The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, issued EASA Emergency AD 2021-0143-E, dated June 16, 2021 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0654.

This product has been approved by EASA and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified the FAA of the unsafe condition described in the MCAI and service information. The FAA is issuing this AD because the agency evaluated all the relevant information provided by EASA and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

The FAA reviewed Austro Engine Mandatory Service Bulletin No. MSB-E4-031/1, Revision No. 1, dated July 1, 2021. This service information specifies procedures for replacing the affected oil pump installed on E4 and E4P model diesel piston engines. In addition, this service information identifies the applicable part number and serial numbers of affected oil pumps requiring replacement and an additional oil pump replacement option. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This AD requires removing the affected oil pump from service and replacing it with a part eligible for installation.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule. The FAA received a report of oil pressure loss on an E4 model diesel piston engine. The manufacturer subsequently determined that the oil pressure loss was caused by certain oil pumps produced with a dimensional deviation on the inner gear/shaft that may have contacted the pump housing. This contact might create debris and cause oil pump blockage. Austro Engine issued service information providing instructions for replacement of a certain oil pump installed on E4 and E4P model diesel piston engines.

A jammed oil pump can result in failure of the engine, in-flight shutdown, and loss of the airplane. The FAA considers a jammed oil pump to be an urgent safety issue that requires immediate action to avoid loss of the airplane. The actions required by this AD must be done before further flight after the AD's effective date. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B). In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0654 and Project Identifier MCAI-2021-00682-E” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Wego Wang, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 10 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866, and

(2) Will not affect intrastate aviation in Alaska.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

1. On May 4, 2021, the Federal Energy Regulatory Commission (Commission) issued an order addressing arguments raised on rehearing and clarification, and setting aside, in part, its prior Order No. 871. 1 Order No. 871-B revised the rule previously adopted by the Commission in Order No. 871  2 to narrow the scope of its application and to incorporate a time limitation for the Commission to preclude issuances of authorizations to proceed with construction activities. Order No. 871-B also announced a new general policy of presumptively staying certificate orders issued pursuant to section 7(c) of the Natural Gas Act (NGA)  3 during the 30-day rehearing period and pending Commission resolution of any timely requests for rehearing filed by landowners. On June 3, 2021, the Interstate Natural Gas Association of America (INGAA), the Enbridge Gas Pipelines (Enbridge), 4 and Mountain Valley Pipeline, LLC (Mountain Valley) requested clarification and rehearing of Order No. 871-B.

2. Pursuant to Allegheny Defense Project v. FERC, 5 the rehearing requests filed in this proceeding may be deemed denied by operation of law. However, as permitted by section 19(a) of the NGA, 6 we are modifying the discussion in Order No. 871-B and continue to reach the same result in this proceeding, as discussed below. 7

3. In Order No. 871, the Commission explained that historically, due to the complex nature of the matters raised on rehearing of orders granting authorizations under NGA sections 3 and 7, the Commission had often issued an order (known as a tolling order) by the thirtieth day following the filing of a rehearing request, allowing itself additional time to provide thoughtful, well-considered attention to the issues raised on rehearing.

4. In order to balance its commitment to expeditiously responding to parties' concerns in comprehensive orders on rehearing and the serious concerns posed by the possibility of construction proceeding prior to the completion of agency review, the Commission, in Order No. 871, exercised its discretion by amending its regulations to add new § 157.23, which precludes the issuance of authorizations to proceed with construction of projects authorized under NGA sections 3 and 7 during the period for filing requests for rehearing of the initial orders or while rehearing is pending. 8

5. Three weeks after the Commission issued Order No. 871, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued an en banc decision in Allegheny. 9 The court held that the Commission's use of tolling orders solely to allow itself additional time to consider an application for rehearing does not preclude operation of the NGA's deemed denial provision, 10 which enables a rehearing applicant to seek judicial review after thirty days of agency inaction. 11 The court explained that, to prevent an application for rehearing from being deemed denied, the Commission must act on an application for rehearing within thirty days of its filing by taking one of the four NGA-enumerated actions: grant rehearing, deny rehearing, or abrogate or modify its order without further hearing. 12

6. Shortly thereafter, on July 9, 2020, the Commission received three timely requests for clarification and rehearing of Order No. 871. To facilitate reconsideration of Order No. 871 and ensure a complete record for further action, the Commission in Order No. 871-A subsequently provided interested parties an opportunity to comment on the arguments raised on rehearing and specific questions posed by the Commission. 13 In response, the Commission received twelve initial briefs and five reply briefs from a variety of stakeholders, including states, landowners, natural gas companies, and a consortium of public interest organizations. 14

