgent need to assist 8(a) small business concerns during the pandemic, SBA finds that there is good cause for making this rule effective immediately instead of observing the 30-day period between publication and effective date. While this interim final rule is effective immediately upon publication, SBA is inviting public comment on the rule during a 60-day period and will consider the comments in developing a final rule. SBA has included an applicability date to make clear that the rule is applicable for eligible 8(a) companies to either retain or regain their 8(a) status as quickly as possible.

The Office of Information and Regulatory Affairs has determined that this interim final rule is not significant for the purposes of Executive Order 12866 and is not considered a major rule under the Congressional Review Act.

This interim final rule is necessary to implement section 330 of the Appropriations act and section 869 of the NDAA 2021 in order to provide relief to 8(a) firms adversely impacted by the March 13, 2020, emergency declaration. SBA anticipates that this rule will substantially benefit such 8(a) firms, their employees, and the communities they serve. The rule will allow 8(a) firms to continue to be eligible to be awarded both competitive and sole source 8(a) contracts for an extended period in the program. In FY 2019, 8(a) firms were awarded 5.15% of federal contract dollars amounting to $30.39 billion with $8.62 billion awarded through set asides, $9.90 billion awarded as sole-source, and $11.87 billion awarded though open competition or with another preference ( e.g., HUBZone) applied. 1 In the past five years (FY 2016-FY 2020) the average total contract awards per 8(a) firm ranged from $3.15 million in FY 2018 to $4.45 million in FY 2016.

An addition of one year to the term of 8(a) firms will increase the pool of firms participating in the program by up to 400 to 600 8(a) firms each year for the next ten years, which reflects the amount of firms that have graduated from the 8(a) program annually in the past five years, on average. Approximately 4,150 8(a) firms would be eligible to receive benefits for an additional year in the 8(a) program during the course of the next ten years based on the number of firms within the current 8(a) portfolio and including those firms that graduated since March 13, 2020. While more firms will be eligible to participate in the 8(a) program each year, the impact on 8(a) contract dollars awarded is anticipated to be non-substantive.

SBA will also need to account for costs associated with the management of an additional year of eligibility for 8(a) firms, which includes business development assistance and compliance oversight. In FY 2019, with nearly 5,200 8(a) firms in the program, SBA expended approximately $12,150 per 8(a) Program Participant based on a total program cost of $63.17 million; this figure includes overhead costs  2 . An additional year of eligibility would likely increase total program costs stemming from program services. However, some of these costs ( e.g., overhead) would be redistributed across the 8(a) program and other SBA programs or reduced due to economies of scale. SBA is unable to estimate the marginal costs associated with an additional year at the end of a firm's term in the 8(a) program, but anticipates that it would not exceed SBA's annual costs for an 8(a) Participant.

This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

This action meets applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.

This rule does not have federalism implications as defined in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in the Executive Order. As such it does not warrant the preparation of a Federalism Assessment.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The SBA has determined that this rule does not affect any existing collection of information. The rule does require a concern seeking to be readmitted to the 8(a) BD program to notify SBA of its intent to be readmitted and make a certification that it continues to meet the applicable 8(a) BD program eligibility requirements as set forth in §§ 124.101 through 124.111 of title 13 of the Code of Federal Regulations. SBA is not seeking to collect information through any required form, but rather is anticipating a simple email from the business concern to SBA notifying SBA of its intent to be readmitted to the 8(a) BD program. There are 346 business concerns whose program terms have expired since March 13, 2020. Those are the only business concerns who would be subject to the notification requirement.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires administrative agencies to consider the effect of their actions on small entities, small nonprofit enterprises, and small local governments. Pursuant to the RFA, when an agency issues a rulemaking, the agency must prepare a regulatory flexibility analysis which describes the impact of the rule on small entities. However, rules that are exempt from notice and comment are exempt from the RFA requirements when the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. Small Business Administration's Office of Advocacy guide: How to Comply with the Regulatory Flexibility Ac. Ch.1. p.9. Accordingly, SBA is not required to conduct a regulatory flexibility analysis.

Accordingly, for the reasons stated in the preamble, SBA is amending 13 CFR part 124 as follows:

I. Clarifying That the Department's Oversales Rule Does Not Limit the Maximum Amount of DBC Carriers May Offer to Passengers Denied Boarding Involuntarily, and Related Provisions

Section 425(e) of the FAA Reauthorization Act of 2018 (Pub. L. 115-254, October 5, 2018), which includes the Transparency Improvements and Compensation to Keep Every Ticketholder Safe Act of 2018 (TICKETS Act), requires the Department to complete a rulemaking to clarify that (1) there is no maximum level of compensation an air carrier or foreign air carrier may pay to a passenger who is involuntarily denied boarding as the result of an oversold flight, and (2) the DBC compensation levels set forth in the regulation are the minimum levels of compensation an air carrier or foreign air carrier must pay to a passenger who is involuntarily denied boarding as the result of an oversold flight. “Maximum” DBC amount and DBC “limit” are terms found in various provisions of the Department's oversales rule in 14 CFR part 250. The concept of “maximum” DBC amount that a carrier is required to pay and a “limit” imposed on DBC calculation results were intended to (1) ensure passengers involuntarily denied boarding receive, at a minimum, a DBC amount required by the regulation when the DBC calculation resulted in a higher amount; and (2) allow carriers to impose a limit on the amount that they are liable for compensating eligible passengers in the event of involuntary denied boarding, if carriers choose to do so. Part 250 was never intended to prohibit carriers from voluntarily paying an amount of DBC that is higher than the “maximum” DBC amounts or DBC “limits” set forth in part 250.

Although during the many decades since the promulgation of the oversales rule, the Department has seen no evidence of industry confusion about the meaning of these terms, by passing the TICKETS Act, Congress is requiring DOT to revise the rule for clarity to avoid any potential public confusion about whether carriers may choose to pay a higher amount of DBC. Accordingly, in this final rule, the Department is making some editorial changes to the regulatory text in part 250 to make this point clear. Specifically, this final rule eliminates words and phrases such as “maximum” or “no more than” from § 250.5 to clarify that carriers are permitted to pay more than the amounts set by the regulations. Instead of using these terms, the amended part 250 states that carriers are required to provide to eligible passengers at least the lower amount of: (1) 200% of the passenger's one-way fare or $775 for delays of more than one hour but less than two hours for domestic flights and delays of more than one hour but less than four hours for international flights, and (2) 400% of the passenger's one-way fare or $1550 for delays of more than two hours for domestic flights and delays of more than four hours for international flights. Further, the Department is replacing the term “maximum denied boarding compensation” and “denied boarding compensation limit(s)” with the term “denied boarding compensation liability limit(s)” or “DBC liability limit(s).” The new terms make clear that the monetary amounts prescribed by the rule are intended to allow carriers to limit the amount they are required to compensate passengers that are involuntarily denied boarding if the carriers choose to do so, and that the terms are not intended to impose a ceiling for the amount of compensation a carrier may offer and a passenger may receive. Further, by this final rule, the Department is adding paragraph (g) in § 250.5 to state that nothing in the rule prohibits carriers from offering denied boarding compensation in an amount more than the amount calculated according to part 250, or the denied boarding compensation liability limits provided by part 250. Similar amendments are made for the written denied boarding notice prescribed in § 250.9.

Like the denied boarding compensation liability limit, the domestic baggage liability limit provided in 14 CFR part 254 is intended to permit carriers to adopt a ceiling that caps their liability for delayed, lost, or damaged bags in domestic air transportation, and it is not intended to prohibit them from offering a compensation that is a higher amount than the adopted ceiling amount. As such, the Department is also removing the terms “minimum limit of [baggage] liability” and “minimum liability amount” used in 14 CFR 254.6, and replacing them with the term “domestic baggage liability limit.”

The TICKETS Act also requires the Department to complete a rulemaking to ensure that carriers must proactively offer to pay compensation to a passenger who is voluntarily or involuntarily denied boarding on an oversold flight, rather than waiting until the passenger requests the compensation. The Department has carefully reviewed the existing rule text and its enforcement records, and believes that the Department's oversales rule already imposes such requirements on carriers. Specifically, with respect to passengers denied boarding voluntarily, § 250.2b provides that, in the event of an oversold flight, carriers shall request volunteers for denied boarding before using any other boarding priority. The rule further defines a “volunteer” as “a person who responds to the carrier's request for volunteers and who willingly accepts the carrier's offer of compensation, at any amount, in exchange for relinquishing the confirmed reserved space (emphasis added).” In other words, for a carrier to fulfill its obligation of soliciting for volunteers before denying any passenger boarding involuntarily, carriers must first request volunteers with an offer of compensation. Further, with respect to passengers denied boarding involuntarily, § 250.8 provides that carriers must tender to passengers DBC on the day and in the place the denied boarding occurs, or within 24 hours after the denied boarding occurs. Carriers are required to do so even if the eligible passenger is not aware of the entitlement to DBC and therefore does not make a request for compensation. Although the Department's Office of Aviation Consumer Protection interprets part 250 as requiring carriers to offer, proactively, compensation to passengers voluntarily and involuntarily denied boarding, the Department is amending § 250.2b to require explicitly that carriers must provide compensation proactively instead of waiting for passengers to request the compensation in an oversale situation. The Department will continue to enforce part 250 to ensure that passengers that have volunteered to be denied boarding in response to carriers' offers of compensation and passengers denied boarding involuntarily receive proper compensations due to them.

For a carrier that imposes a liability limit to its denied boarding compensation and mishandled domestic baggage compensation, the limits must be updated to these new amounts for transportation taking place on or after the effective date (as opposed to tickets sold on or after the effective date). All notices to passengers required by parts 250 and 254 as they pertain to the new DBC liability limits and domestic baggage liability limit must be updated by the effective date of this final rule.

Section 425(b) of the TICKETS Act contains a self-effectuating provision that prohibits airlines from denying boarding to a revenue passenger traveling on a confirmed reservation or involuntarily removing that passenger from a flight, if the passenger checked in before the check-in deadline and had a ticket or boarding pass collected or electronically scanned and accepted by the gate agent. Pursuant to sections 425(c) and (d) of the TICKETS Act, this prohibition is subject to safety, security, or health risk exceptions and it may not be construed as a limitation on the responsibility or authority of a pilot in command of an aircraft under 14 CFR 121.533. This prohibition also may not limit a penalty imposed on an individual for interfering with flight crew members and attendants, as provided in 49 U.S.C. 46504. The requirements in sections 425(b)-(d) of the TICKETS Act became effective on October 5, 2018, the effective date of the FAA Reauthorization Act of 2018. This final rule codifies these requirements exactly as provided in the FAA Reauthorization Act of 2018  1 in 14 CFR part 250, and makes it enforceable by the Department.

The Department's oversales rule, 14 CFR part 250, applies to direct air carriers and foreign air carriers with respect to scheduled flight segments using an aircraft that has a designed passenger capacity of 30 or more passenger seats, operating in interstate air transportation, or foreign air transportation with respect to nonstop flight segments originating at a point within the United States. In contrast, pursuant to section 402 of the FAA Reauthorization Act of 2018, “covered air carrier” as used in the TICKETS Act means an air carrier or a foreign air carrier as those terms are defined in 49 U.S.C. 40102. Under 49 U.S.C. 40102, an “air carrier” means a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation; and a “foreign air carrier” means a person, not a citizen of the United States, undertaking by any means, directly or indirectly, to provide foreign air transportation. This means that more air carriers and foreign air carriers are covered under the TICKETS Act than carriers covered under the existing requirements of part 250. The requirement of sections (b)-(d) of the TICKETS Act apply to all direct and indirect air carriers and foreign air carriers that fall under the definitions of section 40102. 2 As such, we are revising the applicability section of part 250, § 250.2, to specify that the requirements regarding removing a revenue passenger from a flight, as codified under 14 CFR 250.7, has a broader scope than the other provisions of part 250.

According to the TICKETS Act, airlines are prohibited from removing a passenger or denying a passenger boarding after the passenger's ticket or boarding pass is “ collected or electronically scanned and accepted by the gate agent” (emphasis added). Therefore, a carrier agent's physical collection of a paper boarding pass alone does not indicate an acceptance of the passenger to board the aircraft. Similarly, when a carrier uses electronic devices of any kind to scan a boarding pass ( e.g., a paper boarding pass, an electronic boarding pass on a mobile device), the scanning itself alone does not indicate that the carrier has accepted the passenger for boarding. After the physical collection or electronic scanning, the gate agent may have reasons to not permit a passenger to board ( e.g., the agent may find out that the passenger was trying to board a wrong flight, or may find out that the passenger has been selected to be involuntarily denied boarding). In those situations, the carrier may legally deny the passenger boarding because the passenger has not been accepted by a gate agent. Alternatively, if the gate agent accepts a passenger for boarding after collecting or scanning the passenger's boarding pass, the carrier is prohibited from removing the passenger from the flight thereafter.

The Department's oversales rule, 14 CFR part 250, requires that the DBC liability limit amounts be periodically adjusted to reflect changes in the Consumer Price Index for All Urban Consumers (CPI-U). Specifically, 14 CFR 250.5(e) provides for the review of denied boarding compensation every two years through a specific formula to calculate the revised DBC liability limit amounts. The formula is below:

Section 250.5(e) specifies that the DBC liability limit in § 250.5(a)(3) shall be twice the revised limit for § 250.5(a)(2), the DBC liability limit in § 250.5(b)(2) shall be the same as the revised limit for § 250.5(a)(2), and the DBC liability limit in § 250.5(b)(3) shall be twice the revised limit in § 250.5(a)(2).

In a final rule issued on May 27, 2015, the Department reviewed the DBC liability limit amounts then in effect ($650 and $1,300). Based on the formula prescribed in § 250.5(e), using the CPI-U for July 2014, the Department determined that the DBC liability limit amounts should be raised to $675/$1,350. 4

For this review, we are using the CPI-U for July 2020, which was issued by the Bureau of Labor Statistics on August 12, 2020. In this review, we apply the formula using the CPI-U from August 2011 (the basis month required by the formula) and July 2020. The results of this calculation require that the DBC liability limit amounts be raised. Specifically, the appropriate inflation adjustment for the amount provided in § 250.5(a)(2) is $675 × 259.101/226.545 [$675 × 1.1437], which yields $772. The base amount of $675 in the formula was the denied boarding compensation liability limit amount in § 250.5(a)(2), 5 as adjusted by the 2015 final rule; 259.101 was the CPI-U for July 2020, and 226.545 was the CPI-U for August 2011. Section 250.5(e) requires us to round the adjustment to the nearest $25, which is $775 in this case. Section 250.5 under paragraphs (a)(3) and (b)(3) provide that for passengers who are not rerouted to reach their destination within two hours of the planned arrival time of their original domestic flight (four hours for international transportation), the DBC liability limit amount is twice the amount provided by § 250.5(a)(2) and (b)(2); therefore, under the formula adjustment, this amount is twice $775, or $1,550.

The baggage liability limit that air carriers may apply to domestic air service is established by 14 CFR part 254. This limit applies to a carrier's liabilities towards any provable direct or consequential damages resulting from the disappearance of, damage to, or delay in delivery of a passenger's baggage that was in a carrier's custody during domestic air transportation. Like the requirements regarding the provision of DBC to passengers in appropriate circumstances, this requirement has never limited the maximum amount of compensation a carrier may provide a passenger in connection with mishandled baggage. It merely provides a regulatory minimum liability limit that carriers may set. Section 254.6 requires review every two years of the limit of liability prescribed in part 254 and revision of the limit of liability, if necessary, to reflect changes in the CPI-U as of July of each review year through a specific formula. The formula is below:

The application of the formula during the 2014-2015 review of the domestic baggage liability limit raised the amount from $3,400 to the current amount of $3,500. The current review requires another inflation adjustment. Applying the formula using the consumer price index for December 1999 (the basis month required by the formula) and July 2020, the appropriate inflation adjustment is $2,500 × 259.101/168.30 [$2,500 × 1.5395], which yields $3,848.75. The base amount of $2,500 in the formula was the minimum liability limit in part 254 at the time that this biennial indexing provision was added to the rule in 1999, 259.101 was the CPI-U for July 2020, and 168.30 was the CPI-U for December 1999. Section 254.6 requires rounding the adjustment to the nearest $100, which is $3,800.

Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553) provides that when an agency, for good cause, finds that notice and public procedure thereon are impractical, unnecessary, or contrary to the public interest, the agency may issue a final rule without providing notice and an opportunity for public comment (5 U.S.C. 553(b)(3)(B)). The Department has determined that there is good cause to issue this final rule without notice and an opportunity for public comment because such notice and comment would be unnecessary.

This rule implements section 425(e) of the TICKETS Act by making conforming changes to the rule text of 14 CFR part 250 to clarify that the Department's oversales regulation does not impose a ceiling on the amount of denied boarding compensation an airline may provide to a passenger involuntarily denied boarding. These editorial changes do not amend what the rule previously required and is not expected to impact carriers' current practice. This rule also implements sections 425(b)-(d) of the TICKETS Act by incorporating, virtually verbatim, the statutory language prohibiting airlines from involuntarily denying boarding to a passenger after the passenger's boarding pass has been collected or scanned and the passenger has boarded. Since the Department is exercising no discretion to implement these TICKETS Act provisions, public comment is unnecessary.

The Department has also determined that under 5 U.S.C. 553(b)(3)(B) good cause exists for dispensing with a notice of proposed rulemaking and public comment for the inflation adjustments herein as the application of this rule does not involve any agency discretion. These adjustments are a ministerial inflation update based on the terms and formulas set by 14 CFR 250.5 and 14 CFR 254.6. Those formulas were subject to notice and comment in the rulemaking proceedings during which they were added to the baggage liability and oversales rules. Accordingly, because this is purely a formula update, we find that there is good cause to dispense with notice and comment for this rulemaking.

This final rule has been evaluated following existing policies and procedures, and is considered not significant under Executive Order 12866 and DOT's Regulatory Policies and Procedures. Therefore, the rule has not been reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. This regulation conforms with the policies and procedures of DOT's administrative rule on rulemakings. 49 CFR part 5.

The rule revises 14 CFR part 250 to implement certain provisions of the TICKETS Act, but does not impose additional costs on carriers. The revision clarifies the meaning of “maximum” DBC and DBC “limits,” but does not affect the amounts carriers must compensate passengers. Instead, the clarification is intended to prevent any potential misunderstanding from the public. The revision also prohibits removing passengers after their boarding passes are accepted by carriers or after they board aircraft, codifying a self-effectuating statutory provision. Removing passengers after their boarding passes are accepted is not a common practice among carriers, and the revision will not require carriers to alter their behavior meaningfully. Thus, the benefits and costs associated with implementing the TICKETS Act provisions are de minimis.

The rule provides for an inflation adjustment to the DBC liability limit amounts that air carriers and foreign air carriers must pay passengers who are involuntarily denied boarding. The inflation adjustment is required by regulation and does not involve any exercise of discretion or interpretation. Because the Department does not have the flexibility to alter the inflation adjustment, it did not consider regulatory alternatives. The rule increases transfers from carriers to passengers to the extent that it increases compensation; any increase, however, would be minimal. In 2019, 20,868 passengers—24 passengers per 1,000,000 enplaned passengers—were involuntarily denied boarding on scheduled domestic and outbound international flights. 6 Many of those passengers qualified for compensation amounts below the DBC liability limit, and their compensation would not have been affected by the increase in the limits.

The rule provides for an inflation adjustment to the amount of the minimum limit on baggage liability that air carriers may assert in cases of mishandled baggage. The adjustment is required by current regulation, with no opportunity for interpretation. The rule increases transfers from carriers to passengers to the extent that it increases mishandled baggage compensation. This increase would be limited, however, because the majority of mishandled baggage cases do not result in claims that meet the liability limit. Based on information provided by carriers during an inflation adjustment review to the domestic baggage limit in 2013, slightly more than half of one percent of mishandled bags qualify for the current limit. 7

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires an assessment of the impact of proposed and final rules on small entities unless the agency certifies that the proposed regulation will not have a significant economic impact on a substantial number of small entities. An air carrier or a foreign air carrier is a small business if it provides air transportation only with small aircraft ( i.e., aircraft with up to 60 seats/18,000-pound payload capacity). See 14 CFR 399.73. The revisions of the baggage liability amounts affect flight segments operated with large aircraft, i.e., more than 60 seats. The revisions of the DBC amounts affect flight segments operated with aircraft designed to have passenger capacity of 30 or more. As a result, many operations of small entities, such as air taxis and many commuter air carriers, are not covered by the rule. Moreover, any additional costs for small entities associated with the rule will be minimal and, in the case of baggage liability, may be covered by insurance. Accordingly, I hereby certify that this action will not have a significant economic impact on a substantial number of small entities.

This final rule imposes no new reporting or record keeping requirements necessitating clearance by OMB.

The Department has analyzed the environmental impacts of this proposed action pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq. ), and has determined that it is categorically excluded pursuant to DOT Order 5610.1C, Procedures for Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979) available at https://www.transportation.gov/office-policy/transportation-policy/procedures-consideringenvironmental-impacts-dot-order-56101c. Categorical exclusions are actions identified in an agency's NEPA implementing procedures that do not normally have a significant impact on the environment, and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See 40 CFR 1508.1(d). In analyzing the applicability of a categorical exclusion, the agency must also consider whether extraordinary circumstances are present that would warrant the preparation of an EA or EIS. Id. Paragraph 4.c.6.i of DOT Order 5610.1C provides that “[a]ctions relating to consumer protection, including regulations” are categorically excluded. The purpose of this rulemaking is to adjust the amounts for denied boarding compensation and the minimum domestic baggage liability limit. The Department does not anticipate any environmental impacts, and there are no extraordinary circumstances present in connection with this rulemaking.

Accordingly, the Department of Transportation amends 14 CFR parts 250 and 254 as follows:

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015  1 directs agencies to adjust the civil penalty maximums under their jurisdiction for inflation every January. Accordingly, the Commission issues annual adjustments to the maximum civil penalty amounts under its jurisdiction. 2

Commission Rule § 1.98 sets forth the applicable civil penalty amounts for violations of certain laws enforced by the Commission. 3 As directed by the FCPIAA, the Commission is issuing adjustments to increase these maximum civil penalty amounts to address inflation since its prior 2020 adjustment. The following adjusted amounts will take effect on January 13, 2021:

• Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1) (premerger filing notification violations under the Hart-Scott-Rodino Improvements Act)—Increase from $43,280 to $43,792;

• Section 11( l ) of the Clayton Act, 15 U.S.C. 21( l ) (violations of cease and desist orders issued under Clayton Act section 11(b))—Increase from $22,994 to $23,266;

• Section 5( l ) of the FTC Act, 15 U.S.C. 45( l ) (unfair or deceptive acts or practices)—Increase from $43,280 to $43,792;

• Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. 45(m)(1)(A) (unfair or deceptive acts or practices)—Increase from $43,280 to $43,792;

• Section 5(m)(1)(B) of the FTC Act, 15 U.S.C. 45(m)(1)(B) (unfair or deceptive acts or practices)—Increase from $43,280 to $43,792;

• Section 10 of the FTC Act, 15 U.S.C. 50 (failure to file required reports)—Increase from $569 to $576;

• Section 5 of the Webb-Pomerene (Export Trade) Act, 15 U.S.C. 65 (failure by associations engaged solely in export trade to file required statements)—Increase from $569 to $576;

• Section 6(b) of the Wool Products Labeling Act, 15 U.S.C. 68d(b) (failure by wool manufacturers to maintain required records)—Increase from $569 to $576;

• Section 3(e) of the Fur Products Labeling Act, 15 U.S.C. 69a(e) (failure to maintain required records regarding fur products)—Increase from $569 to $576;

• Section 8(d)(2) of the Fur Products Labeling Act, 15 U.S.C. 69f(d)(2) (failure to maintain required records regarding fur products)—Increase from $569 to $576;

• Section 333(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6303(a) (knowing violations of EPCA sec. 332, including labeling violations)—Increase from $468 to $474;

• Section 525(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6395(a) (recycled oil labeling violations)—Increase from $22,994 to $23,266;

• Section 525(b) of the Energy Policy and Conservation Act, 42 U.S.C. 6395(b) (willful violations of recycled oil labeling requirements)—Increase from $43,280 to $43,792;

• Section 621(a)(2) of the Fair Credit Reporting Act, 15 U.S.C. 1681s(a)(2) (knowing violations of the Fair Credit Reporting Act)—Increase from $4,063 to $4,111;

• Section 1115(a) of the Medicare Prescription Drug Improvement and Modernization Act of 2003, Public Law 108-173, as amended by Public Law 115-263, 21 U.S.C. 355 note (failure to comply with filing requirements)—Increase from $15,301 to $15,482; and

• Section 814(a) of the Energy Independence and Security Act of 2007, 42 U.S.C. 17304 (violations of prohibitions on market manipulation and provision of false information to Federal agencies)—Increase from $1,231,690 to $1,246,249.

The FCPIAA, as amended, directs Federal agencies to adjust each civil monetary penalty under their jurisdiction for inflation in January of each year pursuant to a cost-of-living adjustment. 4 The cost-of-living adjustment is based on the percent change between the U.S. Department of Labor's Consumer Price Index for all-urban consumers (“CPI-U”) for the month of October preceding the date of the adjustment, and the CPI-U for October of the prior year. 5 Based on that formula, the cost-of-living adjustment multiplier for 2021 is 1.01182. The FCPIAA also directs that these penalty level adjustments should be rounded to the nearest dollar. Agencies do not have discretion over whether to adjust a maximum civil penalty, or the method used to determine the adjustment.

The following chart illustrates the application of these adjustments to the civil monetary penalties under the Commission's jurisdiction.

These new penalty levels apply to civil penalties assessed after the effective date of the applicable adjustment, including civil penalties whose associated violation predated the effective date. 6 These adjustments do not retrospectively change previously assessed or enforced civil penalties that the FTC is actively collecting or has collected.

The FCPIAA, as amended, directs agencies to adjust civil monetary penalties through rulemaking and to publish the required inflation adjustments in the Federal Register , notwithstanding section 553 of title 5, United States Code. Pursuant to this congressional mandate, prior public notice and comment under the APA and a delayed effective date are not required. For this reason, the requirements of the Regulatory Flexibility Act (“RFA”) also do not apply. 7 Further, this rule does not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1995 as amended. 44 U.S.C. 3501 et seq.

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).

For the reasons set forth in the preamble, the Federal Trade Commission amends title 16, chapter I, subchapter A, of the Code of Federal Regulations, as follows:

Executive Summary Purpose of the Regulatory Action

This rule is needed to carry out the requirements of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and Office of Management and Budget guidance M-21-10. The rule adjusts, as required for 2021, the maximum civil penalties under 29 CFR 4071 and 29 CFR 4302 that the Pension Benefit Guaranty Corporation (PBGC) may assess for failure to provide certain notices or other material information and certain multiemployer plan notices.

PBGC's legal authority for this action comes from the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and from sections 4002(b)(3), 4071, and 4302 of the Employee Retirement Income Security Act of 1974 (ERISA).

This rule adjusts as required by law the maximum civil penalties that PBGC may assess under sections 4071 and 4302 of ERISA. The new maximum amounts are $2,259 for section 4071 penalties and $301 for section 4302 penalties.

PBGC administers title IV of ERISA. Title IV has two provisions that authorize PBGC to assess civil monetary penalties. 1 Section 4302, added to ERISA by the Multiemployer Pension Plan Amendments Act of 1980, authorizes PBGC to assess a civil penalty of up to $100 a day for failure to provide a notice under subtitle E of title IV of ERISA (dealing with multiemployer plans). Section 4071, added to ERISA by the Omnibus Budget Reconciliation Act of 1987, authorizes PBGC to assess a civil penalty of up to $1,000 a day for failure to provide a notice or other material information under subtitles A, B, and C of title IV and sections 303(k)(4) and 306(g)(4) of title I of ERISA.

Preamble acronyms and abbreviations. The EPA uses multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

Organization of this document. The information in this preamble is organized as follows:

Categories and entities potentially impacted by this rule include sources subject to new source performance standards (NSPS) requirements under section 111 of the CAA. While this rule informs all NSPS source categories, the EPA is finalizing a SCF specific to electric generating units regulated under 40 CFR part 60, subpart TTTT. The North American Industry Classification System (NAICS) code for the industrial, federal government, and state/local government electric generating units is 221112. The NAICS code for tribal government electric generating units is 921150.

In addition to being available in the docket, an electronic copy of this final action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this final action at https://www.epa.gov/stationary-sources-air-pollution/nsps-ghg-emissions-new-modified-and-reconstructed-electric-utility. Following publication in the Federal Register , the EPA will post the Federal Register version of the final rule and key technical documents at this same website.

Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this final rule is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) by March 15, 2021. Moreover, under section 307(b)(2) of the CAA, the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements. The Administrator has determined that this action is subject to section 307(d) of the CAA (42 U.S.C. 7607(d)(1)(V)). Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to convene a proceeding for reconsideration “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment, (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. Environmental Protection Agency, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

In Executive Order 13783 (Promoting Energy Independence and Economic Growth), all executive departments and agencies, including the EPA, were directed to “immediately review existing regulations that potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.”  1 Moreover, the Executive Order directed the EPA to undertake this process of review with regard to the “Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units,” 80 FR 64510 (October 23, 2015) (2015 Rule).

In a document signed the same day as Executive Order 13783 and published in the Federal Register at 82 FR 16330 (April 4, 2017), the EPA announced that, consistent with the Executive Order, it was initiating a review of the 2015 Rule and providing notice of a forthcoming proposed rulemaking consistent with the Executive Order. After due deliberation, the EPA issued a proposed rulemaking, “Review of Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units—Proposed Rule,” 83 FR 65424 (December 20, 2018) (2018 Proposal). Here the EPA is finalizing a rulemaking with respect to whether GHG emissions from EGUs contribute significantly to dangerous air pollution, in reliance on a methodology articulated herein for determining whether GHG emissions from other NSPS source categories contribute significantly to dangerous air pollution. Any action regarding the proposal to revise the standards of performance, including the underlying determinations of the BSER, for new, reconstructed, and modified coal-fired EGUs, including certain technical issues, is beyond the scope of this final rule and comments received on the 2018 Proposal will be addressed in a separate future action.

The EPA is finalizing a pollutant-specific SCF for GHG emissions from EGUs. That finding is based on an emissions threshold framework for determining significance, as well as secondary criteria to be applied in certain circumstances, for other NSPS source categories.

In 2015, the EPA promulgated “Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units,” 80 FR 64510 (October 23, 2015) (2015 Rule). When the EPA promulgated the 2015 Rule, it took note of both utility announcements and U.S. Energy Information Administration (EIA) modeling and, based on that information, concluded that even in the absence of this rule, (1) existing and anticipated economic conditions are such that few, if any, coal-fired EGUs will be built in the foreseeable future, and that (2) utilities and project developers are expected to choose new generation technologies (primarily natural gas combined cycle (NGCC)) that would meet the final standards and also renewable generating sources that are not affected by these final standards. See 80 FR 64515 (October 23, 2015). The EPA, therefore, projected that the 2015 Rule would “result in negligible CO 2 emission changes, quantified benefits, and costs by 2022 as a result of the performance standards for newly constructed EGUs.” Id. The Agency went on to say that it had been “notified of few power sector new source performance standards (NSPS) modifications or reconstructions.” Based on that additional information, the EPA said it “expects that few EGUs will trigger either the modification or the reconstruction provisions” of the 2015 Rule. Id. at 64516.

The EPA has concluded that the projections described in the 2015 Rule remain generally correct. 2 In the period of analysis, 3 the EPA expects there to be few, if any, newly constructed, reconstructed, or modified sources that will trigger the provisions the EPA is promulgating in this action. Consequently, the EPA projects that there will be no significant changes in carbon dioxide (CO 2 ) emissions or in compliance costs as a result of this final rule.

On December 20, 2018, the EPA published a proposal to revise certain parts of the 2015 Rule; “Review of Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units.” 83 FR 65424 (2018 Proposal). The majority of that proposal was dedicated to the issue of the best system of emission reduction (BSER) for newly constructed, modified, and reconstructed coal-fired EGUs. Comments received on that issue are not being addressed in this rule and will be addressed in any future EPA action. In that proposal, the EPA solicited comment on whether to make a pollutant-specific significant contribution determination for GHG emissions from EGUs, 83 FR 65432 n. 25, which is the subject of this action.

CAA section 111(b)(1)(A) states that “[The Administrator] shall include a category of sources in such list if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.”

In the 2015 Rule, the EPA promulgated standards for GHG (measured CO 2 emissions) from fossil fuel-fired steam generating EGUs and combustion turbines, a pollutant that the Administrator had not considered when he listed the categories of those sources—fossil fuel-fired steam generators  4 and stationary gas turbines. 5 See 80 FR 64510. Similarly, in 2016, the EPA promulgated an NSPS for GHG (measured by methane (CH 4 ) emissions) from oil and gas sources, a pollutant that the Administrator had not considered when he listed the category for those sources—the Crude Oil and Natural Gas Production source category. 6 See 81 FR 35824 (June 3, 2016) (2016 Oil & Gas Rule).

In each rule, the EPA interpreted CAA section 111(b) to require that an SCF and endangerment finding be made only with respect to the source category, at the time the EPA lists the category, and to authorize the EPA to promulgate NSPS for GHG, as long as the EPA provides a rational basis for doing so. However, in each rule, the EPA acknowledged that some stakeholders had argued that the EPA first needed to make a pollutant-specific SCF, that is, a finding that GHG from the source category contributes significantly to dangerous air pollution. In each rule, the EPA stated that it disagreed with those stakeholders, but nevertheless, in the alternative, did make a pollutant-specific SCF for GHG, supported by the same reasons that the EPA had used to determine that it had a rational basis to regulate GHG. See 80 FR 64529 through 64531 (2015 EGU Rule); 81 FR 35840 through 35843 (2016 Oil & Gas Rule).

In the 2018 Proposal, in which the EPA proposed to revise the 2015 Rule, the EPA solicited comment on whether to adopt the interpretation that it was required to make an SCF for GHG from the EGU source category before it could promulgate an NSPS for CO 2 . Some commenters stated that the EPA must make pollutant-specific findings of endangerment and significant contribution in order to establish an NSPS for that pollutant. These commenters explained that in their view, CAA section 111(b)(1)(A) requires the EPA to make two specific findings: (1) The specific “air pollution” to be regulated is “reasonably . . . anticipated to endanger public health or welfare;” and (2) the specific source category “causes or contributes significantly to” that air pollution. Commenters asserted that CAA section 111(b)(1)(A) is not ambiguous in this respect, and, therefore, the Agency's interpretation in the 2015 Rule directly contradicts the plain language of that section.

Other commenters stated that the EPA's approach in the 2015 Rule, that it needs to determine only that it has a rational basis to regulate GHGs emitted by this source category as a prerequisite to regulation, is sound. They said in the context of CAA section 111, the SCF and endangerment finding are made with respect to the source category, and not as to specific pollutants. These commenters supported the conclusion in the 2015 Rule that the EPA possesses authority to regulate GHG emissions from fossil fuel-fired EGUs under CAA section 111 because there was no new evidence calling into question its determination that GHG air pollution may reasonably be anticipated to endanger public health and welfare and fossil fuel-fired EGUs have a high level of GHG emissions. The commenters stated that these considerations hew closely to the statutory factors that inform the decision whether to list a source category in the first place—namely, whether the category “causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare,” under CAA section 111(b)(1)(A). The commenters added that this approach, which closely parallels the listing analysis but does not require a formal endangerment finding or SCF, is legally sound. They also added that the statute is clear that a formal endangerment finding is required to initially list a sector to be regulated under CAA section 111; but it is also clear that such a finding is not required before regulating additional harmful pollutants from a previously-listed sector. 7

Similarly, in a 2019 proposal to revise the 2016 Oil & Gas Rule, the EPA solicited comment on whether to adopt the interpretation that it was required to make an SCF for GHG from the Oil and Gas source category before it could promulgate a CH 4 NSPS. Recently, the EPA completed the final rule to revise the 2016 Oil & Gas Rule, “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review: Final Rule,” 85 FR 57018 (September 14, 2020) (2020 Oil & Gas Rule). There, the EPA determined that a pollutant-specific SCF is required. In addition, the EPA further determined that the pollutant-specific SCF in the 2016 Oil & Gas Rule was invalid on grounds, in part, that the EPA had not established a threshold or criteria by which to determine whether an amount of emissions contributes significantly to dangerous air pollution, and to distinguish from an amount of emissions that simply contributes to dangerous air pollution. The EPA stated that section 111(b) of the CAA requires, or at least authorizes, a pollutant-specific SCF, and such an SCF must be based on defined criteria or thresholds. Id. at 57033-40.

CAA section 111 directs the EPA to regulate, through a multi-step process, air pollutants from categories of stationary sources. CAA section 111(b)(1)(A) requires the initial action, which is that the Administrator must “publish . . . a list of categories of stationary sources. He shall include a category of sources in such list if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Therefore, the first action that the EPA must take, specified in CAA section 111(b)(1)(A), is to list a source category for regulation on the basis of a determination that the category contributes significantly to dangerous air pollution. This provision makes clear that although Congress designed CAA section 111 to apply broadly to source categories of all types wherever located, Congress also imposed a constraint: The EPA is authorized to regulate only sources that it finds cause or contribute significantly to air pollution that the EPA finds to be dangerous. Because CAA section 111(b)(1)(A) refers to air pollution, the EPA's determination that a source category should be listed for regulation can be based on all pollutants emitted by the category ( i.e., collective contribution), or for a specific pollutant.

After the EPA lists a source category, CAA section 111(b)(1)(B) then directs the EPA to propose regulations “establishing Federal standards of performance” for new sources within the source category, to allow public comment, and to “promulgate . . . such standards with such modifications as he deems appropriate.” CAA section 111(a)(1) defines the term “standard of performance” as “a standard for emissions of air pollutants which [the Administrator is required to determine through a specified methodology].” These provisions read together make clear that the standards of performance that CAA section 111(b)(1)(A) directs the Administrator to promulgate must concern air pollutants emitted from the sources in the source category. However, industrial sources of the type subject to CAA section 111(b)(1)(A) invariably emit more than one air pollutant, and neither CAA section 111(b)(1)(B) nor CAA section 111(a)(1), by their terms, specifies for which of those air pollutants the EPA must promulgate standards of performance.

In the past, the EPA has interpreted CAA section 111(b)(1)(B) to authorize it to promulgate standards of performance for any air pollutant that the EPA identified in listing the source category and any additional air pollutant for which the EPA has identified a rational basis for regulation. 81 FR 35843 (2016 Oil & Gas Rule); 80 FR 64510 (2015 Rule). Inherent in this approach is the recognition that CAA section 111(b)(1)(A) does not, by its terms, necessarily require the EPA to promulgate standards of performance for all air pollutants emitting from the source category. The EPA could list a source category on grounds that it emits numerous air pollutants that, taken together, significantly contribute to air pollution that may reasonably be anticipated to endanger public health or welfare, and proceed to regulate each of those pollutants, without ever finding that each (or any) of those air pollutants by itself causes or contributes significantly to—or, in terms of the text of other provisions, causes or contributes to—air pollution that may reasonably be anticipated to endanger public health or welfare.

As described in the 2020 Oil and Gas Policy Rule, CAA section 111(b)(1)(A) does not provide or suggest any criteria to define the rational basis approach, the EPA has not articulated any criteria in its previous applications in the EGU CO 2 NSPS and the 2016 40 CFR part 60, subpart OOOOa rules, and in instances before those rules in which the EPA has relied on the “rational basis” approach, the EPA has done so to justify not setting a standard for a given pollutant, rather than to justify setting such a standard. 85 FR 77037, December 1, 2020. Thus, the rational basis test allows the EPA virtually unfettered discretion in determining which air pollutants to regulate. As a result, the rational basis standard creates the possibility that the EPA could seek to promulgate NSPS for pollutants that may be emitted in relatively minor amounts.

In contrast, CAA section 111(b)(1)(A) is clear that the EPA may list a source category for regulation only if the EPA determines that the source category “causes or contributes significantly” (emphasis added) to dangerous air pollution. As described in the 2020 Oil and Gas Policy Rule, in light of the stringency of this statutory requirement for listing a source category, it would be unreasonable to interpret CAA section 111(b)(1)(B) to allow the Agency to regulate air pollutants from the source category merely by making an administrative determination under the open-ended and undefined rational basis test. The EPA, therefore, determined it is logical to interpret CAA section 111(b)(1)(B) to require that the Agency apply the same degree of rigor in determining which air pollutants to regulate as it does in determining which source categories to list for regulation, and, therefore, must make a pollutant-specific SCF. Id.

Requiring a pollutant-specific SCF necessitates the establishment of a clearer framework for assessing which air pollutants merit regulatory attention that will require sources to bear control costs. The establishment of such a framework or criteria promotes regulatory certainty for stakeholders and consistency in the EPA's identification of which air pollutants to regulate and reduces the risk that air pollutants that do not merit regulation will nevertheless become subject to regulation due to an unduly vague standard.

As previously described, CAA section 111(b)(1)(B) requires the EPA to establish an NSPS for a source category listed under CAA section 111(b)(1)(A). For a source category previously listed under CAA section 111(b)(1)(A), in order to subsequently promulgate an NSPS for a pollutant that the EPA did not evaluate the source category for at the time of listing, the EPA must make a pollutant-specific SCF for the reasons described above. As part of making an SCF, the EPA concluded in the 2020 Oil and Gas Policy Rule that, “a standard or an established set of a criteria, or perhaps both, are necessary to identify what is significant and what is not.” 85 FR 57039. The EPA did not finalize or take a position in the 2020 Oil and Gas Policy Rule on potential criteria, stating that it was deferring the identification of such criteria to a future rulemaking. Id. CAA section 111(b) itself does not specify what the criteria for a pollutant-specific SCF.

The “contributes significantly” provision in CAA section 111(b)(1)(A) is ambiguous as to what level of contribution is considered to be significant. See 84 FR 50267 and 50268, September 24, 2019 (citing EPA v. EME Homer City Generation, L.P., 572 U.S. 489 (2014) (holding that a similar provision in CAA section 110(a)(2)(D)(i), often termed the “good neighbor” provision, is ambiguous)). Accordingly, the EPA has authority to interpret that provision. Id. at 50268. As noted above, the EPA reads CAA section 111(b)(1)(B) in light of CAA sections 111(b)(1)(A) and 111(a)(1) to incorporate the “contributes significantly” standard in connection with promulgating NSPS for particular air pollutants. The EPA has concluded that to allow the EPA to distinguish between a contribution and a significant contribution to dangerous pollution, some type of (reasonably explained and intelligible) standard and/or established set of criteria that can be consistently applied is necessary.

A supporting basis for this conclusion can be found by looking at the EPA's interpretation of the similarly worded “contribute significantly” provisions of CAA section 189(e), concerning major stationary sources of particulate matter with a diameter of 10 micrometers or less (PM 10 ). This provision requires that the control requirements applicable to major stationary sources of PM 10 also apply to major stationary sources of PM 10 precursors “except where the Administrator determines that such sources [of precursors] do not contribute significantly to PM 10 levels which exceed the standard in the area.” As the EPA noted in the 2019 Oil and Gas Policy Rule proposal, in CAA section 189(e), Congress intended that, in order to be subject to regulation, the emissions must have a greater impact than a simple contribution not characterized as a significant contribution. However, Congress did not quantify how much greater. Therefore, the EPA developed criteria for identifying whether the impact of a particular precursor would “contribute significantly” to a NAAQS exceedance. 84 FR 50268. These criteria included numerical thresholds. Id. The EPA concluded similarly that, under CAA section 111(b), a standard or an established set of a criteria, or perhaps both, are necessary to identify what is significant and what is not.

These criteria help ensure that the EPA's decision-making is well-reasoned and consistent. The EPA considers it particularly important to develop a set of criteria and/or a standard in order to determine when a significant contribution occurs, in order, as noted above, to distinguish it from a simple contribution. A contribution can be greater or lesser and remain a contribution, but a significant contribution determination necessarily involves a judgment about the degree of the contribution that rises to the level of significance. For such a judgment to be meaningful (and, of critical importance, to be understood by regulated parties and by the public), the Agency must identify the criteria it will use to determine significance.

Comment: Commenters stated that the EPA must make the specific pollutant findings of endangerment and significant contribution that are required in listing a source category in order to establish a NSPS for that pollutant. Commenters stated they are not arguing that the EPA could not or should not make these findings. Rather, that the Clean Air Act (CAA) requires the EPA to make two specific findings: (i) The specific “air pollution” to be regulated is “reasonably . . . anticipated to endanger public health or welfare”; and (ii) the specific source category “causes or contributes significantly to” that endangering air pollution. CAA section 111(b)(1)(A). The commenters said section 111(b)(1)A) is not ambiguous at all in this respect, and therefore the Agency's interpretation in the 2015 Rule directly contradicts the plain language of this section. Additionally, they said that in the 2009 Endangerment Finding, the EPA specifically defined air pollution, as referred to in section 202(a) of the CAA, to be the mix of six long-lived and directly emitted GHGs: CO 2 , CH 4 , N 2 O, HFCs, PFCs, and SF 6 (74 FR 66497, December 15, 2009). They commented that the EPA did not make a separate finding then, or now, that CO 2 alone is a danger to the public health or welfare and the EPA has argued that because CO 2 is the “dominant anthropogenic GHG,” it is not required to “make an endangerment finding with respect to a particular pollutant.” ( Id ). They argued that this view does not satisfy the statutory standard and said the GHG endangerment determination in section 111(b)(1)(A) is fundamentally different than that in section 202(a) and other CAA sections, in part because it: (i) Is source-category based; and (ii) requires a finding of significance.

These commenters stated that in the 2015 Rule, the EPA made three arguments as to why it believed it had met its statutory obligations. The commenters stated that none of these arguments are correct as a legal matter for the following primary reasons: (1) The EPA was wrong in claiming that new CO 2 -specific findings were unnecessary, as the 2015 Rule was for a new category of electric utility generating unit (EGUs) emitting CO 2 —a specific pollutant for which an endangerment finding had not been made. EPA's prior listings of “steam generators” and “stationary gas turbines” covered only emissions of NO X , SO 2 , and particulate matter. Because EPA's findings in earlier listings addressed different pollutants, those listings triggered and authorized only regulation of NO X , SO 2 , and particulate matter. Cf. Nat'l Asphalt Pavement Ass'n v. Train, 539 F.2d 775 (D.C. Cir. 1976). EPA has asserted the authority to regulate under section 111 any pollutant for which EPA believes it has a “rational basis” to regulate (see 83 FR 65432; 80 FR 64530). But this “rational basis” standard is not the one authorized by section 111; the endangerment and significant contribution standard governs section 111 regulation. EPA cannot rewrite the statute to circumvent the endangerment and significant contribution standard that Congress prescribed for section 111 regulation.; (2) the EPA cannot rely on its 2009 finding regarding GHG emissions from automobiles which determined that “six well-mixed GHGs” in the “aggregate” endanger public health or welfare, as this “combined mix” is different air pollutant than the single pollutant controlled here (CO 2 alone). EPA has never found that CO 2 alone endangers public health or welfare, much less that CO 2 from fossil fuel-fired steam generating units (as opposed to motor vehicles) has that effect; and (3) the EPA's attempt to rely on “information and conclusions” contained in the 2015 Rule does not satisfy the CAA. Simply identifying the evidence that might support a finding is not the same as completing the administrative process of distilling and analyzing that data in the context of the Agency's statutory obligations and its failure to make the requisite findings of endangerment and significant contribution in the 2015 Rule violated the CAA. They said the CAA grants the EPA narrowly bounded authority to regulate stationary sources that emit pollutants that may reasonably be anticipated to endanger public health or welfare for those pollutants which led to the endangerment finding and to which the source category significantly contributes. The CAA does not grant the Agency unlimited authority to regulate any pollutant emitted by that source. Accordingly, before the EPA finalizes the 2018 Proposal, it must make a specific and supportable finding that CO 2 emissions from fossil fuel-fired EGUs pose a danger to public health and welfare. They said the EPA should reject its ill-founded “rational basis test” for imposing performance standards without endangerment and contribution findings. The Agency's rational basis test is not in the CAA. They argued that section 111 never uses the term and the case law on which the EPA relied for this test addresses agency authority under a different statute, the Administrative Procedure Act (APA). The APA does not define the scope of the EPA's authority to undertake this rulemaking.

Commenters added that as a textual matter, the endangerment requirement modifies, and relates back to, “air pollution,” not “sources”: The provision requires the EPA to determine whether a source causes or contributes significantly to “air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 United States Code (U.S.C.) section 7411(b)(1)(A). Only after the EPA determines that a pollutant poses a threat to “public health or welfare” must it inquire whether the particular category of sources “contributes significantly” to that pollution. Id. The idea that an endangerment finding is “one and done” on a source level also cannot be squared with the surrounding statutory requirements. Section 111(b)(1)(B) provides that the EPA may issue performance standards after a source category is listed pursuant to section 111(b)(1)(A). Id. section 7411(b)(1)(B). Yet by definition, a “standard of performance” is tied to specific pollutants for which an endangerment finding has been made. Id. section 7411 (a)(1) (defining a “standard of performance” as “a standard for emissions of air pollutants). Commenters said that as such, the approach in the 2015 Rule would give the EPA unfettered authority to regulate any air pollutant emitted by a source regardless of whether it endangers health or welfare and the 2015 Rule's approach of mixing and matching elements of endangerment findings would allow the EPA to impose stringent regulations on sources that do not “contribute significantly” to emissions of a pollutant. In summary, the commenters argued that if the EPA “retain[s]” the “statutory interpretation” of section 111 as set out in the 2015 Rule, 83 FR 65432 n. 25, it will once again be setting standards beyond the scope of its authority and it may be that the EPA can make the findings section 111(b)(1)(A) requires for CO 2 emissions from fossil-fuel-fired electricity generating units, but unless and until the EPA makes those determinations under the proper legal standard, the Proposed Rule will rest on a flawed foundation.