7. In consideration of the arguments raised on rehearing and in the briefs, the Commission in Order No. 871-B revised § 157.23 of its regulations to provide that the rule prohibiting the issuance of construction authorizations pending rehearing will apply only when a request for rehearing raises issues reflecting opposition to project construction, operation, or need. 15 Order No. 871-B further revised the rule to provide that the rule's restriction on issuing construction authorizations while a qualifying rehearing request remains pending will expire 90 days following the date that such request may be deemed denied by operation of law under NGA section 19(a). 16

8. In addition, the Commission in Order No. 871-B announced its intent to stay its NGA section 7(c) certificate orders during the 30-day rehearing period and pending Commission resolution of any timely requests for rehearing filed by landowners. 17 We explained that this policy will be applied on a particularized basis, subject to certain exceptions and, if imposed, any stay would be lifted no later than 90 days following the date that a qualifying request for rehearing may be deemed denied by operation of law. 18

9. On June 3, 2021, INGAA and Enbridge filed requests for clarification and rehearing of Order No. 871-B. 19 On the same day, Mountain Valley filed a request for clarification, or, in the alternative, rehearing. 20

10. INGAA's and Enbridge's petitions include several requests for clarification, or, in the alternative, rehearing of the rule, as revised in Order No. 871-B, and of the Commission's announcement that it would prospectively stay certain section 7(c) certificate orders pending rehearing. Mountain Valley's petition is focused on a single issue regarding the rule's application: whether the rule would apply if rehearing is sought of an amendment order approving a minor mid-construction change that would typically be submitted as a variance request. Below, we first respond to the various requests for clarification or rehearing of the revised rule and then to requests for clarification or rehearing of the Commission's policy of staying section 7(c) certificate orders pending rehearing.

11. In Order No. 871-B, the Commission revised § 157.23(b) of its regulations as follows:

12. INGAA and Enbridge request that the Commission clarify the meaning of “opposition to project . . . need.” Specifically, INGAA and Enbridge urge the Commission to clarify that this phrase refers only to situations in which a project opponent claims that there is insufficient evidence of market need for a project under the NGA section 7 economic balancing test. 22 INGAA maintains that “virtually any generic opposition to a project” could be viewed as an argument that the new facilities are not “needed,” and that if not clarified, this phrasing could prohibit the issuance of construction authorization whenever any rehearing request is filed by a party generally opposed to development. 23 Similarly, Enbridge posits that parties could delay construction for months by claiming on rehearing that a project is not needed because of “broad climate change concerns.”  24

13. We deny INGAA's and Enbridge's requests for clarification on this issue. The petitioners' interpretation construes the language of the rule too narrowly. Adopting this suggestion “would exclude from the rule's purview rehearing requests raising environmental matters or general opposition to a project, as well as rehearing requests filed by members of communities that would be impacted by the construction of new natural gas facilities.”  25 The Commission has already stated that we did not intend such a result. 26 We continue to find it appropriate “to refrain from permitting construction to proceed until the Commission has acted upon any request for rehearing that opposes project construction and operation or raises issues regarding project need, regardless of the basis or whether rehearing is sought by an affected landowner.”  27

14. INGAA and Mountain Valley seek clarification that the rule does not apply to amendment orders that authorize limited changes while project construction is ongoing, which the they refer to as “mid-construction changes,” or, in the alternative, rehearing. 28 INGAA explains that mid-construction changes—such as construction method changes, temporary workspaces changes, and minor route realignments that do not involve new facilities or new landowners—are traditionally filed by project developers as variance requests. 29 However, INGAA notes that the Commission can convert mid-construction changes submitted as a variance request into certificate amendment proceedings. In addition, a project developer may on its own accord decide to seek approval of certain mid-construction changes by filing an amendment application rather than a variance request. 30 INGAA and Mountain Valley seek assurance that the rule would not apply to amendment orders authorizing mid-construction changes that would traditionally be approved through the variance process. To support this request, INGAA and Mountain Valley point to the language of § 157.23's introductory text, which references orders authorizing “the construction of new natural gas transportation, export, or import facilities,” and explain that the type of mid-construction amendment proceedings for which it seeks clarification do not involve new facilities. 31

15. If the Commission declines to grant clarification, INGAA and Mountain Valley request rehearing of this issue. If the Commission agrees that the rule does not apply to orders authorizing limited mid-construction changes, INGAA further asks the Commission to clarify that it retains discretion to issue an authorization to proceed with construction during the 30-day rehearing period following such an order. 32

16. In Order No. 871-B, we explained that the rule limiting construction authorizations would not apply to a request for rehearing of an non-initial order that merely implements the terms, conditions, or provisions of an initial authorizing order, “such as a delegated order issuing a notice to proceed with construction, approving a variance request, or allowing the applicant to place the project, or a portion thereof, in service.”  33 With respect to amendment orders, the Commission stated that the rule would apply only to the facilities approved by the amendment order for which rehearing is sought: it would not relate back to any facilities previously approved by the Commission in the initial authorizing order that remain unchanged by the amendment order. 34

17. The Commission has already provided substantial guidance in response to INGAA's previous requests for clarification regarding the rule's application to non-initial and amendment orders. The scenario now posed by INGAA and Mountain Valley on rehearing of Order No. 871-B is a slightly different factual scenario. But the Commission is not required to identify and address every conceivable permutation of facts under which questions about the rule's application may arise. 35 Therefore, it is premature to address the possible range of future mid-construction changes. As a general matter, we think it likely that the rule would not apply if rehearing is sought of an amendment order approving a mid-construction change that is generally consistent with the terms and conditions of the original authorization order and does not involve new facilities or new landowners. However, we will consider the circumstances of each request on a case-by-case basis, and will indicate in the Commission's order in each case whether the rule applies.