Commenters stated that the previous endangerment findings the EPA listed in the 2015 Rule did not relate to “fossil fuel-fired electricity generating units.” (80 FR 64527 nn.86 & 87). Rather, one related to “steam generators,” (36 FR 5931, March 31, 1971,—cited at 80 FR 64527 n.86), and the other to “stationary gas turbines,” (42 FR 53657. October 3, 1977,—cited at 80 FR 64527 n.87). The commenters stated that this failing should prevent the EPA's ability to move forward with proposed regulation because the Agency has not issued the required endangerment finding for the specific source category, it becomes irrelevant whether it may rely on that (nonexistent) finding to justify setting standards of performance for different emissions from sources in the category.

Commenters stated that in the 2016 subpart OOOOa rulemaking, the EPA established NSPS for CH 4 without making an endangerment finding for CH 4 emissions from oil and gas sources. Commenters and other industry groups filed comments pointing out the EPA's omission in failing to make a section 111(b) endangerment finding for the new pollutant subject to regulation under NSPS. By imposing NSPS requirements for a new pollutant without first establishing that that pollutant “may reasonably be anticipated to endanger public health or welfare” (i.e., making an endangerment finding), commenters urged the EPA to reject and withdraw the interpretation that the EPA may skip the endangerment finding step in this context. The commenters further urged the EPA to clarify that a statutory prerequisite for regulation of a new pollutant under the NSPS program is an endangerment finding for that particular pollutant. Finally, and as a separate matter, the commenters urged the EPA to revisit the legal underpinnings for the subpart OOOOa standards as the commenters asserted the EPA did not follow the statutory prerequisites for the adoption of such standards. According to the commenters, those standards are illegal as being outside of the agency's authority, and as such should now be withdrawn.

Other commenters stated that the EPA's previous approach in the 2015 Rule to determining that it has a rational basis to regulate GHGs emitted by this source category is sound. The Agency has correctly not reopened this approach, nor has it proposed any alternatives to it. They said in the context of section 111, the endangerment finding is made with respect to the source category, and not as to specific pollutants (80 FR 64530). It would be unlawful for the Agency to finalize any alternative approach. In 2015, the EPA concluded that it possesses authority to regulate GHG emissions from fossil fuel-fired EGUs under section 111 for two reasons: (1) There was no new evidence calling into question its determination that “GHG air pollution may reasonably be anticipated to endanger public health and welfare”; and (2) fossil fuel-fired EGUs have a “high level of GHG emissions.” These considerations hew closely to the statutory factors that inform the decision whether to list a source category in the first place—namely, whether the category “causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” In fact, in 2015 the Agency confirmed that, even if it were required to issue endangerment and significant contribution findings under this provision in order to regulate GHGs emitted by EGUs, the same information that underpinned its rational basis conclusion would support such findings (80 FR 64530). This approach, which closely parallels the listing analysis but does not require formal endangerment or cause-or-contribute findings, is legally sound. The statute is clear that a formal endangerment finding is required to initially list a sector to be regulated under section 111—and is also clear that such a finding is not required before regulating additional harmful pollutants from a previously-listed sector. Because Congress did not provide specific criteria for regulating additional pollutants from a source category that is already listed under section 111, it is reasonable to look to the statutory factors that trigger regulation initially when deciding whether to require reductions of other pollutants. They said the statutory factors for listing a source category—the endangerment and cause-or-contribute findings—provide a floor for when EPA must regulate an additional pollutant from a listed source category under the rational basis inquiry. It would be irrational to fail to regulate an additional pollutant simply because a source category was already listed, if the same evidence regarding that pollutant would have triggered a formal listing of that source category had the source category not previously been listed. Thus, it would be arbitrary for the agency to decline to regulate a pollutant on the basis of considerations wholly unrelated to the harms that pollutant poses or the quantities in which it is emitted from a particular source category.

Other commenters also stated that any effort to reverse the EPA's decision to regulate CO 2 from power plants would require, among other things, that the EPA fully contend with each step of the statutory and legal analysis of section 111 it undertook in the 2015 Rule, and explain why each of them has become invalid. They said promulgating a final rule contrary to the 2015 Rule without the requisite record-based, factual analysis and reasoned explanation would yield “an unexplained inconsistency in agency policy” that is arbitrary, capricious, and unlawful. Commenters stated that that while the most comprehensive approach to sensible GHG regulation remains through congressional action, and while the CAA is far from the perfect tool for regulating GHGs, it is preferable to protracted legal battles and to the potential patchwork of judicial and regulatory outcomes. As a result, the Agency should retain the existing endangerment finding. They said that if the EPA fails to regulate GHG emissions from new coal-fired EGUs it would be wholly unreasonable and contrary to the endangerment finding.

Response: The EPA addressed the substance of these comments in a lengthy discussion in “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review: Final Rule,” 85 FR 57018, 57033-40, 57052-58 (September 14, 2020). That discussion is incorporated by reference here. That discussion further elaborates the rationale for EPA's determination that a pollutant-specific significant contribution determination is appropriate, and EPA's related determinations. That discussion also responds in full to the comments on the present rule.

It should be noted that in the 2015 Rule, EPA combined the steam generating source category and combustion turbine source category into a single source category for purposes of GHG emission regulation, 80 FR 64510, 64521-32 (October 23, 2015), and determined, in the alternative, that GHG emissions from the combined source category contribute significantly to dangerous air pollution. Id. at 64531. In today's rulemaking, the EPA is not revising the source category determination in the 2015 Rule and, by the same token, the significant contribution finding that EPA is making in the present rulemaking for GHG emissions concerns emissions from the same, combined source category.

Comment: Commenters stated that if the Endangerment Finding is overturned, the electric power sector could be broadly exposed to tort and nuisance suits brought by citizens and states—as was the case prior to the EPA regulation of GHGs ( e.g., American Electric Power Co. v. Connecticut, 564 U.S. 610 (2011)). Accordingly, these efforts would create more uncertainty about the future of GHG regulations applicable to new EGUs—uncertainty that likely would not be resolved for years and could undermine any potential for generation owners and operators to consider new coal-based generation as a viable option. They said as a result, the Agency should retain the existing endangerment finding.

Response: The Agency has not proposed to overturn the existing Endangerment Finding and is not overturning it in this final rule.

Comment: Commenters stated that to the extent that emissions of CO 2 from new, modified, or reconstructed electric utility generating units are to be subjected by the EPA to regulation under the CAA, the proper path would be to regulate such emissions as part of a broader effort to regulate CO 2 emissions from “numerous or diverse” sources under sections 108-110 of the CAA. Alternatively, if the EPA is adamant in engaging in regulating such emissions under section 111(b), at the very least the EPA must complete a specific endangerment finding for CO 2 emissions from such facilities under the applicable criteria set forth in section 111(b), which the EPA has failed to do to date. Either way, commenters stated that the proposed rule amendment is beyond the legal authority of the CAA.

Response: EPA is making a pollutant-specific significant contribution finding in this action.

Comment: Commenters quoted the NSPS proposal as stating that “the Agency will consider comments on the correctness of the EPA's interpretations and determinations, and whether there are alternative interpretations that may be permissible, either as a general matter or specifically as applied to GHG emissions” (83 FR 65242, 65432 n.25). Commenters then stated that they filed a petition in 2017 contending that the EPA should commence a new rulemaking on the subject of the Agency's 2009 endangerment finding. They provided the following arguments of the 2017 petition: (1) There had been no statistically significant atmospheric warming despite a continued increase in atmospheric CO 2 levels; (2) changes in global temperatures in recent decades were far from unusual; (3) new balloon and satellite data showed that the atmosphere was far less sensitive to CO 2 forcing than the climate models had predicted; and (4) there was mounting evidence that the EPA's GHG rules would have no discernible climate impact. For these reasons, they said there was a need to reexamine both the three lines of evidence for the EPA's endangerment finding as well as its underlying rationale. Regarding the proposal, the commenters stated that in addition to their still pending petition, they are providing new evidence for why the Agency should proceed with this petition and with similar petitions pending before it. They submitted references (titles, weblinks, and synopses) to nine research papers published since filing their initial petition which they argue add additional support. They stated that given the points and data outlined in this newer research, in addition to those set forth in their 2017 petition, the EPA should commence a new proceeding to reexamine its 2009 endangerment finding.

Response: The Agency is retaining the existing endangerment finding. The submitted material is out of scope for this rulemaking. With regards to the claim that EPA was soliciting comments on this subject, the footnote quoted by the commenters goes on to specifically outline examples of the kind of comments referred to: This further elaboration made clear that EPA was not soliciting comments on the science of climate change but rather regarding interpretation of statutory language and legal opinion as to whether the Agency would need to make an endangerment finding for previously listed source categories (“For example, the Agency will consider comments on the issue of whether it is correct to interpret the “endangerment finding” as a finding that is only made once for each source category at the time that the EPA lists the source category or whether the EPA must make a new endangerment finding each time the Agency regulates an additional pollutant by an already-listed source category. Further, the EPA will consider comments on the issue of whether GHG emissions are different in salient respects from traditional emissions such that it would be appropriate to conduct a new “endangerment finding” with respect to GHG emissions from a previously listed source category. In addition, the EPA solicits comment on whether the Agency does have a rational basis for regulating CO 2 emissions from new coal-fired electric utility steam generating units and whether it would have a rational basis for declining to do so at this time” 83 FR 65242, 65432 n.25).

Comment: Commenters also said that the Agency suggestion in footnote 25 of the Proposal is unreasonable in that the Agency seems to presume that it might not be appropriate to regulate GHGs from new coal-fired power plants because the Agency projects that few such plants will be built in coming years. They said this approach asks the wrong question. The question should be whether there is a rational basis to regulate GHGs from power plants—not just new coal-fired plants. This is because, once new sources are regulated under section 111(b), the obligation to regulate existing sources under section 111(d) is triggered. If new sources in a source category could not be regulated under section 111(b), no sources in the category could be regulated. Commenters further stated that the EPA cannot reverse its position merely by asking for comments on whether it should adopt a new position diametrically opposed to both current law and the position it maintains in the Proposed Rule.

Commenters stated that using footnote 25 as a means of requesting public comment is misleading and violates administrative procedures. They said that it appears that the EPA is seeking rationale or justification to under the legal basis for this rule while claiming that is retaining its legal basis. The EPA cannot have it both ways: either EPA is using its legal basis, or it is looking for alternatives. If it is looking for alternatives, then EPA has not met its responsibilities under the Administrative Procedures Act for fair notice of the nature and scope of this rulemaking.

Commenters stated that in the endangerment finding footnote of the 2018 Proposal (83 FR 65432 n 25), the EPA suggests that it may consider whether it would have a rational basis to decline to regulate given that “no more than a few new coal-fired EGUs can be expected to be built.” The commenters said this suggestion is not legally or factually sound and does not provides a valid reason not to regulate GHGs from fossil fuel-fired EGUs under section 111. They said the statute is unambiguous: The EPA must consider pollution from both new and existing sources when deciding whether to regulate a pollutant within a source category. To the extent that the statute contains any ambiguity, a decision not to regulate based solely on projected levels of emissions from new sources would be disallowed as an impermissible construction. They argued that section 111(b) unambiguously expresses Congress's concern with pollution emitted from a source category as a whole, not just new sources and 111(b) directs the Administrator to base decisions about whether to list a source category on an analysis of the entire category, including existing sources. Section 111(b)(1)(A) does not distinguish between “new” and “existing” sources but rather conveys Congress's directive to address pollution across the source category.

The commenters also stated that Footnote 25 of the proposal raises the prospect that, on the question of regulating a pollutant from a listed source category, Congress inexplicably intended for the EPA to consider pollution from new sources only, irrespective of the harm caused by pollution from existing sources—and even though Congress directed the EPA to consider the air pollution from the sector as a whole, that plain language should be ignored. They said the Agency presents no support for this theory, which is contrary to both the clear terms and the evident objective of the statute. The commenters argued that Footnote 25's suggested interpretation disregards statutory language in other ways as well. For example, section 111(b)(1) provides that the Administrator “shall include a category of sources in such list if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” (42 U.S.C. 7411(b)(1)(A)). Yet as of the date of when the EPA determines to list a source category, there are no “new” sources in existence. Section 111(a)(2) provides: “The term “new source” means any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source.” ( Id. section 7411(a)(2)). They said under section 111, listing precedes promulgation of standards. So, when the EPA decides whether to list a category, by definition it has not yet proposed section 111 standards for that category and because it has not proposed such standards, no sources qualify as “new” sources under section 111(a)(2). Basing a decision not to list (and therefore not to regulate) a source category solely on the absence of emissions from as yet nonexistent “new” sources—while ignoring sources that already exist and are emitting pollutants that threaten harm to public health and welfare—is not a tenable reading of the statutory language.

Response: In this rule, EPA takes the position that GHG emissions from new and existing EGUs contribute significantly to dangerous air pollution. While EPA proposed to retain the position that it stated in the 2015 Rule that a pollutant-specific significant contribution finding is not required, it solicited comment on whether such a finding is required, and that comment solicitation provided adequate notice.

Comment: Commenters stated that though the EPA notes that it is not proposing to revisit its 2009 endangerment finding for greenhouse gases, the proposed NSPS revisions request comment on whether recent and projected power sector trends present a rational basis to decline to regulate CO 2 emissions from the power sector. The suggested comment area, presented in footnote 25, cites power sector trend projections from the Energy Information Administration's (EIA's) 2018 Annual Energy Outlook and findings from the EPA's proposed Affordable Clean Energy (ACE) rule as potential support for this position. Commenters also stated that the EIA's 2018 Annual Energy Outlook does not indicate that power sector CO 2 emissions will decline significantly in the future. Instead, the estimates referenced by the EPA in the proposal project that CO 2 emissions from the power sector will remain the single largest sector-based source of CO 2 emissions over the long term, totaling 1.72 billion tons in 2020, 1.71 billion tons in 2030, and 1.78 billion tons in 2050. Commenters said though the EPA found that the transportation sector overtook the power sector as the largest sector-based source of GHG emissions in 2017, the 2018 Annual Energy Outlook projects that power sector emissions will regain the top ranking in 2026 and maintain a lead over the transportation sector by growing modestly through 2050. Commenters stated while newer EIA projections that were unavailable at the time of the EPA's proposal indicate slightly lower power sector CO 2 emissions, EIA still projects significant and sustained power sector GHG emissions through 2050, not a steady decline. Commenters said a report from the Rhodium Group based on preliminary EIA data for 2018 and released a few weeks after the EPA's proposal estimates that power sector-related GHG emissions increased 3.4 percent in 2018, breaking a three-year trend of decreases. Commenters added still more recent EPA data reveals the same pattern. Commenters stated preliminary 2018 emissions data compiled by EPA's Clean Air Markets Division (CAMD), also released after the proposed NSPS revisions were published in the Federal Register , show power sector CO 2 emissions rising from 1.92 billion tons in 2017 to 1.93 billion tons in 2018. Commenters said prior to the 2018 release, EPA's CAMD data had shown flat or declining CO 2 emissions for every year since 2013.

Commenters stated it would be unlawful and arbitrary for the EPA to use declining power sector emissions as reason for not regulating. They argued that even if power sector emissions are declining—which is not at all clear—they are far higher than levels necessary to keep CO 2 concentrations from rising further, let alone to achieve the necessary net-zero balance. CO 2 pollution accumulates in the atmosphere, where it lingers for centuries, such that a year-to-year decline in emissions does not prevent atmospheric concentrations from continuing to rise, exacerbating the impacts of climate change. “[T]he urgency of reducing emissions now,” (80 FR 64520) which the EPA acknowledged in the 2015 Rule, has only increased in recent years. Commenters said reliance on recent emission trends is even more unfounded because U.S. climate pollution significantly increased in 2018, including a 1.9 percent increase in power sector carbon pollution. Even before the 2018 data were available, U.S. Energy Information Administration (EIA) had recognized long-term market and economic uncertainty, which could potentially drive some shift back to coal generation. EIA projections now show that the general trend toward declining carbon pollution from the power sector is likely to flatten out in the early 2020s. Commenters stated standards that even if pollution levels were declining more steadily, that would not authorize the EPA to ignore its obligation to protect the public from what will continue to be a major threat to public health and the environment. The CAA is not concerned merely with whether pollution levels are currently below their historic peak. To the contrary, the Agency must ensure that pollution is controlled to the degree the statute requires— i.e., in accordance with a standard of performance that reflects the best system of emission reduction (BSER) (42 U.S.C. 7411(a)(1)).

The commenters also said that there may be other reasons why a developer would be willing to pay a premium to build a new coal-fired plant that the models do not consider (80 FR 64559-64562). Thus, it is unreasonable not to establish standards of performance on the assumption that coal-fired power plants will never again be built (or modified). They said that the Agency does not even consider the fact that the source category includes not only new sources but also existing sources that undergo certain “modifications,” and that such modified sources have significant CO 2 emissions.

Commenters said that by asking whether the Agency has a rational basis for regulating CO 2 emissions from new coal-fired EGUs “in light of” the projections cited in footnote 25, the EPA is setting itself up to conduct continual market evaluations for all the EPA regulations for which regulation is premised on a similar type of prerequisite determination. An interpretation of section 111 that leads to that result is unreasonable and impractical. They said that there is no indication in the CAA that Congress intended the Agency to undertake a continual market assessment of this nature.

Commenters stated that the endangerment finding footnote of the 2018 Proposal (83 FR 65432 footnote 25) contains a fatal factual deficiency in that it suggests that the rational basis finding might be reversed because “no more than a few new coal-fired EGUs can be expected to be built, which raises questions about whether new coal-fired EGUs contribute significantly to atmospheric CO 2 levels.” The commenters said that not only does this suggestion disregard the EPA's 2015 acknowledgment that “the CO 2 emissions from even a single new coal-fired power plant may amount to millions of tons each year,” but it entirely ignores natural gas-fired power plants, which are also included in the source category. In making the 2015 determination, the EPA specifically observed that “the CO 2 emissions from even a single natural gas combined cycle (NGCC) unit may amount to one million or more tons per year.” They said natural gas-fired power plants continue to be built at a steady clip as evidenced by the first ten months of 2018 in which 14.9 gigawatts (GW) of natural gas-fired EGU capacity was added to the grid. New gas plants must be accounted for and by failing to do so, the Agency would forfeit any “rational connection between the facts found and the choice made,” and would fail to provide “a reasoned explanation . . . for disregarding facts and circumstances that underlay . . . the prior policy.” Each of those flaws would render the decision arbitrary and capricious. Commenters said that even if the EPA legally could regulate CO 2 emissions from new natural gas plants without regulating CO 2 emissions from new coal-fired power plants, the EPA should not do so because such partial regulation would provide an inadvertent subsidy to new coal-fired plants.

Response: In this rule, the EPA is determining that GHG emissions from EGUs contribute significantly to dangerous air pollution and is promulgating revised standards of performance for EGU GHG emissions. To the extent it is useful or necessary in this rulemaking for the EPA to further address whether long-term emission trends, or related considerations, are relevant for a significant contribution determination, the EPA does so elsewhere in this document.

In this section, the EPA describes criteria for determining when GHG emissions from a source category contribute significantly to dangerous air pollution in response to comments submitted on this rule. The EPA indicated in the 2020 Oil and Gas Policy Rule that it would finalize these criteria in a separate rulemaking. 85 FR 57039.

The criteria discussed herein only apply to GHG in the context of the EPA's SCF under CAA section 111(b)(1)(B). This action does not discuss criteria for pollutants other than GHGs. Under this framework, the EPA is determining that the quantity of GHG emissions from a source category is the primary criterion in determining significance for purposes of regulation of GHGs from a source category under CAA section 111(b). Gross GHG emissions are important for this set of pollutants because GHGs are global long-lived pollutants and do not have the local, near-term ramifications found with other pollutants ( e.g., criteria pollutants). Unlike other pollutants where both the location and quantity of pollution emissions are factors in determining the impact of the emissions, GHGs' impact ( i.e., climate change) is based on a cumulative global loading and the location of emissions is not nearly as important a factor as it is for assessing local, near-term impacts associated with criteria pollutants. It is for this reason that, when the EPA is assessing GHGs impact in contributing significantly to air pollution which may reasonably be anticipated to endanger public health and welfare, the quantity of emissions should be the primary criterion that the EPA should evaluate.

The GHG emissions are the best, but not necessarily only, indicator of significance because the quantity of emissions emitted from a source category correlates directly with impacts. Calculations using the Model for the Assessment of Greenhouse Gas Induced Climate Change (MAGICC model) to investigate the impact of including or eliminating a single sector's emissions from 2020 through 2100 have shown that the magnitude of emissions from that single sector is very close to being linearly related to the projected temperature change in 2100 resulting from eliminating that sector's emissions. This is consistent with the results of a number of peer reviewed publications in the past decade: e.g., Matthews et al. found that the temperature change is roughly proportional to the total quantity of CO 2 emissions over a wide range of potential scenarios. 8

A threshold of GHG emissions from the source category compared to the rest of the U.S. GHG emissions ( i.e., the percent of total U.S. GHG emissions) can be used to demonstrate significance. Emissions can be large enough from a source category that the evaluation of GHG emissions in isolation is sufficient for making a finding of significance for the source category. Conversely, the EPA believes that some source categories are sufficiently small in GHG emissions that a finding of insignificance can be made by only evaluating the GHG emissions from the source category. For many source categories, the evaluation of GHG emissions alone will be sufficient for determining whether there is significant contribution.

It should be noted that under section 111(b)(1)(A), the EPA is required to make a significance finding on a category-by-category basis. That provision requires the Administrator to list “ a category of sources” for regulation if he determines that “ it causes or contributes significantly to” dangerous air pollution. Section 111(b)(1)(A) (emphasis. added). As a result, the text of 111(b)(1)(A) compels or is at least best read to require the EPA to make the significance determination for a particular source category on the basis of the emissions (or other relevant attributes) of that particular source category. In contrast, the EPA may not combine source categories that individually would not meet the significance criteria and determine that, when combined, the source categories do meet the significance criteria. 9

Under this framework, the EPA is determining a threshold for the evaluation of significance of GHG emissions from source categories. The use of a clear threshold provides certainty regarding the EPA's process and allows the regulated entities to have insight into how the EPA will make determinations on significance for their respective source category. The threshold introduced in this rulemaking is a reflection of the EPA's best understanding of the landscape of the U.S. GHG emissions from stationary sources. The EPA is introducing a methodology to evaluate significance with respect to the U.S. GHG emissions that can be applied for any source category, and that application of the methodology is only being directly applied to the EGU source category in this action as further introduction of this approach. It is important to note that a significance determination for the U.S. GHG emissions will be needed before the EPA may regulate any other source category under CAA section 111(b) for GHG emissions.

As Table 1, below, makes clear, there are at least two natural breakpoints between groups of emitting source categories. The first natural breakpoint is between EGUs and all other source categories. EGUs stand out as by far the largest stationary source of the U.S. GHG emissions, emitting over 25 percent of all the U.S. GHG emissions. Based on available data, the next largest source category, Oil and Natural Gas, emits just under 3 percent of U.S. GHG emissions. Two other source categories, Boilers and Petroleum Refineries, also fall between 2.5 percent and 3.0 percent of U.S. emissions. Between 1.5 percent and 2.5 percent of U.S. GHG emissions there is another natural breakpoint and all of the remaining source categories fall below 1.5 percent of the U.S. GHG emissions. Note that source category emissions in Table 1 are an estimate of what the Agency currently understands about the emissions from CAA section 111 source categories. If the EPA were to do a rulemaking and a significance determination for a specific source category, the EPA would do a thorough analysis of the available and attributable GHG emissions data to ensure appropriate determinations and assessments.

The EPA is introducing a threshold of 3 percent of U.S. GHG emissions to evaluate a source category's emissions to determine significance for purposes of CAA section 111(b). The EPA is also determining that source categories that are less than this value ( i.e., 3 percent or less) are necessarily insignificant without consideration of any other factors. The reasoning for choosing this threshold is presented later in this document.

The EPA acknowledges that, when interpreting other CAA provisions, the EPA has used different thresholds to define “significant contribution,” but it is appropriate to select a threshold based on the nature of the problem being addressed. For example, to address the problem of interstate transport under CAA section 111(a)(2)(D)(i)(I)—which concerns criteria pollutants, i.e., pollutants that affect the NAAQS—the EPA selected a threshold of 1 percent based on analysis of air quality modeling specific to the criteria pollutant at issue. 76 FR 48208, 48236 (August 8, 2011) (Cross-State Air Pollution Rule (CSAPR)). For criteria pollutants, both the location and quantity of emissions are factors in determining their impact. In contrast, the impact of GHGs ( e.g., climate change) is based on a cumulative global loading, and the location of emissions is not nearly as important a factor as it is for assessing local impacts associated with criteria pollutants. Because GHGs do not have the local near-term impacts that criteria pollutants tend to have, a larger value is appropriate to use in determining significance as it still addresses the health and welfare impacts of GHG emissions without specifically evaluating local near-term impacts, which is analytically unreasonable to do given the global nature of GHGs. While the 3 percent threshold will be applied against domestic emissions, source categories exceeding that threshold represent a much smaller fraction of global GHG emissions. 10

By determining a threshold, the EPA is setting a clear indication of how source categories will be evaluated for significance based on GHG emissions. For those source categories that are below the 3 percent threshold, the EPA would make a determination (through future rulemaking) of insignificance. This means that if a source category collectively emits 3 percent or less of the total U.S. GHG emissions, it will be considered to be insignificant. For those source categories that are above the threshold, a more detailed evaluation of other criteria can be used to make a determination of significance. This is described in section IV.D below. It is important for the EPA to make this clear indication as it allows source categories and the general public a level of transparency as to how the EPA will be evaluating source categories for significance. The threshold in this action will provide a degree of certainty regarding whether a source category will later be found significant or insignificant based on the threshold. 11

After evaluating the two natural break points in GHG emissions, the EPA determined that 3 percent of the U.S. GHG emissions was the best threshold for determining significance. As noted above, there is currently only one source category above this threshold, EGUs, and the evaluation of significance for the EGU source category has been a topic explored and discussed by the Agency in great detail over the course of the last decade. 12 Just below the 3 percent threshold are three source categories: Oil and Natural Gas, Petroleum Refineries, and Industrial-Commercial-Institutional Steam Generating Units ( i.e., “Boilers”). There are no other source categories with GHG emissions between 1.5 percent and the 3 percent. By using a threshold of 3 percent of the U.S. GHG emissions ( i.e., only including EGUs above the threshold), the EPA will effectively be covering 43 percent of the U.S. stationary source GHG emissions via regulation of a single source category. If the EPA were to instead set a threshold between the other identified breakpoint—between 1.5 percent and 2.5 percent of U.S. GHG emissions—the EPA observes that this threshold would lead to a relatively modest increase in the stationary source U.S. GHG emissions that would be regulated of an additional 13 percent (for a total of 56 percent of U.S. stationary source GHG emissions). 13 In addition, regulation of the additional source categories that comprise 13 percent of U.S. emissions would eliminate only a portion of those emissions. With an even lower threshold of significance set at 1.0 percent of U.S. GHG emissions, there would be significantly more source categories covered (about 10 based on the EPA estimates) above the threshold but likely would include an even more modest increase in stationary source GHGs that would cover 60 percent of U.S. stationary source GHGs. Under this framework, the EPA is basing a decision to apply a threshold of 3 percent on the relative contribution of regulating source categories that contribute significantly to the overall impact of climate change. To that end, the temperature impact associated with the hypothetical elimination of all source categories above a 3 percent threshold corresponds to a hypothetical global mean temperature reduction of 0.049 degrees Celsius (°C) (approximately 0.1 degree Fahrenheit, the calculated effect in 2100 of removing 1,780 million metric tons (MMT) of CO 2 emissions each year from 2020 through 2100) from source categories above that threshold ( i.e., just EGUs). Eliminating the next largest source category ( i.e., Oil and Gas Processing and Production) would only generate an additional hypothetical global mean temperature reduction of less than 0.01°C and even smaller source categories correspondingly contribute less to global temperature. The EPA is making the decision that the threshold for a significance determination for U.S. GHG emissions to be in the form of a percentage. A percentage is a metric that measures the relative contribution to the whole and, in this action, the EPA believes that it is appropriate to measure and evaluate significant contribution of U.S. GHG emissions as a relative contribution to the whole of GHG emissions in the U.S. The EPA is determining that a threshold in the form of a percentage is both reasonable and more appropriate for making the significance determination in this rule based on a percent's relative nature. This is important because the trajectory of U.S. GHG emissions is trending down. As overall emissions decrease over the course of time, a source category's relative contribution to GHGs may not have changed or may have even increased based on GHG reductions in other source categories and sectors. A relative percentage threshold recognizes that the EPA may later determine a source category is significant based on these circumstances, because a source category's emissions may eventually exceed the threshold even though it is currently below the threshold. Accordingly, a percentage threshold allows the EPA, over time, to always focus on the source categories with the potential to have the greatest impact. The framework on which EPA bases its decision today is, therefore, amenable to future use, which augurs in favor of the framework's use to make today's finding.

The EPA is introducing in this action that a threshold in the form of a percentage is both reasonable and more appropriate for making a significance determination for GHGs based on a percent's relative nature. A tonnage threshold is a static metric that would not change over time. As previously described, the trajectory of U.S. GHG emissions is trending down. As emissions decrease over the course of time, it is likely that source categories that were once above any static threshold will fall below such a threshold. Even though a source category may reduce overall U.S. GHG emissions, that source category's relative contribution to GHGs may not have changed or may have even increased based on GHG reductions in other source categories and sectors. Additionally, if emissions do decrease over time, the use of a tonnage threshold potentially results in no source category meeting the criteria for significance, even if collectively the U.S.GHG emissions continue to pose a danger to public health or welfare.

It should be noted that the U.S. GHG emissions of the EGU source category are more than an order of magnitude larger than the emissions threshold in the framework, representing 43 percent of U.S. stationary source GHG emissions. The EPA believes that it is possible for source categories with GHG emissions substantially larger than the threshold to be deemed significant on the basis of the primary criterion alone ( i.e., magnitude of emissions) and without consideration of the secondary criteria described elsewhere in this notice.

As noted previously, the primary criterion in evaluating the significance of a source category is, again, the relative magnitude of the U.S. GHG emissions. The EPA believes that NSPS source categories may be grouped into three tiers on the basis of magnitude of the U.S. GHG emissions, as follows:

As described above, the EPA is determining that the U.S. GHG emissions from a source category are the primary and most important criterion for making a determination of significance for a source category. However, there may be instances where the U.S. GHG emissions from a source category do not give a comprehensive enough picture to make a determination of significance. The threshold that the EPA has described above in Section IV.B would provide a clear indication that the U.S. GHG emissions from source categories below that threshold are necessarily insignificant. However, under this framework, for any source category that is above that threshold, there are other source-category specific considerations that should be evaluated in addition to GHG emissions when making a determination of significance. 14 For that reason, the EPA will consider other, secondary, criteria in the evaluation of significance for certain source categories. These other criteria are described in the subsequent subsections. It is important for the EPA to consider secondary criteria in the evaluation of significance for certain source categories because the criteria provide unique context to the source category beyond the information provided by the magnitude of the source category's GHG emissions.

Under the introduced framework, the evaluation of the magnitude of the U.S. GHG emissions from a source category is a substantial indicator of whether a source category is significant, but in the specific instance of source categories that have greater GHG emissions than the threshold, an evaluation based on the magnitude of the U.S. GHG emissions may be inconclusive. Within the introduced framework, there are other emissions-based metrics that must be evaluated to clarify and make a significance determination for these source categories.

An important criterion that can help illuminate and contextualize a significance determination is an evaluation of the trends in emissions and number of designated facilities within a source category. Primarily, the EPA is evaluating whether a source category is on a trajectory of the U.S. GHG emission decline. If the source category, as a whole, is decreasing its GHG emissions, an explanation for why it is on the decline may aid in making a significance determination. In one scenario, if the source category is decreasing emissions because the source category is declining in production or other output ( e.g., due to decreasing demand for goods or other market conditions, due to relocation overseas, or due to the cumulative effect of regulations), it may lend towards an insignificance determination as the emissions are already declining and expected to continue to decline even without further regulation. In a separate scenario, if a source category's GHG emissions are declining due to increased efficiency and updated technology, it may lend towards a determination of significance. This would allow the EPA the ability to regulate the source category in order to ensure that efficiency and technology improvements become standard across the source category through both an NSPS (111(b) regulation) for new, modified and reconstructed sources and an emission guidelines (111(d) regulation) for existing sources.

In a scenario in which the EPA were to find a source category to be growing in either emissions or number of designated facilities (or both), it could lend towards that source category being found to be significant. This would allow EPA to regulate and mitigate emissions from new, modified and/or reconstructed designated facilities within that source category under CAA section 111(b) ( i.e., via a NSPS).

If the EPA were to evaluate the trend in the number of designated facilities and emissions of a source category, it might show a static number of existing facilities with a constant or slightly increasing quantity of the U.S. GHG emissions. In this scenario, there may be little utility in determining significance for that source category and consequentially developing a NSPS as there are little to no emissions that would be subject to such a standard. However, creating a NSPS for a source category and pollutant is a necessary predicate to regulating existing sources under CAA section 111(d). Hence, in the scenario of a static number of existing facilities, a finding of significance for the source category may be warranted as it would allow eventual regulation of a group of existing source categories. Under this framework, the EPA expects the prospect of regulating a source category under CAA section 111(d) for existing sources to be a compelling reason for determining significance.

Another important criterion that the EPA considers, as a secondary factor, is the relative contribution of GHG emissions from the U.S. in a specific source category compared to worldwide emissions of similar sources. As previously described, Section 111(b)(1)(A) of the CAA states that the Administrator shall include source categories that contribute significantly to endangerment of health and welfare. When evaluating a global pollutant such as GHGs, the EPA views the impact of domestic emissions from domestic sources as a more germane consideration when determining whether a pollutant contributes significantly to endangerment of health or welfare. Because every ton of GHG contributes to the global problem, a domestic ton will still have some impact in the U.S. Accordingly, it is reasonable for the EPA to evaluate whether a source category is well-regulated internationally and whether the U.S. emissions from that sector make up a relatively large share of GHG emissions on a worldwide scale, as such evaluation in turn would inform whether U.S. emissions are significantly contributing to domestic impacts. If the emissions from the U.S. are comparatively a large contribution to source category/sector emissions worldwide, it may lend towards a finding of significance for the source category based on the U.S.'s substantial global contribution to the source category. If, however they are relatively small, it would suggest less benefit from the EPA regulation of that source category.

The EPA also considers, as one of the secondary criteria, an evaluation of whether a source category is vulnerable to being trade exposed ( i.e. whether the source category is constrained in the sources' ability to pass through carbon costs due to actual or potential international competition). The EPA evaluates whether regulation of the source category would create a financial incentive for that source category/industry to move into, or increase production in, another country. This could be manifested as either a shift in production to facilities internationally or a complete closure of existing designated facilities in the U.S. It is not the EPA's intention in regulating source categories to drive production from the U.S. to other countries, and there is an environmental concern in pushing industries to other international locations. This concern is based on the potential for these new international emissions to increase compared to the corresponding displaced U.S. emissions. 15 While this is always a concern for the EPA in the regulation of industry within the U.S., it even more pronounced with the consideration of GHG emissions. As discussed, previously, the U.S. GHG emissions are a global pollutant that also have domestic impacts. As such, if a smaller quantity of domestic GHG emissions would be displaced, due to a regulation, by a greater quantity of international GHG emissions it may support a finding of insignificance for a given source category. This would occur if the U.S. sources are already significantly lower emitting in GHG emissions than sources in other countries. It should also be noted that source categories whose sources in the U.S. make up a relatively smaller proportion of the world's emissions from corresponding international sectors may be particularly vulnerable to being trade exposed as there is likely a greater international capacity to absorb the displaced U.S. production.

Given the global nature of GHG emissions, assessing and understanding the estimated potential net emissions impact of GHG control technologies provides useful context in which to consider the significance of a given set of GHG emissions In addition, there may also be value in evaluating and considering the technology with the associated source category ( i.e., intrinsic to the process of the source category)—a prime example of reductions associated with this evaluation might be assessing the likely impacts of efficiency improvements. From a public welfare and human health perspective, targeting source categories that provide the largest overall possible scope for emissions reductions could be an intrinsic part of determining the significance of a given magnitude of emissions. Thus, the EPA is determining that it is appropriate in a given instance to consider feasible technologies (including efficiency improvements) for further context in the Agency's determination of significance of a source category's overall emissions. Here, the magnitude of GHG emissions from EGUs coupled with the reductions available through efficiency improvements supports the EPA's determination of significance.

As introduced in this framework, the evaluation of the secondary criteria is not intended to be performed in isolation. Rather, the EPA considers the weight of evidence of all the factors (both primary and secondary) to make an informed and comprehensive decision as to whether a source category that exceeds the 3-percent threshold contributes significantly to the U.S. GHG emissions. The consideration of criteria also has a temporal consideration to a significance determination. A source category's determination can be reevaluated in the future as the status and criteria described here may have changed for that source category. For example, the technology to adequately regulate GHGs from a source category may not be readily available at this time, but in the future that technology may become more broadly available causing the EPA to then make a SCF.

As noted above, the Agency is finalizing a determination that GHG emissions from EGUs  16 contribute significantly to dangerous air pollution. The primary criterion in determining whether to make a SCF is the magnitude of GHG emissions from a given source category. It is readily apparent that EGUs emit a uniquely large amount of GHGs compared to all other categories of stationary sources. The EPA made this clear in the 2015 Rule, quoted above, and reiterated it in the 2020 Oil & Gas Rule: “the unique CO 2 emissions profile of fossil fuel-fired EGUs should be noted: the volume of emissions from EGUs dwarfs the amount of GHG emissions from every other source category.” 85 FR 57039, n.49.

Although GHG emissions from EGUs have fallen since the EPA promulgated the 2015 Rule, they still remain uniquely large among stationary source categories. The EPA's Inventory of U.S. Greenhouse Gas Emissions  17 indicates that, as of 2018, the Electric Power sector directly emitted 1,778.5 MMT of GHGs. 18 This amount was more than twice the amount of GHGs emitted by all other industrial sources combined and more than all other industrial, commercial, and residential stationary combustion sources combined. 19 In addition, direct GHG emissions from EGUs account for approximately 27 percent of total U.S. GHG emissions and 43 percent of U.S. stationary source emissions. The direct GHG emissions from EGUs account for approximately 4 percent of total worldwide GHG emissions and are greater than the emissions of all but four countries. 20 These facts confirm that at current emission levels, EGUs have measurable impacts on both the U.S. contribution to GHG emissions and the worldwide total GHG emissions and continue to be uniquely large stationary source emitters of GHGs. It should be noted that if domestic EGUs no longer emitted any GHG emissions, there would be a measurable impact on worldwide GHG emissions and between 2020 and 2100, there would be a reduction in the projected increase in global temperatures by 0.049 degrees Celsius (° C).

Because EGUs represent by far the largest stationary source of GHGs from combustion of fossil fuels, the EPA believes that this is the most appropriate place for the EPA, states, and sources to devote resources to reducing GHGs from stationary sources. Indeed, this uniquely large magnitude of emissions is the reason over the last 8 years, the Agency has devoted significant effort to determine how to best reduce GHGs from EGUs. Because EGUs are a relatively large U.S. source of emissions in an overall large pool of international EGU sources, regulation over time could help produce practices and technologies that have application to EGUs worldwide.

It is noteworthy that GHG emissions from EGUs are approximately an order of magnitude greater than the estimated emissions of the second largest stationary source category of GHGs attributed to combustion, industrial boilers. Because the magnitude of GHG emissions from EGUs is large compared to other stationary sources, this makes them clearly significant even without detailed consideration of other factors. As mentioned earlier, the EPA is also introducing a framework under which a source category that emits above a threshold of 3 percent of U.S. stationary source GHG emissions may contribute significantly to dangerous GHG air pollution. For those source categories above that threshold, the EPA is also determining that consideration of certain secondary criteria may, collectively, also inform the evaluation of whether a source category should be considered to significantly contribute. However, within this framework, that analysis of secondary criteria is not necessary in the case of EGUs, due to the overwhelmingly large emissions of the source category; it is clear that controlling GHG emissions from the EGU source category will be necessary to appropriately address dangerous air pollution. This conclusion is consistent with the EPA's 2018 Proposal where the Agency explained that if the EPA was required to evaluate significance, EGUs would be considered significant.

The EPA is determining that the uniquely large GHG emissions from EGUs makes a finding of significant contribution and regulation appropriate by itself. Under the introduced framework, while the EPA does not think it is necessary to consider secondary criteria because of the uniquely large emissions from the EGU source category, as explained below, the EPA would make the same determination even if it did consider those criteria.

As mentioned earlier, an important criterion is the evaluation of the trends in emissions and number of designated facilities within a source category, such that the EPA can evaluate whether a source category is on a trajectory of U.S. GHG emission decline.

While electricity demand is projected to increase the U.S., due to the increased use of less carbon intensive generation technologies and more efficient generation, GHG emissions from the power sector are projected to remain relatively steady for the foreseeable future. However, EGUs are projected to remain the single largest stationary source of GHG emissions, and while the Agency expects few, if any, new coal-fired EGUs will be built to meet the demand for electricity, coal-fired EGUs are expected to continue to supply electricity and emit significant GHG emissions for the foreseeable future. 21 The EGU source category also includes stationary combustion turbines. The EPA expects new simple cycle and combined cycle combustion turbine EGUs will be built in the future and that the existing fleet of combustion turbines will continue to operate. 22 Therefore, efficient generation technology could eventually become standard for all new and existing EGUs. Consequently, the EPA would consider the source category trends as supporting the regulation of GHG emissions from EGUs.

The EPA is also determining that it can consider, as a secondary criterion, the relative contribution of GHG emissions from the U.S. in the specific source category compared to worldwide emissions of similar sources. Accordingly, the EPA evaluates whether a source category is well-regulated internationally and whether the U.S. emissions from that sector make up a relatively large share of global GHG emissions, as such evaluation in turn would inform whether U.S. emissions are significantly contributing to domestic impacts. In this instance, this criteria points towards a finding of significance given that U.S. EGUs make up a sizeable portion (13 percent of the emissions) from EGUs worldwide. 23

As mentioned earlier in this notice, the EPA is also introducing that one of the secondary criteria is an evaluation of whether a source category is vulnerable to being trade exposed ( i.e., whether the source category is constrained in its ability to absorb regulatory costs due to actual or potential international competition). Concerns about international competition would not impact the Agency's decision to regulate EGUs because electricity must be transported over power lines and it is not as easy to relocate or shift production locations as it is for other source categories. The ability to locate generation in Mexico and Canada and transmit the power to the U.S. is limited because of constraints on existing transmission lines and the expense to build additional transmission capacity. The only additional transmission capacity currently being considered is for electricity generated from hydroelectric power in Canada to supply power to New England. Since this electricity has a low carbon intensity, it would not contribute to an overall increase in GHG emissions. Furthermore, the emission standards in this rule will not increase the costs of electricity from a new coal-fired EGU such that it might be financially advantageous to locate new production internationally to countries with less stringent regulations. If international competition were a concern, the Agency would compare the forecast GHG emissions from international sources (in this case, EGUs in Canada and Mexico) against the forecast GHG emissions from domestic sources (in this case domestic EGUs) in both the absence of and implementation of the NSPS. In addition, since few, if any, new coal-fired EGUs are forecast to be built in the U.S., the standards in this final rule will not impact electricity prices to end users to an extent that other industries would be incentivized to relocate internationally due to increased electricity costs. Therefore, domestic reductions in GHG emissions from regulating EGUs will not be offset by increased international GHG emissions. In contrast, for source categories that supply raw materials to other domestic source categories, the impact of international competition on those source categories and the resultant GHG impacts could be considered when determining an appropriate NSPS. It is conceivable that an overly stringent NSPS could result in an increase in global GHG emissions, if the increase in international emissions is greater than the reduction in domestic emissions.

This rule takes final action affecting fossil fuel-fired EGUs. These EGUs take two forms that are relevant for present purposes: Steam generating units (utility boilers and gasification units) and stationary combustion turbines. Fossil fuel-fired steam generating units can burn natural gas, oil, or coal. However, coal is the dominant fuel for electric utility steam generating units. Coal-fired steam generating units are primarily either PC or fluidized bed (FB) steam generating units. 24 At a PC steam generating unit, the coal is crushed (pulverized) into a powder to increase its surface area. The coal powder is then blown into a steam generating unit and burned. In a fossil fuel-fired steam generating unit using FB combustion, the solid fuel is burned in a layer of heated particles suspended in flowing air. Power can also be generated from coal or other fuels using gasification technology. An Integrated Gasification Combined Cycle (IGCC) unit gasifies coal or petroleum coke to form a synthetic gas (or syngas) composed of carbon monoxide (CO) and hydrogen (H 2 ), which can be combusted in a combined cycle system to generate power. Stationary combustion turbines include both fossil fuel-fired simple cycle and combined cycle combustion turbine EGUs.

The EPA does not anticipate that this final rule for fossil-fuel-fired EGUs will result in significant CO 2 emission changes.

This final rule for fossil-fuel-fired EGUs is not anticipated to have an effect on the supply, distribution, or use of energy.

The EPA does not believe that this final rule for fossil-fuel-fired EGUs will have compliance costs associated with it.

The EPA does not anticipate that this final rule for fossil-fuel-fired EGUs will result in economic or employment impacts. Likewise, the EPA believes this rule will not have any impacts on the price of electricity, employment or labor markets, or the U.S. economy.

The EPA does not anticipate emission changes resulting from the final rule for fossil-fuel-fired EGUs.

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders .

This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review because it raises novel legal or policy issues. Any changes made in response to OMB recommendations have been documented in the docket.

This action is not expected to be an Executive Order 13771 regulatory action. There are no quantified cost estimates for this final rule because the EPA does not anticipate this action to result in costs or cost savings.

This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing parts 75 and 98 regulations and has assigned OMB control numbers 2060-0626 and 2060-0629, respectively.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden, or otherwise has a positive economic effect on the small entities subject to the rule. The EPA expects there to be few, if any, new, modified, or reconstructed coal-fired EGUs. As such, this final rule would not impose significant requirements on those sources, including any that are owned by small entities. The EPA has, therefore, concluded that this action will have no net regulatory burden for all directly regulated small entities.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications, as specified in Executive Order 13175. It would neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. The EPA is aware of three coal-fired EGUs located in Indian Country but is not aware of any EGUs owned or operated by tribal entities. The EPA notes that this action would affect only existing sources such as the three coal-fired EGUs located in Indian Country if those EGUs were to take actions constituting modifications or reconstructions as defined under the EPA's NSPS regulations. However, as previously stated, the EPA expects there to be few, if any, new, reconstructed, or modified EGUs. Thus, Executive Order 13175 does not apply to this action.

Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes, the EPA offered consultation with tribal officials during the development of this action; however, the Agency did not receive a request for consultation. The EPA held meetings with tribal environmental staff during the public comment period to inform them of the content of the proposed rule and to encourage them to submit comments on the proposed rule.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health or safety risk.

This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy and has not otherwise been designated as a significant energy action by the Administrator of the Office of Information and Regulatory Affairs (OIRA). This final action is not anticipated to have impacts on emissions, costs, or energy supply decisions for the affected electric utility industry.

This rulemaking does not involve technical standards.

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specific in Executive Order 12898 (59 FR 7629, February 16, 1994), because it does not affect the level of protection provided to human health or the environment. As previously stated, the EPA expects that few, if any, coal-fired EGUs would be affected by this action.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives, new and substantially improved construction, and development in general from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with NFIP regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date listed in the third column. As of that date, flood insurance will no longer be available in the community. FEMA recognizes communities may adopt and submit the required documentation after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. Their current NFIP participation status can be verified at anytime on the CSB section at fema.gov.

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the published FIRM is indicated in the fourth column of the table. No direct federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. FEMA has determined that the community suspension(s) included in this rule is a non-discretionary action and therefore the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) does not apply.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

This rule adjusts the civil monetary penalties assessable by the Commission in accordance with the 2015 Act, which became effective on November 2, 2015. Public Law 114-74, section 701. The 2015 Act further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA), Public Law 101-410, 104 Stat. 890 (codified as amended at 28 U.S.C. 2461 note), in order to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect.

The 2015 Act requires agencies to adjust civil monetary penalties under their jurisdiction by January 15 each year, based on changes in the consumer price index (CPI-U) for the month of October in the previous calendar year. On December 23, 2020, the Office of Management and Budget published guidance stating that the CPI-U multiplier for October 2020 is 1.01182. 1 In order to complete the adjustment for January 2021, the Commission must multiply the most recent civil penalty amounts in 46 CFR part 506 by the multiplier, 1.01182.