18. Enbridge contends that the Commission erred by determining that an order granting rehearing for further proceedings would vacate the certificate authorization, 36 arguing that the Commission cannot revoke certificate authority merely by issuing an interlocutory order granting rehearing or establishing a hearing, briefing schedule, investigation or other similar proceeding, but rather, must make a specific finding on the issues with the requisite support. 37 According to Enbridge, an interlocutory order revoking a certificate would improperly place the certificate holder in “legal limbo” as an aggrieved party unable to seek rehearing and appeal of the interlocutory action. 38 Enbridge urges the Commission to establish a specific timeframe for issuance of a substantive order following a grant of rehearing subject to further proceedings or to set a deadline after which a construction authorization may issue. 39

19. INGAA takes a different tack, suggesting that the Commission adopt a case-by-case approach to determining whether an initial order will be vacated when rehearing is granted. 40 Specifically, INGAA asks the Commission to clarify that it did not adopt a blanket rule that a grant of rehearing for further procedures means the entire underlying order is vacated, 41 that it will instead employ a case-by-case approach for determining whether grant of rehearing would result in vacatur, 42 and that the entire certificate authorization will not be vacated if the Commission seeks additional briefing or information on one or more targeted issues. 43

20. Both INGAA and Enbridge note that the Commission's prior practice of issuing tolling orders did not result in vacatur of underlying order. 44 Thus, despite changing its procedures for handling requests for rehearing following Allegheny, INGAA and Enbridge argue that the Commission has departed from longstanding practice and failed to acknowledge such departure. 45

21. In response to INGAA's request, Order No. 871-B posited four post- Allegheny scenarios that could arise following the filing of a request for rehearing to explain when such a request would remain pending before the Commission and, thus, preclude the issuance of a construction authorization. 46 The fourth scenario addressed a situation contemplated by the Allegheny court, where the Commission could “grant rehearing for the express purpose of revisiting and substantively reconsidering a prior decision,” where it “needed additional time to allow for supplemental briefing or further hearing processes.”  47 In Order No. 871-B, the Commission stated that “[u]nder those circumstances, i.e., where the Commission grants rehearing without issuing a final order, the original authorization would no longer be in effect and the provisions of Order No. 871 would no longer apply since there would be no final order pursuant to which a notice to proceed could be issued.”  48

22. As an initial matter, Enbridge and INGAA err to the extent that they suggest the Commission determined that original authorization orders necessarily would be vacated or revoked by an interlocutory order granting rehearing for further procedures, as described by the Allegheny court. We merely stated, in response to a prior request for clarification from INGAA, that under the specified circumstances contemplated by the Allegheny court, the provisions of Order No. 871 “would no longer apply since there would be no final order pursuant to which a notice to proceed could be issued.”  49 We agree with INGAA that a case-by-case approach is necessary for the Commission to determine the effect that a grant of rehearing for further procedures would have on the underlying authorization. In the order granting rehearing for further procedures, we will indicate the order's effect on the underlying authorization.

23. The Commission previously declined a request to establish a deadline for issuing a final merits order following a grant of rehearing for further procedures. 50 As we stated at the time, timelines associated with supplemental briefing or evidentiary submissions may vary based on the complexity of the issues warranting further procedures. 51 Thus, we continue to find that a case-by-case approach is warranted in the event that the Commission grants rehearing because it “need[s] additional time to allow for supplemental briefing or further hearing processes.”  52

24. INGAA argues that § 157.23(b) should be revised to add the phrase “the earliest of the time at which,” as italicized below:

INGAA contends that this addition would clarify and better reflect what it understands to be the Commission's intent, as reflected by the Commission's use of the conjunction “or” and references throughout Order No. 871-B that suggest that the restriction on issuance of construction authorizations will apply until the earliest of the three “triggering events” contemplated by the rule. 54 If the suggested change is not adopted, INGAA fears that project opponents may argue that no authorization to proceed with construction should be issued until the occurrence of the later of the three “triggering events” comes to pass. 55

25. INGAA is correct in its interpretation that a construction authorization may be issued upon the earliest occurrence of the three triggering events enumerated in the regulation. However, we decline to further revise the regulatory language. As currently drafted, the rule uses the conjunction “or” which serves to distinguish the three scenarios as alternatives and signals that a construction authorization may issue once the earliest of the three events occurs.