Adjustments under the FCPIAA, as amended by the 2015 Act, are not subject to the procedural rulemaking requirements of the Administrative Procedure Act (APA) (5 U.S.C. 553), including the requirements for prior notice, an opportunity for comment, and a delay between the issuance of a final rule and its effective date. 2 As noted above, the 2015 Act requires that the Commission adjust its civil monetary penalties no later than January 15 of each year.

The rule is not a “major rule” as defined by the Congressional Review Act, codified at 5 U.S.C. 801 et seq. The rule will not result in: (1) An annual effect on the economy of $100,000,000 or more; (2) a major increase in costs or prices; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies. 5 U.S.C. 804(2).

The Regulatory Flexibility Act (codified as amended at 5 U.S.C. 601-612) provides that whenever an agency promulgates a final rule after being required to publish a notice of proposed rulemaking under the APA (5 U.S.C. 553), the agency must prepare and make available a final regulatory flexibility analysis describing the impact of the rule on small entities or the head of the agency must certify that the rule will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 604-605. As indicated above, this final rule is not subject to the APA's notice and comment requirements, and the Commission is not required to either conduct a regulatory flexibility analysis or certify that the final rule would not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) requires an agency to seek and receive approval from the Office of Management and Budget (OMB) before collecting information from the public. 44 U.S.C. 3507. The agency must submit collections of information in rules to OMB in conjunction with the publication of the notice of proposed rulemaking. 5 CFR 1320.11. This final rule does not contain any collection of information, as defined by 44 U.S.C. 3502(3) and 5 CFR 1320.3(c).

The Commission assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda). The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The public may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda, available at http://www.reginfo.gov/public/do/eAgendaMain.

For the reasons stated in the preamble, 46 CFR part 506 is amended as follows:

This is a summary of the Commission's Report and Order, FCC 20-171, CG Docket No. 20-93, adopted on November 24, 2020, and released on November 30, 2020. The full text of this document is available online at https://docs.fcc.gov/public/attachments/FCC-20-171A1.docx. To request this document in accessible formats for people with disabilities ( e.g., Braille, large print, electronic files, audio format) or to request reasonable accommodations ( e.g., accessible format documents, sign language interpreters, CART), send an email to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

The Commission sent a copy of document FCC 20-171 to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

The Report and Order does not contain any new or modified information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. It, therefore, does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

1. In the Report and Order, the Commission implements section 12 of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement Act (TRACED Act), Public Law 116-105, 12, December 30, 2019, 133 Stat. 3286 (codified at 47 U.S.C. 227 note). Section 12 of the TRACED Act directs the Commission to consider taking additional steps to protect called parties from a type of illegal call known as the one-ring scam. In the Report and Order, the Commission adopts the proposal in the Notice of Proposed Rulemaking (NPRM), published at 85 FR 30672, May 20, 2020, with some minor modifications. The Commission adds a new paragraph (k)(2)(iv) to 47 CFR 64.2400 to allow voice service providers to block all calls from a telephone number that the provider identifies, based on reasonable analytics, as highly likely to be associated with a one-ring scam. The Commission also adopts a definition of one-ring scam in paragraph (f)(8) that is consistent with the definition set forth in the proposed rule: The term one-ring scam means a scam in which a caller makes a call and allows the call to ring the called party for a short duration, in order to prompt the called party to return the call, thereby subjecting the called party to charges.

2. Based on the record, the Commission concludes that these rule changes will help protect consumers from the scam and, consistent with section 12(b)(4) of the TRACED Act, will incentivize voice service providers to stop calls made to perpetrate one-ring scams from being received by called parties. This rule amendment is also consistent with the congressional directive in the same section of the statute regarding the addition of identified one-ring scam type numbers to the Commission's existing list of permissible categories for carrier-initiated blocking. In addition, pursuant to section 12(b)(5) of the TRACED Act, this rule takes into account and relies, in part, on the work of entities that provide call-blocking services to address one-ring scams.

3. One-ring scam calls serve no beneficial purpose, and thus no reasonable consumer would want to receive them. Accordingly, the Commission does not require terminating providers to give their customers an opportunity to opt out of the blocking of such calls. The Commission encourages voice service providers to implement call-blocking measures that will help eliminate or reduce the number of one-ring scam calls that reach consumers.

4. The Commission also extends to one-ring scam blocking the safe harbor for inadvertent blocking of wanted robocalls using reasonable analytics. This safe harbor gives voice service providers assurance that blocking of one-ring scam calls based on reasonable analytics will not result in liability if they inadvertently block wanted calls, and it thus strengthens their ability and incentive to protect consumers from such scams. For this reason, the Commission is adding a reference to reasonable analytics—a term that was not included in the rule text proposed in the NPRM—to paragraph (k)(2)(iv) of the final rule.

5. While voice service providers already have authority to block illegal one-ring scam calls, the rule adopted herein will remove any doubt that voice service providers may lawfully use reasonable analytics to identify and block calls that appear to be one-ring scam calls, even if such identification proves to be erroneous in any particular instance; that they may do so without fear of liability for inadvertently blocking wanted calls; and that they may do so on a network-wide basis. The Commission believes this will strongly encourage voice service providers to take a more aggressive approach to blocking one-ring scam calls and thus will further protect consumers from such scams.

6. Some commenters recommended that the Commission focus on combatting one-ring scam calls that fraudulently induce consumers to place calls to premium-rate numbers under a foreign government's national numbering plan, subject to analytics that suggest reasonable cause to treat such inbound calls as scam calls. The Commission agrees that voice service providers could block such inbound calls if they satisfy the applicable criteria in the rules.

7. Section 12(b)(6) of the TRACED Act directs the Commission to consider requiring international gateway providers to verify the nature or purpose of calls but does not require the Commission to adopt such a rule. The Commission stated that it would consider this proposal in the context of another pending proceeding, in which it sought comment on adopting a broader set of safeguards that would require voice service providers to take affirmative, effective measures to prevent new and renewing customers from using their networks to originate illegal calls and would hold them responsible for doing due diligence on their high-volume customers. See Advanced Methods to Target and Eliminate Unlawful Robocalls, published at 85 FR 46063, July 31, 2020, paragraph 13.

8. Pursuant to section 12(b)(1) of the TRACED Act, the Commission is working with federal and state law enforcement agencies to protect consumers from one-ring scams by participating in an interagency working group, convened by the Attorney General, in consultation with the Chairman of the Commission, to study Government prosecution of violations of 47 U.S.C. 227(b), and will ensure that the group addresses one-ring scams. Pursuant to section 12(b)(2) of the TRACED Act, the Commission intends to expand and enhance its enforcement coordination and cooperation with foreign governments aimed at combatting unlawful cross-border schemes such as one-ring scams. And pursuant to section 12(b)(3) of the TRACED Act, the Commission will continue and expand its proactive consumer outreach efforts, in conjunction with the Federal Trade Commission, to better educate consumers about how to avoid one-ring scams as well as other fraudulent and abusive robocalling practices.

9. As required by the Regulatory Flexibility Act of 1980, as amended, (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM in this docket. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Final Regulatory Flexibility Analysis FRFA conforms to the RFA.

10. Need for, and Objectives of, the Rules. In the Report and Order, the Commission adopts, with some modification, the proposal in the NPRM to include numbers that are likely to be associated with the one ring scam as a category of numbers that voice service providers can block. This will implement section 12 of the TRACED Act, to prevent consumers from a type of scam called a one-ring scam. The TRACED Act defines “one-ring scam” as “a scam in which a caller makes a call and allows the call to ring the called party for a short duration, in order to prompt the called party to return the call, thereby subjecting the called party to charges.”

11. Section 12 of the TRACED Act requires the Commission to initiate a proceeding to protect consumers from one-ring scams and to consider the following ways: Work with federal and state law enforcement agencies; work with the governments of foreign countries; in consultation with the FTC, better educate consumers about how to avoid one-ring scams; encourage voice service providers to stop one-ring scam calls, including adding identified one-ring scam-type numbers to the list of permissible categories for carrier-initiated blocking; work with entities that provide call-blocking services to address one-ring scams; and establish obligations on international gateway providers, including potential requirements that such providers verify with the foreign originator the nature or purpose of calls before initiating service.

12. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. There were no comments filed that specifically addressed the rules and policies proposed in the IRFA.

13. 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.

14. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements. Voice service providers may implement reporting or recordkeeping in order to accomplish blocking of one-ring scam calls, but it is not required in the rule.

15. Steps Taken to Minimize Significant Economic 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 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.

16. The Commission's rule allows, but does not require, voice service providers to block calls from numbers that they identify, using reasonable analytics, as likely to be associated with one-ring scams. The rule is permissive, not mandatory; it allows all voice service providers, including small businesses, to block such calls, but it does not impose any new compliance obligations or reporting obligations. To the extent this new rule has any economic impact on voice service providers that are small entities, the impact will likely be beneficial because they will be shielded from liability if they opt to block calls in the manner described in the Report and Order.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 part 64 as follows:

Executive Summary

Why we need to publish a rule. Under the Act, a species may be removed from the Federal List of Endangered and Threatened Wildlife (List) if it is determined that the species has recovered and no longer meets the definition of an endangered or threatened species. Removing a species from the List can only be completed by issuing a rule.

What this document does. This rule removes the Interior least tern ( Sterna (now Sternula ) antillarum ) from the List in title 50 of the Code of Federal Regulations (50 CFR 17.11(h)) based on its recovery.

The basis for our action. Under the Act, we determine that a species is an endangered species or a threatened species based on 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 must consider the same factors when removing a species from the List ( i.e., “delisting” a species). We may delist a species if we find, after conducting a status review based on the best scientific and commercial data available, that: (1) The species is extinct; (2) the species does not meet the definition of an endangered species or a threatened species ( e.g., because it has recovered); or (3) the listed entity does not meet the statutory definition of a species (50 CFR 424.11(e)). We have determined that the Interior least tern is not in danger of extinction now nor likely to become so in the foreseeable future based on a comprehensive review of its status and listing factors. Accordingly, we have determined that the species may be delisted based on recovery as a result of: (1) A range extension; (2) an increase in abundance and number of breeding sites; (3) resiliency to existing and potential threats; (4) the implementation of beneficial management practices; and (5) changes in existing regulatory mechanisms that are more protective of migratory bird habitats.

Peer review and public comment. We evaluated the species' needs, current conditions, and future conditions to prepare our October 24, 2019, proposed rule (84 FR 56977). We sought and evaluated comments from independent specialists to ensure that our determination is based on scientifically sound data, assumptions, and analyses. We also invited these peer reviewers to comment on the draft post-delisting monitoring (PDM) plan. We considered all comments and information we received during the public comment period on the proposed delisting rule and the draft PDM plan when developing this final rule.

On October 24, 2019, we published a proposed rule to remove the Interior least tern from the Federal List of Endangered and Threatened Wildlife (84 FR 56977). Please refer to that proposed rule for a detailed description of previous Federal actions concerning this species. The proposed rule and supplemental documents are provided at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0082 or at https://www.fws.gov/mississippiES/.

Least terns within the Interior Basin of North America were described as Sterna antillarum athalassos, a subspecies of the eastern least tern ( S. antillarum antillarum ) (Burleigh and Lowery 1942, pp. 173-177). In 2006, the American Ornithologist's Union recognized least terns under a previously published genus ( Sternula ) based on mitochondrial DNA phylogeny (Bridge et al. 2005, p. 461). Interior least tern was one of three subspecies of New World (North and South America) least terns previously recognized by the American Ornithologists' Union (1957, p. 239), including the eastern least tern and the California least tern ( S. antillarum browni ). However, due to taxonomic uncertainty surrounding least tern subspecies at the time of listing (50 FR 21784; May 28, 1985), we treated the Interior least tern as a population of eastern least tern.

Since that time, genetic analyses of North American populations of least tern found no evidence of differentiation warranting subspecies recognition ( e.g., Whittier 2001, p. 10; Draheim et al. 2010, pp. 813-815; Draheim et al. 2012, p. 146). Genetic exchange between eastern least terns and Interior least terns is occurring at a rate greater than three migrants per generation between populations (Whittier et al. 2006, p. 179). After reviewing the best available scientific information regarding the taxonomy of the Interior least tern, we continue to conclude that it is a distinct population segment of the eastern least tern ( Sternula antillarum ).

Least terns are the smallest members of the family Laridae, measuring 21 to 23 centimeters (cm) (8 to 9 inches (in)) long with a 56-cm (22-in) wingspan (Thompson et al. 1997, pp. 1-2). Sexes look alike, characterized in the breeding plumage by a black crown, white forehead, grayish back and dorsal wing surfaces, snowy white undersurfaces, orange legs, and a black tipped yellow bill. Immature birds have darker plumage, a dark bill, and dark eye stripes on their white heads. Least terns are distinguished from all other North American terns by their small size. Interior least terns can only be separated from eastern and California least terns by the geographic area used for nesting.

Interior least terns are potentially long-lived, with records of recapture more than 20 years following banding (Thompson et al. 1997, p. 15); however, the average life span is probably less.

Least terns begin breeding and nesting in their second or third year and breed annually throughout their lives (Thompson et al. 1997, p. 15). Prior to nesting, young birds exhibit some level of prospecting behavior (exploratory dispersal) across the landscape ( e.g., Boyd and Thompson 1985, p. 405; Lott 2012, p. 12; Shigeta in litt. 2014, entire).

Interior least terns generally nest on the ground, in open areas, and near appropriate feeding habitat (Lott and Wiley 2012, pp. 9-11). Nests are simple scrapes in the sand, and nesting sites are characterized by coarser and larger substrate materials, more debris, and shorter and less vegetation compared to surrounding areas (Smith and Renken 1993, p. 501; Stucker 2012, p. 49). Typical least tern clutch size is reported as two to three eggs (Thompson et al. 1997, p. 15); however, clutch size may vary by location and year ( e.g., Szell and Woodrey 2003, p. 37; Jones 2012, p. 3).

Natural nesting habitat features are maintained and influenced by magnitude and timing of riverine flood events (Sidle et al. 1992, p. 134; Renken and Smith 1995, pp. 194-195; Pavelka in litt. 2012, p. 2). The Interior least tern prefers vegetation-free sand or gravel islands for nesting, although sand banks, point bars, salt flats or plains, and beaches may also be used. Interior least terns prefer areas remote from trees or other vegetation that may hide or support predators (Lott and Wiley 2012, pp. 9-11). Least terns also nest on anthropogenic sites (originating from human activity) (Jackson and Jackson 1985, p. 57; Lott 2006, p. 10) near water bodies that contain appropriate and abundant prey fishes. Anthropogenic sites used by the tern include industrial sites (Ciuzio et al. 2005, p. 102; Mills 2012, p. 2), dredge spoil (Ciuzio et al. 2005, p. 102), sand pits (Smith 2008, p. 2), constructed habitats (Stucker 2012, pp. 59-66), and rooftops (Boland 2008, entire; Watterson 2009, entire).

Lott and Wiley (2012, pp. 9-11) described five physical and biological conditions that are necessary for Interior least tern nest initiation and successful reproduction:

(1) Nest sites that are not inundated (flooded) during egg laying and incubation;

(2) Nesting sites that are not inundated until chicks can fly;

(3) Nesting sites with less than 30 percent ground vegetation;

(4) Nesting sites that are more than 76 meters (m) (250 feet (ft)) from large trees; and

(5) Availability of prey fishes to support chick growth until fledging.

Interior least terns are colonial nesters. Colony size may vary from a few breeding birds to more than 1,200 (Jones 2012, p. 3). Populations in some river drainages may be limited by annual availability of nesting habitat ( e.g., Missouri River; Stucker 2012, p. 104), while potential nesting habitat is generally abundant and underused in other drainages ( e.g., Mississippi River; U.S. Army Corps of Engineers (USACE) 2008, pp. 10-13). Nesting site conditions ( e.g., habitat suitability, flood cycles, prey fish abundance, predation pressure) can vary significantly from year to year in all drainages, resulting in wide fluctuations in bird numbers (Jones 2012, p. 14) and/or nesting success (Smith and Renken 1993, p. 41; Lott and Wiley 2012, p. 15). However, Interior least terns may re-nest, or relocate and re-nest, if nests or chicks are destroyed early in the season (Massey and Fancher 1989, pp. 353-354; Thompson et al. 1997, p. 15). Interior least tern chicks leave their nests within a few days of hatching (semiprecocial), but remain near the nests and are fed by their parents until fledging (Thompson et al. 1997, pp. 14-15).

Interior least terns are primarily piscivores (fish-eaters), and feed opportunistically on small fish species or the young of larger fish species. Prey species include native species such as shad ( Dorosoma spp.), carps and minnows (Cyprinidae), freshwater drum ( Aplodinotus grunniens ), largemouth bass ( Micropterus salmoides ), white bass ( Morone chrysops ), sunfishes ( Lepomis spp.), and top minnows ( Fundulus spp.), as well as invasive species such as silver and bighead carp ( Hypophthalmichthys spp.) (USACE 2008, pp. 16, 26). On the Missouri River, prey species include emerald shiner ( Notropis atherinoides ), sand shiner ( Notropis stramineus ), spotfin shiner ( Cyprinella spiloptera ), and bigmouth buffalo ( Ictiobus cyprinellus ) (Stucker 2012, p. 6). Least terns will also occasionally feed on aquatic or marine invertebrates (Thompson et al. 1997, pp. 6-7). Riverine foraging habitats and fish abundance may be influenced by stochastic (random) hydrological conditions and events ( i.e., flow, and flood timing and magnitude), and channel engineering (Schramm 2004, pp. 307, 321-323).

In the Missouri River drainage, Interior least terns forage for fish in shallow water habitats and within 12 kilometers (km) (7 miles (mi)) from colony sites (Stucker 2012, p. 24). In the Lower Mississippi River, foraging terns have been observed feeding in a variety of habitats within 3 km (2 mi) of colony sites (Jones 2012, pp. 5-6).

Interior least tern fall migrations generally follow major river basins to their confluence with the Mississippi River and then south to the Gulf of Mexico; however, late summer observations of least terns more than 150 km (93 mi) from major river drainages indicate that some birds migrate over land (Thompson et al. 1997, p. 16). Interior least terns gather in flocks in August prior to migration. Once they reach the Gulf Coast, they cannot be distinguished from other least tern populations en route to, or within, their winter habitats ( i.e., Gulf of Mexico, Caribbean islands, Central and South America); therefore, the limited information on migration and winter habitat is inclusive of other populations ( i.e., Caribbean, Gulf Coast, East Coast). Least terns appear to migrate in small, loose groups along or near shore, feeding in shallows and resting onshore (Thompson et al. 1997, pp. 4-6). Very little is known of least tern winter habitats, other than that the birds are primarily observed along marine coasts, in bays and estuaries, and at the mouths of rivers (Thompson et al. 1997, p. 6).

Breeding-site fidelity for least terns varies in different populations and breeding areas. Return rates of banded adults to the sites where they were banded was 36 to 86 percent in California colonies; 42 percent on the Mississippi River; 28 percent on the central Platte River, Nebraska; and 81 percent at Quivira National Wildlife Refuge in Kansas and on the Cimarron River in Oklahoma (Thompson et al. 1997, p. 16). Fidelity to natal site is also variable and difficult to estimate because re-sightings or recaptures of terns banded as chicks have been limited. Estimates of natal site fidelity have varied from 5 percent on the Mississippi River, to 82 percent in Kansas and Oklahoma (Thompson et al. 1997, p. 16).

Site fidelity in least terns may be affected by physical habitat variables or the extent and type of predation (Atwood and Massey 1988, p. 394). As noted above, least terns are strong fliers and can relocate if conditions on natal or previous-year nesting grounds become unfavorable. A study of eastern least terns found an average 22 percent turnover rate in nesting colony sites, primarily due to changes in habitat condition or disturbance (Burger 1984, p. 66).

Lott et al. (2013, pp. 3617-3618) found that 50 to 90 percent of reported recaptures occurred less than 26 km (16 mi) from the original banding sites, while more than 90 percent dispersed less than 96 km (59 mi), indicating a high degree of adult site fidelity and natal site philopatry (remaining near their point of origin). However, long distance dispersal (up to 1,000 km; 621 mi) has been documented ( e.g., Renken and Smith 1995, pp. 196-198; Boyd and Sexson 2004, p. 88; Lott et al. 2013, pp. 3617-3618), and may not be uncommon (Boyd and Thompson 1985, p. 405). Least tern nesting has also been documented in Brazil (Rodrigues et al. 2010, entire) and Hawaii (Conant et al. 1991, entire; Pyle et al. 2001, entire). During 2014, an Interior least tern banded in the Missouri River drainage was captured in Japan, along with another unbanded tern (Shigeta in litt. 2014).

Interior least tern eggs, chicks, and adults are prey for a variety of mammal and bird predators. Reported predators include birds ( e.g., crows, herons, owls, and hawks), mammals ( e.g., fox, coyote, racoon, and skunk), and catfish, as well as domesticated and feral dogs and cats (Thompson et al. 1997, pp. 10-11). The cryptic coloration of eggs and chicks, the secretive behavior of chicks, and the mobbing behavior (attack flights on potential predators) of adults, all serve to protect eggs and chicks from predators (Thompson et al. 1997, p. 11).

Location and size of nesting colonies also has a significant influence on degree of predation. Interior least tern reproductive success is higher on island colonies as compared to connected sandbar colonies, and when water levels maintain isolation of islands and nesting bars from mammalian predators (Smith and Renken 1993, p. 42; Szell and Woodrey 2003, p. 41). Additionally, significantly higher rates of predation were documented in larger colonies compared to smaller colonies (Burger 1984, p. 65).

The Service defined the historical breeding range of the Interior least tern to include the Colorado (in Texas), Red, Rio Grande, Arkansas, Missouri, Ohio, and Mississippi Rivers systems from Montana south to Texas, and from New Mexico east to Indiana (50 FR 21784; May 28, 1985). However, in order to avoid confusion with eastern least tern, the Service excluded the Mississippi River south of Baton Rouge, Louisiana, the Texas Coast, and a 50-mile zone inland from the coast of Texas from the protected range of Interior least tern (50 FR 21784, May 28, 1985, p. 21789).

The historical distribution and abundance of the Interior least tern within this range is poorly documented. Hardy (1957, entire) provided the first information on least tern distribution on large interior rivers, documenting records of occurrence and nesting in the Mississippi, Ohio, Missouri, Arkansas, and Red River drainages. Downing (1980, entire) published results from a rapid aerial/ground survey of a subset of these rivers, identifying additional nesting populations within the range noted above, and estimated the Interior least tern population at approximately 1,250 adult birds. Ducey (1981, pp. 10-50) doubled the number of known nesting sites, including areas between the scattered observations reported in Hardy (1957, entire). Ducey also extended the northern distribution of the Interior least tern to include the Missouri River below Garrison Dam in North Dakota and Fort Peck Dam in Montana. These three publications (Hardy 1957, entire; Downing 1980, entire; Ducey 1981, entire) provide the primary historical sources of information about the Interior least tern's geographic range, and were used to reach the estimate of 1,400 to 1,800 adults rangewide in the listing rule (50 FR 21784; May 28, 1985).

The current east to west distribution of summer nesting Interior least terns encompasses more than 18 degrees of longitude, or 1,440 km (900 mi), from the Ohio River, Indiana and Kentucky, west to the Upper Missouri River, Montana. The north to south distribution encompasses over 21 degrees of latitude (more than 2,300 km (1,450 mi)) from Montana to southern Texas. Interior least terns currently nest along more than 4,600 km (2,858 mi) of river channels across the Great Plains and the Lower Mississippi Valley (Lott et al. 2013, p. 3623), with nesting colonies found in 18 States, including: Montana, North Dakota, South Dakota, Nebraska, Colorado, Iowa, Kansas, Missouri, Illinois, Indiana, Kentucky, New Mexico, Oklahoma, Arkansas, Tennessee, Texas, Louisiana, and Mississippi. As noted above, this does not include least tern colonies nesting along the coasts of Texas, Louisiana, and Mississippi.

Rangewide surveys in 2005 estimated an approximate minimum adult population size of 17,500, with nesting occurring in more than 480 colonies spread across 18 States, which is likely an underestimate given imperfect detection of adults and survey coverage of potential habitat (Lott 2006, pp. 10-21, 50). Lott (2006, pp. 13-15) also provided counts for 21 populations or population segments that were unknown at the time of listing, which collectively support more than 2,000 terns.

The Interior least tern has demonstrated a positive population trend, increasing by almost an order of magnitude (or 10 times what it was prior) since it was listed in 1985. After it was listed, researchers increased survey effort and the geographical extent of the area surveyed, producing sufficient Interior least tern count data to analyze population trends for several river reaches that support persistent breeding colonies. Kirsch and Sidle (1999, p. 473) reported a rangewide population increase to over 8,800 adults in 1995, and found that 29 of 31 Interior least tern locations with multi-year monitoring data were either increasing or stable. Lott (2006, p. 50) reported an increase to over 17,500 adult birds in 2005, forming 489 colonies in 68 distinct geographic sites. While some proportion of the rangewide increase in adult bird counts and number of nesting colonies are likely attributable to increased survey efforts and improved survey techniques, both Kirsch and Sidle (1999, p. 473), and Lott and Sheppard (2017a, pp. 50-52) documented multiple drainage population increases using multi-year counts.

Lott (2006, p. 92) conceptualized the Interior least tern functioning as a large metapopulation (a regional group of connected populations of a species), which might also include least terns on the Gulf Coast. Using available information on dispersal of least terns, Lott et al. (2013, pp. 3616-3617) defined 16 discrete breeding populations of Interior least tern, with 4 major geographical breeding populations (population complexes) accounting for more than 95 percent of all adult birds and nesting sites throughout the range. Portions of these four population complexes have experienced multi-year monitoring to different degrees. While some local (colony, subpopulation) declines have been documented, the Interior least tern has experienced a dramatic increase in range and numbers since listing and development of the recovery plan ( e.g., Kirsch and Sidle 1999, p. 473; Lott 2006, pp. 10-49). There has been no reported extirpation of any population or subpopulation since the species was listed in 1985.

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Recovery plans must, to the maximum extent practicable, include “objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions [of section 4 of the Act], that the species be removed from the list.”

Recovery plans provide a roadmap for us and our partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery and assess the species' likely future condition. However, they are not regulatory documents and do not substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species, or to delist a species is ultimately based on an analysis of the best scientific and commercial data available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.

There are many paths to accomplishing recovery of a species, and recovery may be achieved without all of the criteria in a recovery plan being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and the species is robust enough that it no longer meets the definition of an endangered species or a threatened species. In other cases, we may discover new recovery opportunities after having finalized the recovery plan. Parties seeking to conserve the species may use these opportunities instead of methods identified in the recovery plan. Likewise, we may learn new information about the species after we finalize the recovery plan. The new information may change the extent to which existing criteria are appropriate for identifying recovery of the species. The recovery of a species is a dynamic process requiring adaptive management that may, or may not, follow all of the guidance provided in a recovery plan.

The Service approved the Interior Least Tern Recovery Plan on September 19, 1990 (Service 1990, entire). The objective of the recovery plan was to establish standards for recovery that may lead to delisting the Interior least tern. Recovery criteria are the values by which it is determined that a recovery plan objective has been reached. Recovery criteria identified in the recovery plan were designed to assure the protection of essential habitat by removal of threats at that time and habitat enhancement, establish agreed-upon management plans, and attain a rangewide population of 7,000 birds at the levels listed below (for five major river drainages throughout the Interior least tern's range):

(1) Adult birds in the Missouri River system will increase to 2,100, and remain stable for 10 years.

(2) Current numbers of adult birds (2,200-2,500) on the Lower Mississippi River will remain stable for 10 years.

(3) Adult birds in the Arkansas River system will increase to 1,600, and remain stable for 10 years.

(4) Adult birds in the Red River system will increase to 300, and remain stable for 10 years.

(5) Current numbers of adult birds (500) in the Rio Grande River system will remain stable for 10 years.

Primary recovery tasks conducted to achieve the recovery objective and drainage population targets included:

(1) Determining the distribution and population trends of the Interior least tern;

(2) Determining habitat requirements and status;

(3) Protecting, enhancing, and increasing Interior least tern populations; and

(4) Preserving and enhancing the tern's habitats.

These are briefly reviewed below.

The Interior least tern rangewide numerical recovery criterion (7,000 birds) has been met and has been exceeded since 1994 (see Service 2013, pp. 7-127). Using rangewide seasonal count data from 1984 (722 terns) through 1995 (8,859 terns), Kirsch and Sidle (1999, pp. 473-477) demonstrated achievement of the numerical recovery criterion and a positive population growth trend. They noted that most of the Interior least tern increase had occurred on the Lower Mississippi River, observed that population increases were not supported by fledgling success estimates available at that time, and hypothesized that Interior least tern increases were possibly due to immigration surges from a more abundant least tern population inhabiting the Gulf Coast (Kirsch and Sidle 1999, p. 478).

Lott (2006, entire) organized, compiled, and reported a synchronized rangewide count for Interior least tern in 2005, finding tern numbers had doubled since 1995 (17,591 birds rangewide; 62 percent occurring along the Lower Mississippi River), equaling or exceeding least tern population estimates along the U.S. Gulf Coast (Lott 2006, p. 50). Since 2006, the majority of Interior least terns continue to be reported from the Lower Mississippi River (Service 2013, p. 11). As did Kirsch and Sidle (1999, p. 478), Lott (2006, p. 52) also hypothesized a wider least tern metapopulation, which included Gulf Coast and interior subpopulations, and the possibility of a shift of birds from the Gulf Coast to inland habitats due to the presence of better nesting conditions, particularly on the Lower Mississippi River. However, there are few data directly supporting the Kirsch and Sidle (1999, pp. 473-477) or the Lott (2006, p. 52) immigration hypotheses as a factor in the 20-year increase in Interior least tern counts. There has not been a complete or organized rangewide count since 2005; however, some geographic segments continue to be annually monitored, including portions of the Missouri (USACE in litt. 2017, entire), Platte (Keldsen and Baasch 2016, entire), Red (Stinson in litt. 2017, entire), Arkansas (Cope in litt. 2017, entire; Nupp 2016, entire), and Wabash Rivers (Mills 2018, entire). These partial counts indicate that we continue to exceed the recovery goal of 7,000 birds (Service 2013, pp. 11-12).

In addition to the numerical population targets identified in the recovery plan for five major river drainages throughout the tern's range (see above), sub-drainage targets were also identified for the Missouri and Arkansas River drainages (Service 1990, pp. 28-29). Drainage and sub-drainage numerical targets were based upon the opinions of technical experts and State and Federal resource agencies of the potential for population increase at the time (Service 1990, p. 28). The drainage system population size targets have been exceeded in three of the five targeted drainages (Lower Mississippi (more than 25 years), Red (more than 15 years), and Arkansas Rivers (more than 10 years) (see Service 2013, pp. 22-26). As to the Rio Grande drainage, it is now recognized that the subpopulations found within the drainage represent recent exploitation of anthropogenic habitats ( i.e., salt flats and reservoirs) and are not historical habitats; thus, these areas were inappropriately designated as “essential” segments of the tern's ecosystem in the recovery plan (Service 2013, pp. 26-27). Therefore, numerical targets originally set for the Rio Grande drainage are no longer considered necessary for this species' recovery.

As to the Missouri River drainage, the Interior least tern population size has remained relatively stable (approximately 1,600 birds) over the 29 years since recovery criteria were identified (Service 2013, p. 11), and neither the drainage population target (2,100) nor many of the targets identified for Missouri River drainage segments have been consistently met (Service 2013, pp. 14-21). However, since the tern was listed, the Missouri River system has received a significant commitment of conservation attention and resources (USACE 2017a, pp. 1-17), particularly in comparison to other drainages that have experienced increases in tern populations. Based on the lack of increase in population, in light of the substantial commitment of resources, we conclude that that the Missouri River drainage is likely at the carrying capacity of the available habitat (Service 2013, pp. 14-21), and the recovery goal of 2,100 birds is not achievable. Periodic downward trends observed in a few Missouri drainage subpopulations have been reversed by habitat improvement following major floods (Pavelka 2012, p. 2), or offset by upward trends in other subpopulations (Pavelka 2012, pp. 7-8; Lott and Sheppard 2017a, pp. 49-53), indicating that the Missouri River drainage Interior least tern population is sustainable and recovered.

In short, some drainage population targets identified in the 1990 recovery plan have not been fully met, as the Rio Grande was inappropriately considered “essential” (see above) and the Missouri River drainage appears to be at carrying capacity and incapable of reaching the 2,100 target identified in the recovery plan. However, the inability to meet these drainage and sub-drainage targets have been offset by large increases in the Interior least tern populations within the Arkansas, Red, and Lower Mississippi Rivers, and by the discovery of numerous subpopulation segments throughout the Interior Basin that were either unrecognized or not occupied at the time of listing and recovery plan development, increasing the number of known breeding colonies from a few dozen at listing to more than 480 (Lott 2006, p. 10; also see Service 2013, pp. 31-33).

Recovery plan delisting criteria required the protection, enhancement, and restoration of essential Interior least tern breeding habitats (Service 1990, pp. 28-29). Beyond the identification of specific river reaches as “essential,” habitat parameters were not defined, nor were specific objective and measurable criteria for their protection identified. The recovery plan outlined several tasks to protect and enhance Interior least tern habitats, including managing water flows, modifying construction activities, and protecting all areas identified as “essential” across the species' range through acquisition, easements, or agreements (Service 1990, pp. 29-50).

Recovery tasks identified for managing water flows are primarily relevant to portions of the Missouri, Red, and Arkansas River drainages, which cumulatively encompass about 20 percent of the Interior least tern breeding population. The majority of the remainder of the species' range occurs along unimpounded sections of the Mississippi River not subject to flow management. Over the past two decades, protective flow management actions have been identified and incorporated by USACE Northwest Division into their Missouri River Bank Stabilization and Navigation Project and operations of the Missouri River Reservoir System, including seasonal reservoir flow management to reduce nesting mortalities, and for sandbar augmentation and modification, vegetation management, predation control, human restriction measures, and water-level management for reservoir nesting areas (USACE 2017a, pp. 139-143). In the Southern Plains, USACE Southwest Division civil works projects in the Arkansas, Canadian, and Red River systems within Arkansas, Oklahoma, and Texas use reservoir storage and operation to reduce flooding; minimize land bridging, predation, and human disturbance during Interior least tern nesting season; and enhance nesting habitats at other times of the year (USACE 2002, pp. 3-4; 2016, pp. 18-20). These water management practices have been adopted by the respective USACE Divisions and Districts as best management practices (BMPs) and with commitments to continue into the future regardless of the future status of the Interior least tern under the Act (USACE 2016, pp. 2, 24; 2018, pp. 4-13-4-17).

Recovery tasks for modifying construction activities within river channels have been successfully implemented across Interior least tern habitats that are managed under USACE programs in jurisdictional waters (categories of waters defined under the Clean Water Act (33 U.S.C. 1251 et seq. ) that include navigable waters, interstate waters, tributaries, impoundments, etc.). Construction practices critical to maintaining and protecting nesting habitats have been incorporated into USACE river management programs as standard operating procedures (SOPs) or BMPs, including construction timing and work zone buffers to avoid disturbance of nesting colonies, dike modifications to protect and maintain habitat values, and dredge material disposal methods beneficial to maintaining nesting sand bars and islands ( e.g., USACE 2013, pp. 69-72; USACE 2016, p. 21). Other SOPs and BMPs incorporated into USACE programs promote ecosystem productivity important to tern foraging, including articulated concrete mat design, use of hardpoints in lieu of revetment, and strategic placement of woody debris within channels ( e.g., USACE 2013, p. 71). These existing management strategies and programs (USACE 2013, entire; 2016, entire; 2017a, entire) are protective of waters and habitats managed by USACE that support about 80 percent of the Interior least tern's range and have been a major factor in the recovery of the species. All USACE programs currently provide for adaptive management into the future, independent of the Federal listing status of the Interior least tern (USACE 2013, p. 71; 2016, pp. 2, 24; 2018, pp. 4-13-4-17).

New information developed over the past three decades relative to the ecology of Interior least tern and its habitats indicate that recovery tasks to protect “essential” habitats across the species' range through acquisition or easements are neither cost-effective nor necessary. Riverine habitat for Interior least terns is not static, and clearly experiences dramatic local or regional annual (at times, daily) variation in location, quantity, and quality. Describing and quantifying habitat quality is difficult, given the wide variety of conditions the bird is known to exploit ( e.g., rivers, reservoirs, rooftops).

The Interior least tern adjusts to habitat variation and change over its range through metapopulation dynamics (Hanski and Gilpin 1991, entire; Lott et al. 2013, p. 3620; Lott and Sheppard 2017, entire). A metapopulation consists of a network of populations with similar dynamics that are buffered against extinction by abandoning areas as habitats degrade, and dispersing and exploiting suitable habitats as they become available. Therefore, the importance of specific habitat segments to the species is likely to change with time. Within large metapopulations of mobile species, small subpopulations (or colonies within subpopulations) may occur in habitats where recruitment is inconsistent or may not exceed mortality ( i.e., population sinks), but which are maintained by immigration from colonies where recruitment exceeds mortality ( i.e., population sources). While exploitation of anthropogenic habitats by Interior least terns may indicate a lack of suitable habitat in an area, it may also indicate an overall population or subpopulation expansion. Sink colonies also play important roles in large metapopulations by providing opportunities for range expansion, and/or redundancy from episodic stochastic impacts to preferred natural habitats. While some colony sites may be periodic or consistent population sinks, there is no evidence that they are detracting from the Interior least tern's rangewide survival ( e.g., Lott and Sheppard 2017a, p. 51), particularly in consideration of the substantial increase in the known number and size of tern colonies over the past two decades, and the expansion of the species' distribution outside of its historical range ( i.e., Illinois, New Mexico, central Texas, Colorado; see Service 2013, pp. 31-33).

Based upon this understanding of Interior least tern population dynamics and habitat use, the recovery task of protecting all areas identified in 1990 as “essential” across the species' range through acquisition or easements is not necessary for the conservation of the species. This conclusion is supported by the increase in the species' range and abundance over the past 30 years without protections achieved through such acquisition or easements. Although some Interior least tern nesting colonies occur on protected public lands such as National Wildlife Refuges, they represent only a small portion (less than 2 percent) of the rangewide population. Additionally, as noted above, existing management agreements, strategies, and programs within jurisdictional waters are protective of the habitats that support about 80 percent of the Interior least tern population (USACE 2013, entire; 2016, entire; 2017, entire).

While the majority (80 percent) of Interior least tern nesting colonies are known from jurisdictional waters with a strong Federal connection with navigation systems or reservoirs, the remaining nesting colonies occur along rivers with a more limited Federal nexus, or on mining and industrial sites adjacent to or near rivers and reservoirs. On about 10 percent of these, Federal, State, and/or private conservation partnerships have developed and implemented conservation agreements and management programs beneficial to Interior least tern as well as other at-risk or endangered species. These programs generally post or restrict access, control predators, and conduct monitoring during nesting season, as well as conduct vegetation control and public education as opportunities present.

In the Platte River drainage, the Tern and Plover Conservation Partnership was initiated in 1999, at the University of Nebraska, School of Natural Resources. This partnership consists of a group of State, industrial, Federal, and other cooperators having an interest in tern and plover conservation and management on and along the Platte, Loup, and Elkhorn Rivers, with emphasis on nesting areas associated with sand and gravel mines, lake shore housing developments, and dredging operations (University of Nebraska-Lincoln 2019, entire). Long-term management of Interior least tern habitats in the Platte River drainage is also assured by an adaptive management plan developed and implemented by a partnership of State and industrial water users in Nebraska, Colorado, and Wyoming under the Platte River Recovery Implementation Program (Platte River Recovery Implementation Program 2019, entire). This program, initiated in 1997, also targets management needs of the endangered pallid sturgeon ( Scaphirhynchus albus ) and whooping crane ( Grus americana ), and the threatened piping plover ( Charadrius melodus ). Since both programs target other listed species with similar habitat requirements, and the Interior least tern is State-listed as endangered, these conservation programs and efforts are expected to continue regardless of a change in the Federal status of this species.

Interior least tern management in the Wabash River drainage began with the 1986 discovery of a single nesting pair on Gibson Generating Station property, Gibson County, Indiana (Hayes and Pike 2011, entire; Mills 2018, pp. 2-5). This colonization led to site monitoring, predator control, and other protective measures, including vegetation control, water management, and habitat management and creation, resulting in increasing numbers of terns and expansion of nesting colonies to multiple sites on public and private properties in the vicinity (Hayes and Pike 2011, entire). In 1999, management was formalized by development of a habitat conservation plan, which was renewed and revised in 2004, 2011, and 2018, by Duke Energy Corporation (Hayes and Pike 2011, entire). The Indiana Nongame and Endangered Wildlife Program continues to coordinate conservation and monitoring efforts on industrial and river sites along the Wabash River by Duke Energy, the Service, and other Indiana Department of Natural Resources personnel and contractors (Mills 2018, p. 14). Since the Interior least tern may continue to be protected by the State of Indiana, management and monitoring is expected to continue to some degree, regardless of a change in the Federal status of species.

To various degrees, a number of additional small, localized, and often temporary breeding colonies of Interior least tern and their habitats have been managed, protected, and monitored at industrial, municipal, and reservoir sites under the Act's conservation (sections 6, 7(a)(1), and 10) or consultation (section 7(a)(2)) requirements. Managed sites have included coal mines ( e.g., Tanner and Hart 1998, entire), rooftops ( e.g., Boylan 2008, entire), and small reservoirs ( e.g., Nelson 2010, entire). Such efforts may or may not continue when the tern is delisted; however, it is also likely that the tern will continue to exploit small areas of suitable habitats as they are available and encountered in its range. While such populations contribute some small benefit to the rangewide redundancy and representation of the tern (see discussion of Population Trends, above), they cumulatively represent less than 2 percent of the summer nesting population and their success or failure within individual sites has little impact on the rangewide conservation status of the Interior least tern.

In summary, the expansion of the numbers and distribution of the Interior least tern, and its adaptation to and exploitation of anthropogenic habitats over the past several decades, indicate that the species is no longer conservation-reliant. Potential threats identified at the time of listing have been removed or ameliorated by conservation actions of multiple conservation partners, most principally the USACE, for more than 20 years. These actions have assisted in recovery of the species as reflected in the large number of individuals rangewide, stable to increasing drainage populations since listing, and a high number of self-sustaining colonies in 18 States. Furthermore, our partners in USACE Divisions and Districts within the range of the Interior least tern have cooperatively modified their programs to provide for the long-term management of nesting and foraging habitats for about 80 percent of the rangewide population of the species (USACE 2013, entire; 2016, entire; 2017, entire). Another 10 percent of the population is managed by State and private partnerships, which are expected to continue based upon State status and regulations. Regarding the remaining 10 percent of the population that nest in habitats with minimal or no management, while these areas contribute to redundancy and representation for the species, their success or failure within these sites is not essential to the continued existence of the Interior least tern.

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 or 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 of the Interior (Secretary) determines whether the species meets the 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.

We must consider these same five factors in delisting a species. We may delist a species according to 50 CFR 424.11(e) if the best available scientific and commercial data indicate that: (1) The species is extinct; (2) the species does not meet the definition of an endangered species or a threatened species; or (3) the listed entity does not meet the statutory definition of a species.

A recovered species is one that no longer meets the Act's definition of endangered species or threatened species. Determining whether a species is recovered requires consideration of the same five categories of threats specified in section 4(a)(1) of the Act. For species that are already listed as endangered or threatened, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following delisting or downlisting ( i.e., reclassification from endangered to threatened) and the removal or reduction of the Act's protections.

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 we 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.

In considering the foreseeable future as it relates to the status of the Interior least tern, we consider the factors affecting the species and historical abundance trends. Our period of record for monitoring the species and its associated habitat is over three decades, which, when combined with our knowledge of factors affecting the species, allows us to reasonably predict future conditions. We think it is reasonable to define the foreseeable future for the Interior least tern to be 30 years based on analysis of these factors and as presented in more detail under Future Conditions and Species Viability, below.

When the Interior least tern was listed as endangered in 1985, the identified threats (factors) influencing its status were the modification and loss of habitat and curtailment of range (Factor A), predation and disturbance of local colonies (Factor C), and the inadequacy of State or Federal mechanisms to protect its habitat at that time (Factor D). The following analysis, based on an assessment of the Interior least tern, evaluates these previously identified threats, any other threats currently facing the species, and those threats that are reasonably likely to affect the Interior least tern in the foreseeable future following the delisting and the removal of the Act's protections.

The primary threats identified for the Interior least tern in the 1985 final listing rule were associated with the destruction and modification of habitat due to channel engineering practices on large rivers of the Interior Basin ( i.e., damming, channelization, and channel stabilization) (50 FR 21784, May 28, 1985, pp. 21789-21790; Service 1990, pp. 22-23). Reservoirs had inundated hundreds of miles of historical or potential tern riverine habitat in many Mississippi River Basin drainages, and reduced sediment input into channels below dams had caused channel degradation, constriction, and loss of potential nesting habitats. Channelization, channel training structures (dikes), and bank stabilization in the Missouri, Mississippi, and Ohio Rivers prevented natural geomorphic response to loss of sediments, resulting in deepened and narrowed channels, and loss or terrestrialization (vegetation encroachment) of potential nesting sandbars and islands. Reservoir releases for hydropower, navigation, and flood control also were found to adversely affect Interior least tern populations surviving below these same dams (Service 1990, p. 22). These trends of habitat degradation were also expected to continue throughout most of the tern's fragmented range (Smith and Stuckey 1988, entire).

New information on the species' response to the threats identified at the time of listing indicate that anthropogenic changes in some river channels supporting the Interior least tern have also benefited the Interior least tern in ways that may have compensated for historical impacts to its habitat. For example, in the Lower Mississippi River (where tern numbers have increased by an order of magnitude, and which currently supports more than 60 percent of the Interior least tern nesting population), channel engineering, including the construction of channel training dikes, resulted in higher sandbars as well as earlier and shorter spring and summer high water events in this portion of the range (Schramm 2004, pp. 306, 322; USACE 2013, p. 60). Such changes have reduced egg and chick flood-related mortality events, extended the nesting season, and increased re-nesting opportunities, all of which may explain the Interior least tern population increase in the Lower Mississippi River over the past four decades.

Anthropogenic habitats are also now known to provide significant opportunities for Interior least tern nesting and recruitment. High flows in the Platte River have historically peaked after most nesting has been initiated within the river channel, flooding nests and hatchlings, and limiting re-nesting opportunities (Farnsworth et al. 2017, p. 3587). Models now suggest least tern nesting success would only have occurred during 32 percent of years, an inadequate success rate to have maintained the species within the Platte River. It is now hypothesized that off-channel mining habitats were, and continue to be, critical to the success of the Interior least tern in the central and lower Platte River (Farnsworth et al. 2017, p. 3588). Similar observations have been proposed for some reaches of the Missouri River ( e.g., Jorgensen 2009, entire). In Texas and Colorado, foraging and nesting habitats created by dam construction have provided for Interior least tern colonization of arid regions historically unsuitable for the species (Service 2013, pp. 26-27).

Although river channel engineering, including reservoirs, channelization, channel training structures, and bank stabilization, continues to alter the Interior least tern's habitats, as outlined above, these habitat modifications have also created additional habitat opportunities for this species. The Interior least tern's known range has increased significantly; the reported numbers of nesting Interior least terns have expanded by almost an order of magnitude from fewer than 2,000 in 1985, to approximately 18,000 in 2005 (Lott 2006, p. 10), and currently more than 480 Interior least tern colonies are known to occur in four major drainages with 16 primary subpopulations (Lott et al. 2013, pp. 3616-3617). Most of these subpopulations have been stable or increasing over the past two decades (Lott et al. 2013, p. 3620; Lott and Sheppard 2017a, pp. 51-52). Thus, the negative impacts of river channel engineering on the tern appear to have been initially overestimated.

Loss of some historical Interior least tern summer nesting habitat likely occurred on a local or regional scale prior to listing; however, we have found no evidence that nesting habitat loss is currently limiting the Interior least tern on a rangewide scale. The Interior least tern continues to nest in all habitat types and drainages identified in 1985, and there is no evidence of significant regional decline or extirpation from any drainage since listing (Service 2013, p. 10). As previously noted, the Interior least tern uses a variety of anthropogenic habitats such as navigation systems, reservoirs, sand mines, and so forth, allowing the Interior least tern to not only survive, but also to thrive in some drainages, and even expand its range into areas without historical records.

While future conditions within some portion of the Interior least tern's range may deteriorate due to natural or anthropogenic changes (for example, climate change may increase the likelihood of heavy rainfall events) or human demands ( e.g., water extraction or removal in the western plains), the wide range of the Interior least tern and its ability to relocate to areas with better conditions reduce the magnitude of any threat (see Effects of Climate Change, below). The Interior least tern is also well adapted to adjust to variability and changes in local habitat availability, quality, and quantity through metapopulation dynamics (see Habitat Criteria, above, for detail on metapopulation dynamics), enhanced by the species' longevity, dispersal capability, and ability to re-nest ( e.g., Lott et al. 2013, p. 3620; Lott and Sheppard 2017b, entire).