26. In addition, INGAA renews its request that the Commission revise § 157.23 to expressly state that the rule may be waived for good cause shown. 56 INGAA urges the Commission to consider cases finding in other contexts that agencies' authority to waive their own rules is not unlimited and that agencies are bound by, and courts must enforce, the unambiguous terms of regulations. 57

27. The Commission previously declined to adopt INGAA's suggestion to incorporate into the rule an explicit waiver provision, finding it retains authority to waive its own regulations. 58 INGAA raises no new arguments that cause us to reconsider that decision.

28. Enbridge urges the Commission to clarify that its staff may issue authorizations to proceed with construction prior to the deadline established by the rule so long as the authorization does not become effective until the occurrence of the earliest of the three triggering events enumerated in the rule ( i.e., the rehearing request is no longer pending before the Commission, the record of the proceeding is filed with the court of appeals, or 90 days after the date that the request may be deemed denied). 59 Allowing project developers to obtain advance confirmation from Commission staff that all preconstruction conditions have been satisfied would, according to Enbridge, help project developers set and meet construction milestones, lessen the chance of additional regulatory delays, and would reflect the Commission's articulated goal of achieving an appropriate balance of interests. 60

29. The Commission denies the requested clarification. We believe that, in practice, a conditional construction authorization of the nature Enbridge suggests has the potential to create uncertainty for project developers, stakeholders, and Commission staff alike as to the effective date of the authorization, which outweighs the purported benefits that Enbridge identifies. Moreover, the advance notice contemplated by Enbridge fails to account for a change in status of a project developer's compliance with the terms of its section 7 certificate or section 3 authorization that could arise in the interim. We believe that a cleaner approach is for the Commission to issue authorizations to proceed with construction once all requisite conditions have been satisfied and the rule's prohibition on such issuance has elapsed.

30. INGAA urges the Commission to reconsider its determination that Order No. 871-B is a procedural rule not subject to the Administrative Procedure Act's (APA) notice and comment procedures. 61 Where a project developer has already fulfilled the necessary prerequisites for beginning construction, INGAA argues that the Commission failed to explain how it has “unfettered discretion” to refuse to allow construction of facilities it has already found required by the public convenience and necessity. 62 INGAA also characterizes as misleading the “85-day” figure—cited in Order No. 871-B to illustrate that over a five year period, on average, 85 days elapsed between issuance of an initial order and issuance of an authorization to proceed with construction—for it fails to account for project differences and assumes that developers rely on average figures when planning project construction and in-service deadlines. 63 According to INGAA, the rule “dramatically changes” the timeline for when a project can be placed in service and “implicate[s] the investment-backed expectations of all project developers.”  64

31. The Commission previously responded to concerns that the rule adopted in Order No. 871 was not a procedural rule and thus should have been issued following the APA's notice and comment requirements. 65 As we explained, the APA's notice and comment procedures were not required because the rule neither substantially “alters the rights or interests” of regulated natural gas companies nor changes the agency's substantive outcomes. 66 We also explained that the timing of when to permit construction to begin is a matter entirely within the Commission's existing discretion and not a matter of right. 67 INGAA's arguments on rehearing do not demonstrate an error in the Commission's analysis. 68

32. Order No. 871 is premised on the Commission's desire to balance its commitment to expeditiously respond to parties' concerns in comprehensive orders on rehearing and the serious concerns posed by the possibility of construction proceeding prior to the completion of agency review. 69 In Order No. 871-B, we cited the average 85-day span between an initial authorizing order and issuance of a construction authorization only to illustrate that in many cases construction cannot begin immediately upon issuance of an order authorizing new facilities under NGA sections 3 or 7. 70

33. In Order No. 871-B, the Commission announced a new policy of presumptively staying an NGA section 7(c) certificate order during the 30-day period for seeking rehearing and pending Commission resolution of any timely requests for rehearing filed by a landowner, until the earlier of the date on which the Commission (1) issues a substantive order on rehearing or otherwise indicates that the Commission will not take further action, or (2) 90 days following the date that a request for rehearing may be deemed to have been denied under NGA section 19(a). We explained that this policy will not apply where the pipeline developer has, at the time of the certificate order, already acquired all necessary property interests or where no landowner protested the section 7 application. In addition, we explained that the stay will automatically lift following the close of the 30-day period for seeking rehearing if no landowner files a timely request for rehearing of the certificate order. As we explained, this policy balances the competing interests at stake, including the project developer's interest in proceeding with construction when it has obtained all necessary permits, and a project opponent's interest in being able to challenge the Commission's ultimate decision in a timely manner.