Interior least tern eggs, chicks, and adult individuals are susceptible to a wide variety of avian and terrestrial predators. During the 25-year monitoring period on the Missouri River, the greatest cause of egg loss has been predation (3 percent) (USACE 2017b, spreadsheet line 302). On the Mississippi River, predation was the second highest cause of Interior least tern egg, chick, and adult mortality (Smith and Renken 1993, pp. 41-42).

Interior least terns are adapted to avoid predation because: (1) Their eggs and chicks are cryptically colored to avoid detection; (2) chicks exhibit “freeze” behavior when threatened; and (3) adults cooperate in alarm calls and attack flights on potential predators to the colonies (Thompson et al. 1997, p. 11). Terns may also abandon and relocate colonies due to predation pressure (Atwood and Massey 1988, p. 394).

The level and effect of predation can be locally high and significant in some colonies and in some years; however, the Interior least tern's adaptation to high levels of predation is demonstrated by the exponential growth of rangewide breeding numbers since listing in 1985. Interior least tern are long-lived, and current population trends indicate that sporadic local breeding failure due to predation or other causes is natural, and unlikely to be significant to the long-term stability of the rangewide population.

The Interior least tern is covered by the Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703 et seq. ). The MBTA makes it unlawful, at any time and by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or eggs of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof (16 U.S.C. 703(a)). 16 U.S.C. 704(a) states that the Secretary is authorized and directed to determine when, to what extent, if at all, and by what means, the take of migratory birds should be allowed, such as for educational, scientific, and recreational purposes, and to adopt suitable regulations permitting and governing the take. In adopting regulations, the Secretary is to consider such factors as distribution and abundance to ensure that any take is compatible with the protection of the species.

Since the publication of the proposed rule to delist the Interior least tern (84 FR 56977; October 24, 2019), the Service published a proposed rule to adopt a regulation that defines the scope of the MBTA as it applies to conduct resulting in the injury or death of migratory birds protected by the MBTA (85 FR 5915; February 3, 2020). This proposed regulation, if made final, will define the scope of the MBTA's prohibitions to reach only actions directed at migratory birds, their nests, or their eggs, and take that is incidental to otherwise lawful activities would no longer be prohibited. Therefore, Federal agencies, industries, or private parties that have avoided or mitigated for incidental take to migratory birds due to MBTA prohibitions will no longer be required to do so. The MBTA will continue to protect migratory birds, their parts, nests, and eggs from intentional take and trade. We have reviewed this information and have evaluated the potential effects of these proposed changes on the Interior least tern. Incidental take is not currently a primary threat to the rangewide status of the Interior least tern, but there is the potential that with removal of the protections of the Act and the proposed regulation that defines the scope of the MBTA, incidental take may increase in some nesting areas. However, as noted herein under Habitat Criteria, above, USACE Divisions and Districts within the range of the Interior least tern have cooperatively modified their programs to minimize take of Interior least terns, and to provide for the long-term management of the nesting and foraging habitats across about 80 percent of the range of the species (USACE 2013, entire; 2016, entire; 2017, entire). USACE has also committed to continue consideration and management of the Interior least tern and its habitats following delisting, because maintaining viable populations of Interior least tern is in their interest, and that of all Federal agencies. More than 10 percent of the Interior least tern population consists of small to moderately sized colonies that are managed on Federal or State conservation lands, or under State and private partnerships, many of which are expected to continue management based upon environmental management objectives or State status and regulations. The Service, therefore, finds that should the proposed regulation that defines the scope of the MBTA be adopted, BMPs and SOPs to avoid incidental take of the tern will continue to be implemented across more than 90 percent of the species' range.

The remaining portion of the Interior least tern population consists of numerous, small, scattered, often ephemeral colonies nesting in habitats with minimal or no management. Such colonies without management commitments may be impacted by the proposed regulation that defines the scope of the MBTA. While these areas contribute in some small degree to redundancy and representation of the species, their success or failure within specific sites is not essential to the continued existence of the Interior least tern.

In summary, incidental take is not currently a primary threat to the rangewide status of the Interior least tern, but there is the potential that with removal of the protections of the Act and the proposed regulation that defines the scope of the MBTA, incidental take may increase on some nesting areas. Any adoption of proposed changes to reduce the scope of the take provisions of the MBTA is not likely to affect management commitments currently in place, which are expected to continue following delisting of the Interior least tern, as BMPs and SOPs to avoid incidental take of the tern will continue to be implemented across more than 90 percent of the species' range. We also believe that Federal and State agencies, as well as private industries and individuals, recognize that it is in the public interest to minimize the impacts of lawful activities to Interior least tern and other migratory birds, and the Service shall continue to work with them to do so.

When the Interior least tern was listed in 1985, the listing rule (50 FR 21784; May 28, 1985) noted that while the MBTA protected migratory birds from harm or harassment, it did not provide a mechanism to address habitat threats. It concluded, therefore, in the absence of protection under the Act, the MBTA and other existing regulatory mechanisms were inadequate to prevent deterioration to habitats of the Interior least tern due to channel engineering. As noted previously, however, the effects of channel engineering on the species may have been more beneficial than detrimental, at least in some portions of the range (see Habitat Loss and Curtailment of Range, above).

The protection, restoration, conservation, and management of ecological resources within the Interior least tern's range have been broadly enhanced through Executive Orders and Federal regulations since the species was listed. These include provisions emphasizing the protection and restoration of ecosystem function and quality in compliance with existing Federal environmental statutes and regulations ( e.g., under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ), Clean Water Act (CWA), and MBTA) and endorsing Federal efforts to advance environmental goals. Water resources authorizations have also enhanced opportunities for USACE and other Federal agency involvement in studies and projects to specifically address objectives related to the restoration of ecological resources ( e.g., section 1135 of the Water Resources Development Act of 1986, as amended, 33 U.S.C. 2201 et seq. ) since the Interior least tern was listed.

Executive Order (E.O.) 13186 (Responsibilities of Federal Agencies to Protect Migratory Birds; 66 FR 3853, January 17, 2001) requires all Federal agencies to use their authorities and conduct their actions to promote the conservation of migratory bird populations. Actions authorized by E.O. 13186 include: (1) Avoiding and minimizing adverse impacts to migratory birds; (2) habitat restoration and enhancement, and preventing pollution or detrimental alteration of migratory bird environments; (3) designing habitat and population conservation principles, measures, and practices into agency plans and planning processes; (4) promoting research and information exchange, including inventorying and monitoring; and (5) ensuring full consideration under NEPA of migratory birds such as the Interior least tern. These concepts have been incorporated by the USACE into its Environmental Operating Principles (Bridges et al. 2018, entire; USACE 2019, entire), and are being implemented within the jurisdictional waters inhabited by the Interior least tern. In the absence of the Act's protections, E.O. 13186 and USACE operating principles and programs will continue to provide for protection and management of the Interior least tern and its habitats (see Habitat Criteria, above).

The Civil Works Ecosystem Restoration Policy of 1999 (CWERP) (USACE ER 1165-2-501) identifies ecosystem restoration as one of the primary missions of the USACE Civil Works program. This policy requires a comprehensive examination of the problems contributing to ecosystem degradation, and the development of alternative means for their solution, with the intent of partially or fully reestablishing the attributes of a naturalistic, functioning, and self-regulating system.

Implementation of actions authorized under E.O. 13186 and CWERP are discretionary, and contingent upon opportunity and annual appropriations and other budgetary constraints. However, many Federal action agencies now have an extensive history of managing and restoring Interior least tern habitats (some more than two decades) in compliance with non-discretionary requirements of section 7(a)(2) of the Act (in the Missouri, Red, Arkansas, and middle Mississippi Rivers), as well as discretionary components of section 7(a)(1) of the Act, E.O. 13186, and CWERP (in the Lower Mississippi River). As a result, many conservation measures have become standard operating practices (see Recovery Criteria, above).

Interior least terns are listed as endangered in 16 of the 18 States where they occur: Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Mexico, South Dakota, Tennessee, and Texas. Many of the States noted above actively manage Interior least terns, including seasonal posting to prevent disturbance of nesting areas ( e.g., Kentucky, Kansas); facilitating cooperative partnerships to protect and manage the bird ( e.g., Nebraska, Indiana); developing State management plans for the Interior least tern ( e.g., South Dakota; Aron 2005, entire); conducting site-specific research ( e.g., Mississippi); and participating in multi-agency planning, management, and monitoring programs ( e.g., Missouri River Recovery Implementation Committee).

The removal of the species from Federal protection might prompt some States to remove the Interior least tern from their endangered species lists. Regardless of Federal status, most State laws protect native wildlife (including the Interior least tern) from take and require State permits, in addition to Federal permits, to collect, harm, or harass migratory bird species, such as the Interior least tern.

Activities that may adversely affect the Interior least tern and/or its habitats will also continue to be subject to numerous regulatory mechanisms, including the MBTA, CWA, Fish and Wildlife Coordination Act (FWCA; 16 U.S.C. 661 et seq. ), and NEPA. Federal actions to conserve and enhance Interior least tern habitats are now authorized by Executive Orders and Federal regulations enacted since the Interior least tern was listed in 1985. Additionally, post-delisting habitat management commitments by USACE encompass about 80 percent of the Interior least tern population (see Recovery Criteria, above). Therefore, we conclude that the existing regulatory mechanisms are adequate to protect the Interior least tern and address stressors to this species absent protections under the Act.

The distributions of many terrestrial organisms, including birds, are shifting in latitude or elevation in response to climate warming (Chen et al. 2011, pp. 1024-1025). Although population declines, apparently in response to climate change effects, have been reported for long distance migrant bird species in both Europe and North America, the negative effects of climate change at one life or migratory stage may be compensated at another stage, e.g., by increased survival or reproduction on winter or breeding grounds (Knudson et al. 2011, p. 9).

The ability of migratory birds to cope with rapid climate change effects depends upon the rate of their adaptive response to the changes (Knudson et al. 2011, p. 12). Phenotypic plasticity ( i.e., the ability to shift dates of migration, breeding, fledgling, etc.) may allow rapid adaptation to climate change effects in some species (Charmantier et al. 2008, entire). While there is little information available on Interior least tern phenology (life cycle events and how they are influenced by climate variation), their adaptations to habitats controlled by stochastic events, along with high mobility and use of anthropogenic habitats, indicate that they will be resilient to predicted effects of climate changes.

Most climate change models predict increased extreme weather events ( i.e., floods and droughts) throughout the Interior least tern's breeding range (Lubchenco and Karl 2012, pp. 33-36). In the absence of clear knowledge of Interior least tern wintering distributions, potential effects of climate change on the bird when it is away from its breeding range are unknown. The Interior least tern is well adapted to cope with extreme hydrologic changes, and its habitat and productivity are closely tied with stochastic weather events. For example, while extreme floods may result in annual recruitment loss, such events are also the primary factor in creating, scouring, and maintaining high-quality sandbars where Interior least terns nest (Sidle et al. 1992, p. 134). On the other hand, extreme drought events that connect nesting islands to the mainland and result in increased predation of some Interior least tern colonies may be offset by higher abundance of available nesting areas, increased dispersal of reproductive efforts, and higher local recruitment rates of some colonies during low flow periods. Rooftop nesting birds are susceptible to catastrophic recruitment failure due to high summer temperatures (see Watterson 2009, pp. 23-24; Nupp and Petrick 2010, pp. 5-7), and colonies on natural habitats may also become negatively affected by increasing summer temperatures. However, Interior least terns are dispersed along a wide latitudinal and longitudinal gradient of climate conditions and are unlikely to experience rangewide catastrophic recruitment failure due to high summer temperatures. Therefore, while Interior least tern colonies may be locally or regionally affected by changes in frequency and duration of extreme flood events and droughts, or high temperatures, the dispersal of the Interior least tern over a wide geographical area encompassing a variety of latitudinal and longitudinal gradients, its long life, and its ability to move long distances indicate the tern's resilience to future patterns of predicted effects of climate change (Lott et al. 2013, p. 3623).

Habitat destruction and fragmentation may reduce the likelihood of species surviving the effects of climate change, in part because smaller habitat patches sustain smaller populations (Hof et al. 2011, p. 2990). Habitat fragmentation can also impede the dispersal ability of species (Hof et al. 2011, pp. 2989-2990). While the Interior least tern has possibly been affected by loss of significant reaches of riverine habitat such as the lower Missouri River and lower Red River, it has also increased its longitudinal range by exploiting anthropogenic habitats such as reservoirs in central Texas, Colorado, and the Rio Grande, industrial sites in the Wabash River, and coal mines in Texas. Additionally, known population size has also increased by an order of magnitude since the range became fragmented, and genetic studies have demonstrated connectivity via gene flow within Interior least tern populations and between other least tern populations ( i.e., California least tern and eastern least tern; Whittier et al. 2006, p. 179).

Invasive salt cedar and willow growth, decreases in annual rainfall, and overuse and depletion of aquifers, coupled with increased human water demands, are occurring in the Southern and Northern Plains rivers, possibly to the future detriment of Interior least tern habitat and forage availability in those drainages. However, increases in impervious surfaces ( e.g., artificial structures or compacted soils associated with human developments) may offset the negative effects of climate change in some watersheds, while human demands such as urban or industrial use, and irrigation, could either offset or exacerbate climate change effects in others (Caldwell et al. 2012, p. 2854). Based on current data, the wide longitudinal and latitudinal distribution of the Interior least tern will likely offset any potential localized or regional reduction in habitat quantity or quality, at least in part, by new opportunities in other portions of its range.

Starvation of California least tern chicks has been reported due to the detrimental effects of El Niño on fish abundance (Massey and Fancher 1989, p. 354; Massey et al. 1992, p. 980). Decreased fish prey availability has been locally linked to reduced Interior least tern egg weights, clutch size, and chick weights, and may have influenced chick survival and fledgling rates (Dugger 1997, pp. 94-95). Declines in fish prey have been noted on the Missouri River (Stucker 2012, p. 21) and in some years on the Mississippi River (Dugger 1997, pp. 113-114). Fish prey abundance has also been linked to cyclic river conditions ( e.g., river stage during nesting season; Dugger 1997, p. 26). However, Interior least terns are strong flyers and capable of exploiting a large variety of aquatic habitats and fish species, including exotic species that may invade rivers such as Asian carp. These characteristics, coupled with the bird's long life, its ability to re-nest, and its ability to relocate to more productive areas, enable it to cope with local periodic cycles of low fish prey abundance.

Thompson et al. (1997, pp. 15-17) and others have documented the mortality of least tern eggs, chicks, and adults due to a number of additional factors, including flooding of nesting areas during heavy summer rains and high water events, exposure to pesticides and other contaminants (of coastal least tern; Jackson and Jackson 1985, p. 58), burial of eggs by sand, hailstorms, heat, cold, sand spurs (a common grass in this habitat with prickly burrs that stick to passing animals), fire ants, fireworks, airboats, off-road vehicles (ORVs), and human recreationists. Cattle trampling of Interior least tern eggs and chicks has been documented in the Red River (Hervey 2001, pp. 7-8). Nupp (2012, pp. 7-8) documented mortality of eggs and chicks from heat exposure in rooftop colonies.

Sampling for contaminants in Interior least terns has been concentrated in the Missouri River drainage, where sub-lethal amounts of arsenic, mercury, chlorinated hydrocarbon, selenium, and polychlorinated biphenyl (PCBs) have been documented in individuals (Fannin and Esmoil 1993, pp. 153-157; Ruelle 1993, pp. 162-170; Allen et al. 1998, pp. 358-364); however, no incidences of death or decreased fitness of Interior least terns due to contaminants have been reported to date.

ORV impacts have been documented in most drainages where Interior least terns nest (Red, Mississippi, Arkansas, Ohio, and Missouri River drainages). However, ORV access to nesting areas occurs only occasionally because it is usually limited to situations where low flow conditions allow such access. While other threats ( i.e., sandstorms, hail storms, heat, cold, sand spurs, fire ants, fireworks, airboats, etc.) may increase in frequency and severity in some portions of the Interior least tern's range, most are site-specific and sporadic, or otherwise limited in scope.

Interior least tern mortality occurs locally throughout the range due to a variety of natural or manmade factors. However, the wide distribution of the species, its current high numbers, its long life span, and its ability to relocate and re-nest make the Interior least tern resilient to occasional or periodic local sources of mortality, as well as potential effects of climate change. The increase in range and population size since 1985 indicates that sources of mortality to localized colonies are compensated by these traits of resiliency, as well as by the potential of high recruitment rates in other Interior least tern colonies or populations.

Our analysis has identified no rangewide threats or stressors with significant effects to all breeding colonies or subpopulations. Monitoring data show some breeding colonies or subpopulation segments may decline or relocate due to localized stressors ( e.g., predation, disturbance), regional stressors ( e.g., droughts, floods), or their cumulative effects. Variations in colony locations, size, or subpopulation densities, however, are a characteristic of metapopulation dynamics, and have not been shown to threaten the rangewide status of the Interior least tern over an extended area. Additionally, the increases documented in the abundance and distribution of the Interior least tern, since it was listed in 1985, do not support a conclusion that any of these stressors cumulatively pose a threat to the Interior least tern.

Species viability, or its ability to survive long term, is related to its ability to withstand catastrophic population and species-level events (redundancy), to adapt to changing environmental conditions (representation), and to withstand disturbances of varying magnitude and duration (resiliency). The viability of a species is also dependent on the likelihood of new stressors or continued threats now and in the future that act to reduce a species' viability.

Redundancy of populations is needed to provide a margin of safety for a species to withstand catastrophic events. Current information and observed trends since the species was listed in 1985 indicate that redundancy of the Interior least tern is currently ensured by the existence of hundreds of breeding colonies in multiple drainages across a wide latitudinal and longitudinal range (see Current Distribution and Abundance, above), and within a variety of natural and anthropogenic habitats (see Nesting Habitat and Behavior, above).

Representation is the ability of a species to adapt to both near-term and long-term changes in its physical ( e.g., climate conditions, habitat conditions, and habitat structure) and biological ( e.g., pathogens, competitors, and predators) environments. We can gauge representation by examining the breadth of genetic, phenotypic, and ecological diversity found within a species and its ability to disperse and colonize new areas. For the ILT, we evaluated representation across a breadth of historical ecological settings, and through preservation of the genetic diversity of the species. The Interior least tern was historically known from, and continues to occur in, two main natural habitat types: Large river sandbars and salt plains. While the salt plains populations were and continue to be historically localized in small portions of the Southern Plains, the sandbar populations occurred across a large latitudinal and longitudinal gradient, encompassing multiple river and stream orders, and a wide variety of climatic conditions. Little evidence of genetic structure has been found within the Interior least tern population (Draheim et al. 2010, p. 813), indicating high genetic connectivity between drainage subpopulations. There also appears to be high genetic connectivity between California, Interior, and eastern least terns (Draheim et al. 2010, p. 816). For these reasons, the Interior least tern appears to have adequate genetic and ecological representation to allow for adaptability to environmental changes.

Resiliency allows a species to recover from periodic or occasional disturbance. Resilience of individual and mated terns is demonstrated by their ability to relocate and re-nest when habitat conditions deteriorate, or when disturbance by humans or predators becomes severe. Interior least tern metapopulation dynamics allow subpopulations and colonies to respond to changing habitat conditions, including their ability to exploit a variety of anthropogenic habitats that were not historically available (Lott et al. 2013, p. 3623). This resilience is augmented by the long life span and strong flight abilities of Interior least terns, and by the prospecting behavior (exploratory dispersal) of young birds across the landscape (Boyd and Thompson 1985, p. 405; Lott 2012, p. 12; Shigeta in litt. 2014, entire).

In addition to this review of redundancy, representation, and resiliency, which indicates a high likelihood of future viability for the Interior least tern, the Service worked with multiple partners to develop a habitat-driven, rangewide population model for the tern in order to consider status and population dynamics with and without continued management at local, regional, and rangewide scales (Iglay et al. 2012, entire; Lott and Sheppard 2017a, b, entire). The model, known as TernPOP (Lott and Sheppard 2017a, b, entire), applied simulation analyses that were designed to explore stakeholder-defined scenarios of potential future habitat change or changes in management. Fifty-five discrete scenarios spanned the geographic range of the Interior least tern and covered the topics of (1) sandbar nesting habitat loss, (2) habitat degradation, (3) changes in predator management programs, and (4) deliberate efforts to create mid-channel nesting sandbars for the tern. All 55 scenarios were evaluated relative to a “No Action” scenario. Thirty replicates of the model were run for 30 years, and population growth (or decline) rates were calculated for each replicate (and then averaged across replicates) at the spatial scales of scenario area, subpopulation, drainage population, and the entire listed population of the Interior least tern. Nearly all scenarios of regional management or habitat loss, even some viewed as implausible in the foreseeable future ( e.g., loss of 50 percent of all sandbars on the Lower Mississippi River), had minimal effects on population growth rates calculated across the 30-year period at the spatial scales of subpopulation, population, and range (Lott and Sheppard 2017b, pp. 42-61). In most cases, severe habitat degradation in even relatively large areas was insufficient to change the baseline population increases observed during “No Action” scenarios to population declines, beyond very local areas. Therefore, quantitative evaluation of population model outputs are similar to and support prior qualitative observations that Interior least tern populations are resilient to many potential changes in habitat conditions across their large river network (Lott et al. 2013, pp. 3622-3623; Lott and Sheppard 2017b, pp. 59-62).

Based upon the analysis presented above, the Interior least tern cannot be considered to be conservation-reliant, because it has shown to be able to adapt to and exploit substantial habitat changes throughout its range. Although some (10 percent) local colonies and peripheral population segments of the Interior least tern may require management for long-term persistence, their success or failure within individual sites is not essential to the continued existence of the Interior least tern. Viability of the Interior least tern is assured by its resilience, representation, and redundancy throughout the remainder of its range. The Interior least tern will continue to be conserved by habitat management programs in more than 80 percent of its range (see Habitat Criteria under Recovery Criteria section, above).

In our proposed rule published on October 24, 2019 (84 FR 56977), we requested that all interested parties submit written comments on the proposal by December 23, 2019. We also requested public comments on the draft post-delisting monitoring (PDM) plan. We contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. A newspaper notice inviting general public comment across the range of the species was published in USA Today on October 28, 2019. We did not receive any requests for a public hearing.

During the comment period, we received 25 letters or statements addressing the proposed action. These included comments from 2 peer reviewers, 4 State agencies in three States, 1 Federal agency, 1 nongovernmental organization, and 17 individuals. All comments are posted at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0082.

In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” which was published on July 1, 1994 (59 FR 34270) and our August 22, 2016, Director's Memorandum “Peer Review Process,”, we solicited expert opinions from seven knowledgeable individuals with scientific expertise that included familiarity with this species, the geographic region in which it occurs, and conservation biology principles. We received responses from two peer reviewers.

The peer reviewers expressed support for the proposed delisting and generally agreed with our analysis in the proposed rule. Both expressed concerns with our PDM plan, particularly the 5-year time period. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

We reviewed all comments for substantive issues and new information regarding the Interior least tern. Substantive comments we received during the comment period are addressed below and, where appropriate, are incorporated directly into this final rule. The majority of comments were related to the draft PDM plan and not the decision to delist the Interior least tern.

(1) Comment: Both peer reviewers and a nongovernmental organization commented that the Interior least tern population increase and the achievement of the recovery goal are partially attributable to improved and increased survey efforts. One of the peer reviewers suggested that the Interior least tern abundance data used at the time of listing were in error, and that should be considered as a reason for delisting.

Our Response: The reported increase in rangewide numbers since the Interior least tern was listed is partially attributable to increased survey efforts over a wider geographical range and, in some areas, improved survey techniques. This conclusion was stated in our 2013 5-year review of the Interior least tern (Service 2013) and in several places in our October 24, 2019, proposed delisting rule (84 FR 56977; see Population Trends under Species Information (p. 84 FR 56981) and Numerical Population Target s under Recovery (p. 84 FR 56982)). In addition, we also acknowledged the hypothesis that some proportion of the increase in rangewide least tern counts within the Interior Basin may be attributable to immigration of least terns from the Gulf Coast. We have retained these statements in those discussions in this final rule, and we have added an additional clarifying statement under Population Trends.

When the Interior least tern was listed as endangered (50 FR 21784; May 28, 1985), we acknowledged the difficulty in assessing population size of a species with a widely scattered distribution and poorly known historical trends. At that time, the best available information, including multiple surveys conducted over the previous decade, indicated a significant decline in the range of the Interior least tern, low population numbers, low reproductive success, and significant threats to remnant breeding habitats. This conclusion was endorsed, and listing was supported by 13 State wildlife or conservation agencies within the range of the species. While the Interior least tern may have been more abundant and widespread than recognized at the time the species was listed, the best available scientific and commercial information supported our decision to list this species as endangered under the Act, and there is no evidence that the original data used at that time were in error.