34. INGAA and Enbridge argue that the stay policy is unlawful, under the NGA and the APA, because it seeks to achieve an objective—conditioning a certificate holder's eminent domain authority—that is directly prohibited by statute through indirect means. 71 INGAA and Enbridge contend that because the Commission has no authority to deny or restrict certificate holders from exercising the power of eminent domain, the Commission's new policy of presumptively staying its section 7 certificate orders is an unlawful workaround of a statutory prohibition and improperly limits a certificate holder's statutorily conferred eminent domain authority. 72

35. INGAA and Enbridge further contend that the stay policy violates section 19(c) of the NGA, which states that the filing of a rehearing request “shall not, unless specifically ordered by the Commission, operate as a stay of the Commission's order.”  73 INGAA maintains that the Commission, by announcing in Order No. 871-B a general policy of presumptively staying certificate orders pending rehearing, acted in general, rather than with the specificity that NGA section 19(c) demands. 74 INGAA further asserts that the policy is unlawful because it will result in the Commission staying its orders before either a rehearing request has been filed or a stay has been sought, an outcome not contemplated by the NGA. 75 Finally, INGAA takes issue with the Commission's position that its authority to stay a certificate order is found in the APA, arguing that section 705 of that act authorizes the Commission to postpone the effective date of its actions only “pending judicial review,” and that this authority is inapplicable prior to the filing of a request for rehearing and while such request is pending before the Commission. 76

36. As explained in Order No. 871-B, NGA section 16 gives the Commission an independent basis for granting stays of a certificate order. 77 Specifically, section 16 provides that “[t]he Commission shall have the power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this [Act].”  78 Section 16 also mandates that Commission orders “shall be effective on the date and in the manner which the Commission shall prescribe.”  79 Thus, the NGA provides the Commission with broad authority to take actions necessary to carry out the act, and we find that, given the significant consequences that eminent domain has for landowners, issuance of a stay of a certificate order under certain narrowly prescribed circumstances is well within this authority. Because NGA section 16 is broadly applicable, the Commission utilizes the standard set forth in APA section 705 to determine whether a stay is justified. 80 But the Commission's underlying authority derives from NGA section 16.

37. In any event, we disagree with INGAA's argument that APA section 705, which authorizes an agency to postpone the effective date of its actions “pending judicial review,”  81 means that a stay issued pursuant to this authority must be connected to ongoing judicial review proceedings and is thus inapplicable to any proceedings before the Commission that precede judicial review ( e.g., the time for filing and considering requests for rehearing). 82 INGAA construes the statute too narrowly. The clause “pending judicial review” in section 705 could reasonably be construed as “in anticipation of” in which case all that is required is that the Commission reasonably anticipate—because rehearing has been sought or a proposal has been strongly protested—that a party will seek judicial review.

38. Further, in Order No. 871-B, the Commission announced only a general policy with respect to stays. 83 Accordingly, although contained in a final rule, the Commission's discussion of that general policy did nothing more than explain how the Commission intends to approach a particular set of questions in the future without conclusively resolving those questions or otherwise fixing any rights or responsibilities. 84 Indeed, as explained in Order No. 871-B, the Commission intends to make a particularized application of the policy in individual certificate orders and parties to those individual proceedings will have the opportunity to challenge the Commission's determination on whether to issue a stay in those proceedings. Notably, the Commission has issued five certificate orders since adopting the policy reflected in Order No. 871-B, with none of those orders containing a stay along the lines contemplated in Order No. 871-B. 85

39. Contrary to INGAA's and Enbridge's assertions, nothing in NGA section 19(c), which on its face contemplates that the Commission may stay its own orders, precludes the Commission from determining that a stay of an individual certificate order during the 30-day period for seeking rehearing. Section 19(c) provides that a request for rehearing does not automatically stay a Commission order. 86 That section does not speak to, or otherwise limit, the Commission's authority to issue a stay of its own accord. As described above, NGA section 16 provides the Commission with broad authority to issue a stay where warranted by the facts and circumstances in a particular proceeding.

40. Enbridge seeks clarification that, for the purpose of the policy, the term “landowner” means “directly affected” landowner, as defined by the Commission's regulations, or, in the alternative, rehearing. 87 This clarification, Enbridge maintains, would align with the Commission's justification for the policy as it would ensure that a stay is applied only when a “protest or request for rehearing is submitted by the owner of property that would be subject to an eminent domain proceeding ( i.e., to directly affected landowners), and not owners of property that merely abuts the construction right-of-way or falls within a certain radius of compressor station construction or storage facilities.”  88

41. As a general matter, we agree with Enbridge's suggestion that the policy is intended to protect those whose property would be crossed or used by the proposed pipeline project as these are the landowners whose property rights could be acquired by the eminent domain authority that NGA section 7(h) confers upon certificate holders. 89 Should the issue of a landowner's specific property interests arise in a proceeding, the Commission will consider it.

42. Enbridge seeks clarification that the Commission will promptly lift a stay following a certificate holder's commitment that it will not exercise its right of eminent domain “for any reason other than to obtain the access necessary to complete surveys” while a qualifying landowner rehearing request is pending, 90 or, in the alternative, rehearing.

43. In Order No. 871-B, the Commission explained that a developer may file a motion seeking “to preclude, or lift, a stay based on a showing of significant hardship,” and expressly stated “that a commitment by the pipeline developer not to begin eminent domain proceedings until the Commission issues a final order on any landowner rehearing requests will weigh in favor of granting such a motion.”  91 We reiterate that conclusion, but will not pre-judge the merits of any motion along the lines contemplated in Order No. 871-B. As with the other aspects of this policy, those determinations will be made in any future proceeding.

44. INGAA argues that the Commission unlawfully shifted to pipeline developers the burden of proof to show that a stay is not warranted and argues that such a change in policy can only be accomplished through notice and comment rulemaking. 92 INGAA contends that the Commission failed to provide justification for its departure from past practice and failed to explain why it is permissible to shift this burden. 93 Enbridge makes a similar argument, but takes it a step further arguing that the Commission failed to “assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.”  94 INGAA requests further clarification regarding how the Commission will determine when a stay should be issued and how specifically a developer can overcome the presumption that a stay will be granted. 95

45. In Order No. 871-B, the Commission acknowledged that the stay policy is a departure from past practice and explained its belief that “this new policy better balances the relevant considerations—such as fairness, due process, and developer certainty—thereby justifying the change in policy.”  96 We disagree with the petitioners that this policy improperly shifts the burden to pipeline developers. As we previously explained, the Commission will determine whether to impose a stay based on the circumstances presented in each particular certificate proceeding—the burden is not on the pipeline. Rather, the Commission is obligated to ensure that all of its decisions, including whether to impose a stay in individual certificate proceedings, are supported by the record and reasonably explained. 97 And parties to those individual proceedings will have the opportunity to provide input to and challenge the Commission's decision to issue a stay, or not, in those proceedings.

46. We further disagree with INGAA's assertion that public notice and comment was required prior to the Commission announcing the stay policy. General statements of policy, such as the one announced in Order No. 871-B, are exempted from the APA's notice and comment procedures. 98

47. INGAA contends that the Commission both failed to sufficiently appreciate the harm that will befall the natural gas industry and to explain what activities certificate holders can perform while a stay is in place. 99 INGAA points to the length of this proceeding to cast doubt on the Commission's statement that it has increased the speed with which it resolves rehearing requests. 100 It also seeks further clarity regarding the types of activities that certificate holders may undertake while a stay is in place.

48. The Commission fully considered industry concerns and ultimately concluded that the stay policy announced in Order No. 871-B struck an appropriate balance between the interests of pipeline developers and landowners. 101 The rehearing process in this rulemaking proceeding, involving generally applicable policy considerations, is not representative of the increased speed with which the Commission handles project-specific rehearing requests in the post- Allegheny era. In fact, the Commission continues to strive to act on landowner rehearing requests (the subset of rehearing requests that may result in a stay extending beyond the 30-day period for seeking rehearing) within 30 days. The petitioners do not cite an instance of a delay in the Commission's issuance of an order on rehearing of a certificate order. While a stay is intact, certificate holders can engage only in those development activities that they were free to undertake prior to receiving a certificate order, such as negotiating easement agreements with landowners and conducting environmental surveys on private property they have permission to access.

49. Finally, INGAA asserts that the Commission failed to explain why the policy is necessary in light of an aggrieved party's ability to seek a stay from a reviewing court after a request for rehearing is deemed denied. 102

50. As the Commission explained in Order No. 871-B, certificate holders can, and routinely do, initiate condemnation proceedings immediately upon receipt of a certificate order. 103 Absent a stay in a particular proceeding, certificate holders have the ability to initiate condemnation actions against landowners prior to the expiration of the 30-day period for seeking rehearing, and prior to the 30-day period for the Commission to act on such a request before it may be deemed denied. This leaves a gap of approximately 60 days preceding a deemed denial and during which time landowners could be susceptible to condemnation proceedings being initiated prior to a reviewing court obtaining concurrent jurisdiction following the filing of a petition for review. 104 As we explained at length in Order No. 871-B, this Commission finds the fundamental unfairness that could result from that outcome untenable. Further, the stay policy is an appropriate exercise of our authority, and there is no need to leave these matters solely to the courts.

51. In response to INGAA's, Enbridge's, and Mountain Valley's requests for rehearing, Order No. 871-B is hereby modified and the result sustained, as discussed in the body of this order.

52. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission's Home Page ( http://www.ferc.gov ). At this time, the Commission has suspended access to the Commission's Public Reference Room due to the President's March 13, 2020 proclamation declaring a National Emergency concerning the Novel Coronavirus Disease (COVID-19).

53. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits in the docket number field.