(2) Comment: One peer reviewer and a nongovernmental organization commented that the Service used limited and flawed information (Jorgensen 2009, entire; Farnsworth et al. 2017, entire) to minimize the importance of the Missouri and Platte Rivers in the recovery of the Interior least tern. They stated that the Service overlooked that both studies were conceptually and analytically problematic, and that editorials identifying key shortcomings were subsequently peer-reviewed and published in the same journals (Caitlan et al. 2010, entire; Alexander et al. 2018, entire). They expressed concern that the use of this information reverses the Service's decades-long position that naturally flowing and dynamic river systems are critically important to the Interior least tern, other listed species, and the ecosystems as a whole.

Our Response: In our proposed delisting rule (84 FR 56977; October 24, 2019) and this final rule, we have cited Jorgensen (2009, entire) and Farnsworth et al. (2017, entire), under Habitat Loss and Curtailment of Range, as examples that some anthropogenic activities are known to provide significant opportunities for Interior least tern nesting and recruitment, contributing to the population and range expansion of the species even within highly modified river systems. Neither of these commenters discounted the importance of anthropogenic habitats to tern recruitment in either the Platte or Missouri River.

Farnsworth et al. (2017, entire) used historical hydrological and channel geometry data from a specific reach of the Platte River to suggest that the timing of seasonal flooding of low sandbars was not conducive to Interior least tern and piping plover recruitment success. This study also noted that anthropogenic habitats created by sand and gravel mines adjacent to the Platte River have been important in maintaining stable populations of these two birds within this system. Jorgensen (2009, entire) conducted a similar analysis for a short reach of the Missouri River in Sioux City, Iowa, concluding that off-site recruitment was important to tern and plover presence within this reach of the river. Caitlan et al. (2010, entire) and Alexander et al. (2018, entire) stated that the Jorgensen and Farnsworth et al. studies, respectively, were flawed and diminished the importance of natural river habitats to the ecology of the birds.

When developing the proposed delisting rule, we were aware of the Caitlan et al. (2010, entire) and Alexander et al. (2018, entire) published editorials critiquing the Jorgensen and Farnsworth et al. studies. We were also aware that these critiques had been directly addressed by responses from the original authors clarifying semantic misinterpretations and including additional supporting information (Jorgensen 2010, entire; Farnsworth et al. 2018, entire). Both responses were accepted as closure of the identified issues within the same journals that the original articles and editorials were published.

We have not used this information (Jorgensen 2009, entire; Farnsworth et al. 2017, entire) to discount or diminish the importance of natural riverine habitats to the tern or the ecosystem, but rather as supporting evidence of the resiliency of the Interior least tern relative to its ability to adapt to and exploit some anthropogenic changes to its habitats. Natural and anthropogenic habitats in both the Platte and Missouri Rivers continue to be important components of the greater Interior least tern metapopulation.

(3) Comment: In their critique of the use of Farnsworth et al. (2017, entire) and Jorgensen (2009, entire), one peer reviewer and a nongovernmental organization stated that the Service did not consider the role of metapopulation dynamics in the use of anthropogenic habitats by Interior least terns in the Platte River. They noted that off-river anthropogenic habitats such as sand and gravel mines may not be sustainable and evolving mining practices may reduce the amount and quality of such habitats in the future.

Our Response: Under Habitat Criteria and elsewhere in the proposed delisting rule (84 FR 56977; October 24, 2019) and this final rule, the Service discusses the role and importance of metapopulation dynamics in the current and future distribution and resilience of the Interior least tern. We find the information presented in the referenced studies is important to understanding the role of past and future habitat conditions in the Platte and Missouri Rivers to the metapopulation dynamics of the Interior least tern.

Metapopulation dynamics allow species to exploit habitats that may change rapidly in abundance and/or quality and aid the re-establishment of extirpated populations. Both natural and anthropogenic least tern nesting habitats can be transitional in availability or quality. Some breeding colonies or subpopulation segments have declined or relocated due to localized stressors ( e.g., predation, disturbance), regional stressors ( e.g., droughts, floods), habitat changes ( e.g., vegetation encroachment, reservoir management, mine closures), or their cumulative effects (Kirsch and Sidle 1999, p. 475; Service 2013, pp. 13-27). Resulting variations in tern colony locations, sizes, or subpopulation densities are a characteristic of metapopulation dynamics, and such declines have been offset by increases in other colonies or population segments (Lott and Sheppard 2017a, pp. 50-52). While future changes in mining practices within the Platte River drainage may affect their use by Interior least terns, metapopulation dynamics allow the birds to find and use other suitable habitats within or outside of the drainage for nesting.

(4) Comment: One peer reviewer and a nongovernmental organization commented that the Service failed to reference or acknowledge changes to the Migratory Bird Treaty Act (MBTA) directed by the M-Opinion and encouraged the Service to evaluate the consequences relative to the Interior least tern.

Our Response: After the publication of our October 24, 2019, proposed delisting rule, the Service published a proposed rule to adopt a regulation that defines the scope of the MBTA as it applies to conduct resulting in the injury or death of migratory birds protected by the MBTA (85 FR 5915; February 3, 2020). This proposed regulation, if made final, will define the scope of the MBTA's prohibitions to reach only actions directed at migratory birds, their nests, or their eggs, and take that is incidental to otherwise lawful activities would no longer be prohibited. This position is consistent with the Solicitor's Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take, issued December 22, 2017. We have reviewed this information and have evaluated the potential effects of these proposed changes on the Interior least tern. Our analysis is presented above under Existing Regulatory Mechanisms. In summary, incidental take is not currently a primary threat to the rangewide status of the Interior least tern, but there is the potential that with removal of the protections of the Act and these proposed regulatory changes defining the scope of the MBTA, incidental take may increase in some nesting areas. However, as described above, should the proposed changes be adopted, BMPs and SOPs to avoid incidental take of the tern will continue to be implemented across more than 90 percent of the species' range ( e.g., USACE 2013, entire; 2016, entire; 2017, entire; see Habitat Criteria, above). Therefore, the adoption of proposed regulatory changes to limit the scope of the take provisions of the MBTA are not likely to affect management commitments currently in place, which are expected to continue following delisting of the Interior least tern.

(5) Comment: Both peer reviewers, along with the States of Oklahoma and Colorado, a nongovernmental conservation agency, and several other public commenters stated that the duration of PDM plan is inadequate and recommended modifying the duration to include monitoring every third year for a period of 15 years. They noted that the Interior least tern may have a lifespan of 15 to 20 years; therefore, limiting PDM to 5 years may not be sufficient to track population fluctuations after delisting.

Our Response: Following delisting, the Act requires us to effectively implement a monitoring system for a minimum of 5 years in cooperation with the States that are within the range of the Interior least tern. To fulfill the PDM requirement, we developed a draft PDM plan for the Interior least tern and coordinated review of the plan with the State agencies, USACE Districts and Divisions, other Federal agencies, and various nongovernmental organizations. We acknowledge that sustaining PDM efforts can be challenging and subject to competing priorities for available resources. Nonetheless, we designed the draft PDM plan that was realistic given limited resources. However, given the comments we received on the duration of the draft PDM plan, we will continue to work with our conservation partners to ensure development and implementation of an effective, final PDM plan, with an appropriate duration, for the Interior least tern.

While section 4(g)(1) of the Act requires us to implement a system in cooperation with the States to effectively monitor the status of any species that have been recovered and removed from the List(s), it does not require the development of a formal PDM plan prior to removing the species from the List, or at any point. The Service and States have wide latitude in implementation of this provision. In the absence of a final PDM plan, monitoring, with surveys continuing in 2021, is expected to continue for more than 80 percent of the Interior least tern population due to management commitments by the USACE and the States. However, we generally desire to follow a written planning document to provide for the effective implementation of section 4(g), and we intend to do so here. We will notify the public of the final PDM plan on our website, https://www.fws.gov/mississippiES/ , after coordination with our partners and when it becomes available.

(6) Comment: One peer reviewer expressed concern that the potential of increased frequency and duration of flooding due to climate change was not addressed in the PDM plan. This peer reviewer also believes that there should be a mechanism in the plan for the Service to intervene if there are continued or recurrent flooding events.

Our Response: The purpose of PDM is to track the post-delisting status of the Interior least tern to ensure that it remains secure from risk of extinction following removal from the List. While the draft PDM plan does not identify a specific mechanism to intervene following flood events, it identifies actions that may be taken should monitoring indicate a substantial decline in the Interior least tern's population numbers or distribution. These actions include meeting with conservation partners, extending the monitoring period, modifying monitoring practices, initiating a rangewide status assessment, or relisting the Interior least tern, if warranted. As stated above under Our Response to (5) Comment, we will continue to work with our conservation partners to develop and implement an effective, final PDM plan for the Interior least tern that includes an appropriate duration and purpose to detect trends.

(7) Comment: One peer reviewer asserted that in parts of the species' range some degree of human intervention will be needed for continued success and that an assessment of habitat management should be part of the PDM plan.

Our Response: The Interior least tern's adaptation to, and exploitation of, anthropogenic habitats over the past several decades indicate that the species is no longer considered conservation-reliant and is recovered. However, we assessed the adequacy of habitat management commitments relative to recovery of the tern in our proposed delisting rule (84 FR 56977; October 24, 2019) and this final rule, finding that conservation actions and management by multiple conservation partners, most principally the USACE ( e.g., USACE 2013, entire; 2016, entire; 2017, entire), will continue following delisting. Many conservation programs and commitments incorporate components of adaptive management, which provide for periodic assessment of habitat management actions relative to effects on the Interior least tern (see Habitat Criteria, above, under Recovery Criteria). As noted in the draft PDM and the proposed delisting rule, management commitments by USACE alone currently encompass about 80 percent of the Interior least tern breeding population, including large portions of the Mississippi, Red, Arkansas, and Missouri Rivers.

As stated above under Our Response to (5) Comment, we will continue to work with our conservation partners to develop and implement an effective, final PDM plan for the Interior least tern that includes an appropriate duration and purpose to detect trends.

(8) Comment: One peer reviewer expressed concerns that the inclusion of the Arkansas River as part of the Mississippi River subpopulation in the PDM plan dilutes the importance of the Arkansas River. This reviewer suggested subdividing the four major subpopulations to ensure that recovery is truly rangewide.

Our Response: This comment refers to a map under “Methods” in the draft PDM plan showing the wide distribution of the tern, as well as the multiple habitats used as nesting areas. In the referenced map, Interior least tern subpopulations were defined by Lott et al. (2013, entire) based upon observed least tern dispersal movements relative to distance between nesting colonies. Based upon this analysis, the Lower Mississippi, Arkansas, Cimarron, and Canadian Rivers constitute one of four relatively continuous subpopulations. The identification of subpopulations does not reduce the importance of any geographical portion of a species' range, particularly as movement and population numbers relate to metapopulation dynamics. Additionally, the USACE Southwestern Division (SWD) Districts, who monitors the Arkansas River along with portions of the Red and Canadian Rivers, has committed to continue this monitoring post-delisting as appropriations allow.

(9) Comment: One peer reviewer expressed concern that the PDM plan does not assess productivity of Interior least terns.

Our Response: Within the Interior least tern metapopulation, measurements of productivity within individual colonies may be masked by movements between colonies or even drainages, depending upon habitat conditions. Attempts have been made to assess tern productivity at various locations ( e.g., some Missouri River colony clusters, Platte River, Mississippi River sites, Wabash industrial sites); however, annual tern counts show little relation to previous year measurements of nest success, fledgling ratios, or annual recruitment. Therefore, we did not include assessment of Interior least tern productivity in the draft PDM plan.

As noted in the draft PDM plan, rangewide PDM of the Interior least tern relies upon continuation of existing monitoring programs throughout the birds' extensive range. Monitoring methods have been, and will continue to be, at the discretion of each program, provided that they meet the minimum survey requirements in the PDM plan to record the location of breeding colonies (two or more birds) and make counts of adults present at the time the colonies are surveyed. Any additional efforts are at the discretion of the local program.

(10) Comment: One peer reviewer characterized the PDM plan as providing a 10,000 bird “population target” and indicated such an approach appears to be arbitrary. The peer reviewer suggested that the Service might identify a percentage decline, as opposed to a specific number, to initiate further monitoring, or that the population model developed by the Service and the USACE (TernPOP) might be used to generate a target number based on chance of long-term persistence.

Our Response: The 10,000 birds referenced in the draft PDM plan is not meant to be a population target, but rather, a threshold to review significance, methods, and potential threats with States and other collaborators before numbers might fall below the recovery objective (7,000 birds). Tern counts are not static or consistent, and there has always been high variability (15 percent or more) between annual counts at local, regional, and rangewide population levels over the period of record (35 years). Even so, the rangewide counts, as well as some subpopulations and colonies, have shown a general increasing trend over this same period.

As we noted in the proposed delisting rule (84 FR 56977; October 24, 2019) under Future Conditions and Species Viability, we developed TernPOP as a habitat-driven, rangewide population model to consider scenarios of status and population dynamics at multiple scales, with and without management, and with different scenarios of habitat loss. TernPOP is not designed to generate any target number based on long-term persistence. Local and regional Interior least tern numbers and success are generally driven by habitat. Nearly all scenarios of regional management or habitat loss had minimal effects on population growth rates calculated across a 30-year period at the spatial scales of subpopulation, population, and range.

(11) Comment: One peer reviewer expressed that the PDM plan should identify an action plan to quickly respond to any decline in numbers or productivity of the Interior least tern. The quick action plan should assess the causes of decline and direct resources for recovery.

Our Response: Because we have a 35-year record of increase for the tern, the objective of the draft PDM plan is to ensure that populations of the species do not decline once the Act's protections have been removed. As noted under Our Response to (10) Comment, above, we identified a conservative rangewide count number to initiate inquiry with Federal, State, and other collaborators into whether any observed decline in tern counts is real or an annual variation, and/or to investigate any potential causes of decline.

Section 4(b)(5)(A)(ii) of the Act states that the Secretary must give actual notice of a proposed regulation under section 4(a) to the State agency in each State in which the species is believed to occur and invite the comments of such agency. Section 4(i) of the Act directs that the Secretary will submit to the State agency a written justification for his or her failure to adopt regulations consistent with the agency's comments or petition. We solicited comments from the 18 States within the summer breeding range of the Interior least tern. The States of Oklahoma, Colorado, and New Mexico responded with concurrence for the delisting action; however, the States of Oklahoma and Colorado expressed concern that the duration of PDM was inadequate to determine trends in this long-lived species (see Our Response to Comment (5), above).

(12) Comment: One commenter observed that, while the Interior least tern may warrant delisting due to its population increase along the Mississippi River, its numbers have continued to decline in most other river systems within its range.

Our Response: Annual changes in relative abundance of colonies or subpopulations of a metapopulation may fluctuate widely on an annual basis. In the proposed delisting rule (84 FR 56977; October 24, 2019), we presented information that most Interior least tern subpopulations have been stable or increasing over the past two decades. While the Mississippi River has experienced the greatest increase in Interior least tern nesting population size, the analysis of 15 river system subpopulations with 20 or more years of monitoring data indicates that over that period of record, 10 experienced increases, 4 remained relatively stable, and only 1 (below Ft. Peck Dam) experienced a significant decline.

(13) Comment: Several commenters noted that the Interior least tern and its habitats remain vulnerable to climate change; one commenter was concerned about sea level rise and another stated that the species should remain threatened due to flooding associated with climate change.

Our Response: Because the Interior least tern nests within the Interior Basin remote from coastal areas, inundation by sea level rise is not a concern to its breeding range. We considered other potential effects of climate change in the proposed delisting rule (84 FR 56977; October 24, 2019) and this final rule under Effects of Climate Change, including the potential of increased flooding frequency. We conclude that the wide range of the Interior least tern (16 degrees of longitude; 18 degrees of latitude), its metapopulation dynamics, and its ability to relocate and exploit a wide variety of habitats reduces the magnitude of such threats. The response of the Interior least tern to any specific flood event may not be readily observed, and while such events may suppress local or regional reproduction and recruitment in some years, or shift reproduction and recruitment to other areas, major flood events also reset habitats and may result in increased numbers of terns in subsequent years. For example, Missouri River flood years are generally followed by improved nesting habitats supporting large increases in tern numbers and recruitment in subsequent years.

We considered all comments and information we received during the comment period for the proposed rule to delist the Interior least tern (84 FR 56977; October 24, 2019). We made minor editorial changes throughout the rule and added additional information to clarify our understanding of “foreseeable future,” which published in an August 27, 2019, final rule (84 FR 45020) (see 50 CFR 424.11(d)). These recent revisions did not significantly modify the Service's interpretation of foreseeable future, but rather, we codified a framework that sets forth how we will determine what constitutes the foreseeable future based on our long-standing practice. We have added a statement under Population Trends regarding the role of increased survey effort and the geographical extent of the area surveyed in the observed population increase since listing. Lastly, we also added information about how we considered the potential consequences to the Interior least tern of the February 3, 2020 (85 FR 5915), proposed rule to define the scope of the MBTA under Existing Regulatory Mechanisms, above.

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 “endangered species” or “threatened species.” The Act defines 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.” For a more detailed discussion on the factors considered when determining whether a species meets the definition of an endangered species or a threatened species and our analysis on how we determine the foreseeable future in making these decisions, please see Summary of Factors Affecting the Species.

Since its 1985 listing under the Act, the Interior least tern has shown an ability to adapt to changing environmental conditions caused by both human and natural disturbances. The Interior least tern nesting population encompasses hundreds of colonies in 18 States throughout the Interior Basin, from Montana southward through North Dakota, South Dakota, Nebraska, Colorado, Iowa, Kansas, Missouri, Illinois, Indiana, and Kentucky to eastern New Mexico, Oklahoma, Arkansas, Tennessee, Texas, Louisiana, and Mississippi (see supplemental documents at https://www.regulations.gov under Docket No. FWS-R4-ES-2018-0082). Therefore, the Interior least tern is highly redundant and resistant to future catastrophic events. Its representation is ensured by its continued occurrence within all known historical habitats ( i.e., Salt Plains, multiple river and stream orders) across a large latitudinal and longitudinal gradient and a wide variety of climatic conditions. Interior least tern resilience is demonstrated by metapopulation dynamics, by its ability to adapt to multiple natural and anthropogenic conditions, and by evidence of high genetic connectivity between drainage subpopulations. Because the Interior least tern has been considered to be increasing and self-sustaining since listing (35 years), and consists of a relatively large number of individuals with demonstrated high redundancy, representation, and resilience, we expect it to remain viable into the future.

We have carefully assessed the best scientific and commercial information available regarding the threats faced by the Interior least tern. Our analysis found an increase in the abundance, number of breeding sites, and range of the Interior least tern; resiliency to existing and potential threats; active habitat management and the implementation of beneficial management practices; and changes in existing regulatory mechanisms that are protective of migratory bird habitats. Known threats at the time of listing—habitat loss and curtailment of range, and predation—have been reduced or adequately managed, and we have analyzed possible new threats related to climate change and determined that they are not significant threats to the Interior least tern now or within the foreseeable future. Existing State and Federal regulatory mechanisms are adequate to protect the tern. The net effect of current and predictable future stressors to the species, after considering applicable conservation measures and the existing regulatory mechanisms, are not sufficient to cause the Interior least tern to be in danger of extinction now or likely to become so within the foreseeable future throughout its range. We find that the Interior least tern has recovered so that it no longer meets the definition of an endangered species or a threatened species under the Act throughout its 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. Having determined that the Interior least tern is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we now consider whether it may be in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range—that is, whether there is any portion of the species' range for which it is true that both (1) the portion is significant; and (2) the species is in danger of extinction now or likely to become so in the foreseeable future in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

In undertaking this analysis for the Interior least tern, we chose to address the status question first—we considered information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species is endangered or threatened. We considered whether any of the threats acting on the Interior least tern are geographically concentrated in any portion of the species' range at a biologically meaningful scale.

We examined the following threats: Habitat loss, curtailment of range, predation, and inadequacy of regulatory mechanisms, including cumulative effects. We found that while some colonies may be locally affected by future threats, these threats are not geographically concentrated. This finding is supported by a habitat driven, rangewide population model (TernPOP; Lott and Sheppard 2017a, b, entire), which considered 55 discrete scenarios of potential future habitat change (threats) or changes in management at local, regional, and rangewide scales, and covered the topics of (1) sandbar nesting habitat loss, (2) habitat degradation, (3) changes in predator management programs, and (4) deliberate efforts to create mid-channel nesting sandbars for the tern (see Future Conditions and Species Viability, above). We found no concentration of threats in any portion of the Interior least tern's range at a biologically meaningful scale. Thus, there are no portions of the species' range where the species has a different status from its rangewide status. Therefore, no portions of the species' range provides a basis for determining that the species is in danger of extinction or likely to become an endangered species in the foreseeable future throughout a significant portion of its range. This approach is consistent with the courts' holdings in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).

Our review of the best available scientific and commercial information indicates that the Interior least tern is not in danger of extinction nor likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Therefore, we find that the Interior least tern does not meet the definition of an endangered species or a threatened species under the Act.

This rule revises 50 CFR 17.11(h) by removing the Interior least tern from the Federal List of Endangered and Threatened Wildlife. On the effective date of this rule (see DATES , above), the protections provided by the Act, particularly through sections 7 and 9, no longer apply to the Interior least tern. Federal agencies are no longer required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect the Interior least tern. There is no critical habitat designated for the Interior least tern; therefore, this rule does not affect 50 CFR 17.95. Removal of the Interior least tern from the List of Endangered and Threatened Wildlife does not affect the protection given to all migratory bird species under the MBTA.

Section 4(g)(1) of the Act requires us to monitor for not less than 5 years, the status of all species that are delisted due to recovery. Post-delisting monitoring (PDM) refers to activities undertaken to verify that a species delisted due to recovery remains secure from the risk of extinction after the protections of the Act no longer apply. The primary goal of PDM is to monitor the species to ensure that its status does not deteriorate, and if a decline is detected, to take measures to halt the decline so that proposing it as endangered or threatened is not again needed. If at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing under section 4(b)(7) of the Act. Section 4(g) of the Act explicitly requires us to cooperate with the States in development and implementation of PDM programs, but we remain responsible for compliance with section 4(g) of the Act and, therefore, must remain actively engaged in all phases of PDM. We also seek active participation of other entities that are expected to assume responsibilities for the species' conservation post-delisting. At the conclusion of the monitoring period, we will review all available information to determine if relisting, the continuation of monitoring, or the termination of monitoring is appropriate.

While section 4(g)(1) of the Act requires us to implement a system in cooperation with the States to effectively monitor the status of any species that have been recovered and removed from the List(s), it does not require the development of a formal PDM plan prior to removing the species from the List, or at any point. The Service and States have wide latitude in implementation of this provision. However, we generally desire to follow a written planning document to provide for the effective implementation of section 4(g), and we intend to do so here. To fulfill the requirement to monitor for not less than 5 years, we developed a draft PDM plan for the Interior least tern and coordinated review of the plan with the State agencies, USACE Districts and Divisions, other Federal agencies, and various nongovernmental organizations. We published a notice of availability of a draft PDM plan with the proposed delisting rule (84 FR 56977; October 24, 2019). However, given the comments we received on the duration of the draft PDM plan, we will continue to work with our conservation partners to develop and implement an effective, final PDM plan, with an appropriate duration, for Interior least tern. Existing monitoring programs over more than 80 percent of the species' range ( e.g., USACE 2013, 2016, 2018) are committed to continue monitoring following delisting as we coordinate planning, and in the absence of a final PDM plan, periodic monitoring, with surveys in 2021, is expected to continue into the indefinite future due to management commitments by the USACE and the States, regardless of the tern's status under the Act. However, we generally desire to follow a written planning document to provide for the effective implementation of section 4(g), and we intend to do so here. We will notify the public of the final PDM plan on our website, https://www.fws.gov/mississippiES /, after coordination with our partners and when it becomes available. The current draft PDM plan is available at https://www.fws.gov/mississippiES/.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ), need not be prepared in connection with determining and implementing a species' listing status under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

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 do not believe that any Tribes will be affected by this rule. However, we contacted each of the Tribes within the range of the Interior least tern and requested their input on the proposed delisting rule and draft PDM. We did not receive any comments from them.

A complete list of references cited is available on http://www.regulations.gov under Docket Number FWS-R4-ES-2018-0082, or upon request from the Field Supervisor, Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary author of this rule is Paul Hartfield, Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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

The Director, U.S. Fish and Wildlife Service, approved this document 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 U.S. Fish and Wildlife Service. Aurelia Skipwith, Director, U.S. Fish and Wildlife Service, approved this document on November 19, 2020, for publication.