54. User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at public.referenceroom@ferc.gov.

55. The effective date of the document published on May 13, 2021 (86 FR 26,150), is confirmed: June 14, 2021.

1. I dissent in full from today's order affirming the majority's modification and expansion of Order No. 871. 1 As I stated in my dissent in Order No. 871-B, I would repeal the rule as it is no longer required by law or prudence. 2 I write separately today to further explain how the Commission's new, unnecessary, and unjustifiable presumption to stay certificate orders conflicts with the plain text of the Natural Gas Act (NGA) and is beyond the Commission's authority. 3 I also write to explain how the majority's presumptive stay is not based on reasoned decision making and therefore runs afoul of the Administrative Procedure Act (APA).

2. In today's order, the majority states “the Commission's underlying authority derives from NGA section 16.”  4 Specifically, the majority relies on the provisions providing the Commission authority “to perform any and all acts . . . necessary or appropriate to carry out the provisions of this [Act]” and to determine the effective date of its orders. 5 Like many before it, the majority has turned to NGA section 16 when all else has failed, placing more weight upon this section than it can reasonably bear. NGA section 16 “do[es] not confer independent authority to act.”  6 It is “of an implementary rather than substantive character” and “can only be implemented `consistently with the provisions and purposes of the legislation. 7 ' ” The majority, however, fails to confront this limitation on section 16's reach and employs this provision in a manner that contravenes the NGA in three respects.

3. First, the majority's policy denies pipelines holding certificates the ability to exercise eminent domain for up to 150 days—doing exactly what the majority explicitly concedes it cannot do: “restrict the power of eminent domain in a section 7 certificate.”  8 NGA section 7(h) authorizes “ any holder of a certificate” to exercise eminent domain authority. 9 Other than the issuance of a certificate, Congress ordained no other condition be met in advance of a pipeline pursuing eminent domain. The Commission can only employ NGA section 16 in a manner consistent with the other provisions of the act. Here, the use of section 16 is in direct in conflict with the statute—and the majority does not see fit to argue otherwise.

4. Second, presumptively staying a pipeline's ability to pursue eminent domain is not appropriate under section 16 because such a delay is not a “necessary or appropriate” adjunct to the Commission's effectuation of its responsibilities under section 7 of the NGA. That section requires the Commission to issue certificates to applicants whose proposed natural gas facilities are found to be in the public convenience and necessity. The timing of a pipeline's use of eminent domain does not weigh into the Commission's determination of whether proposed pipeline facilities are in the public convenience and necessity. If it did, the majority would rely on the Commission's authority under NGA section 7(e) to “attach to the issuance of the certificate . . . such reasonable terms and conditions as the public convenience and necessity may require.”  10 The majority, however, does not. 11 Nor does the majority cite any other provision of the NGA for which the Commission's action would be “necessary or appropriate” under section 16.

5. Third, the only reasonable reading of NGA section 7 leads to the conclusion that Congress intended for certificates to be effective upon issuance and acceptance, and for the right to exercise eminent domain to attach thereupon. NGA section 7(e) provides, “a certificate shall be issued” so long as the applicant is “able and willing properly to do the acts . . . .”  12 Further, NGA section 7(h) authorizes “ any holder of a certificate of public convenience and necessity” to acquire by eminent domain the land necessary for the construction, operation, and maintenance of its pipeline facilities. 13 Black's Law Dictionary defines “holder” as “[a] person with legal possession of a document of title or an investment security,” meaning that the title was issued and accepted by that person. 14 This view has been shared by the courts  15 and the Commission. 16 This is not to say that the Commission can never make a certificate effective after its issuance or stay a certificate order. Both may be warranted in certain instances. In my view, however, it is contrary to the purpose of the NGA to adopt a policy that presumptively stays certificates for the avowed purpose of delaying a pipeline's Congressionally-authorized entitlement to exercise eminent domain. 17

6. In addition to NGA section 16, the majority appears to place some reliance on APA section 705, which provides “[w]hen an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review.”  18 I presume this is the case because the majority responds to arguments raised by the Interstate Natural Gas Association of America (INGAA) that the phrase “pending judicial review” in APA section 705 means an agency stay must be “tied to litigation.”  19 The majority asserts that a more reasonable interpretation of the phrase “pending judicial review” is “in anticipation of [judicial review].”  20 I've found no court that supports that position and multiple courts, in fact, disagree. 21

7. To the extent the majority merely argues that it can apply the three factors of the equitable standard set forth in APA section 705 to determine whether a stay is warranted, I agree. However, the majority's application of the equitable standard is not based on reasoned decision making, and thus violates the APA. 22

8. As I stated in my dissent to Order No. 871-B, the majority's assumption that the mere existence of a “landowner protest” automatically means a stay is required in the interest of justice is—at best—questionable. 23 This represents a broad category of litigant, whose mere participation in a proceeding would temporarily extinguish a certificate holder's Congressionally-established rights. Surely, the Commission should at least impose rational limits on the rule they are establishing. For example, will the Commission stay a certificate where there is a protest by a landowner with property interests that abut the proposed right-of-way but are not subject to condemnation? And the Commission's policy applies to where there is a “landowner protest.” Will the Commission apply the stay where a landowner protested but did not intervene and thus cannot seek rehearing or judicial review? What about in the case where the landowner joined a protest, but may not have active interests in the proceeding?

9. The majority also fails to consider the second factor “whether issuing a stay may substantially harm other parties.” Will the Commission stay a certificate where the proposed project is delivering natural gas to municipalities that need the gas within six months of certificate issuance? Will the Commission stay a certificate if the delay caused by its stay would cause an additional year's delay in construction because of seasonal restrictions? To what degree will the financial consequences for the project proponent be considered? What about the consequences to the pipeline's customers? It is not inconceivable that those projects whose applications have been pending for more than a year ultimately will be canceled as a result of delay. 24 How can the potential cancellation of a project that has been determined by the Commission to be in the public interest itself be in the public interest or, under the second factor, be found not to “substantially harm other parties”?

10. The power of eminent domain is surely profound and formidable. I cannot fault my colleagues for the anxiety they have expressed regarding its wise and just exercise. However, the Commission, as a mere “creature of statute,” can only act pursuant to law by which Congress has delegated its authority. 25 Congress conferred the right to certificate holders to pursue eminent domain in federal district court or state court, 26 having recognized that states “defeat[] the very objectives of the Natural Gas Act”  27 by conditioning or withholding the exercise of eminent domain. Congress has made that determination. It has codified it into law. The Commission, as an executive agency, is empowered only to implement Congressional mandate, not to second-guess Congressional wisdom or attempt to do indirectly what it cannot directly. 28

11. Despite this, I doubt that the Commission's arguments will be presented to the courts. It will be challenging for those that are harmed by the issuance of a generally-applicable policy to show aggrievement before it is actually applied in a case. And by the time those harmed are able seek review, the damage of the stay will have been done and the stay will have been lifted. My pessimistic outlook is that despite this order's obvious infirmities, the Commission will avoid judicial scrutiny and thereby thwart the intent of Congress.

For these reasons, I respectfully dissent.

The Coast Guard will enforce the special local regulation as described in section (a), row (12) of the table to 33 CFR 100.501 for the 11th Annual Atlantic City Triathlon from 6 a.m. through 9 a.m. on August 7, 2021. The published enforcement periods for this event included the 2nd or 3rd Sunday in August. We are announcing a change of enforcement date for this year's event with this notice of enforcement because August 7, 2021, is the first Saturday in August. This action is necessary to ensure safety of life on the navigable waters of the United States immediately prior to, during, and immediately after the swim portion of the triathlon. Our regulation for marine events within the Fifth Coast Guard District, table to § 100.501, section (a), row (12), specifies the location of the regulated area as all waters of the New Jersey ICW bounded by a line connecting the following points: Latitude 39°21′20″ N, longitude 074°27′18″ W, thence northeast to latitude 39°21′27.47″ N, longitude 074°27′10.31″ W, thence northeast to latitude 39°21′33″ N, longitude 074°26′57″ W, thence northwest to latitude 39°21′37″ N, longitude 074°27′03″ W, thence southwest to latitude 39°21′29.88″ N, longitude 074°27′14.31″ W., thence south to latitude 39°21′19″ N, longitude 074°27′22″ W, thence east to latitude 39°21′18.14″ N, longitude 074°27′19.25″ W, thence north to point of origin, near Atlantic City, NJ.

During the enforcement periods, as reflected in § 100.501(c), if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.

In addition to this notice of enforcement in the Federal Register , the Coast Guard will provide notification of the enforcement periods via broadcast notice to mariners.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest to do so. Notice to the Coast Guard did not provide sufficient time to allow for a reasonable comment period prior to the event. The rule must be in force by August 29, 2021. We are taking immediate action to ensure the safety of spectators and the general public from hazards associated with a large number of persons participating in a swimming competition.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with this event.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041. The Captain of the Port Delaware Bay (COTP) has determined that potential hazards associated with the swimming competition will be a safety concern due to vessel traffic operating in proximity to a large number of swimmers. This rule is needed to protect personnel, vessels, and the public within the regulated area during the swimming competition.

This rule establishes a special local regulation on all navigable waters of the Delaware Bay in Lower Township, NJ, bounded by a line drawn from: Latitude 39°0′57″ N, longitude 074°56′56″ W in Villas, NJ, thence west to latitude 39°00′59″ N, longitude 074°57′15″ W, thence south to latitude 38°58′08″ N, longitude 074°58′11″ W, thence east to latitude 38°58′04″ N, longitude 074°57′54″ W in North Cape May, NJ, thence north along the shoreline to the point of origin. The rule will be enforced from 6:30 a.m. to 9:30 a.m. on August 29, 2021. No person or vessel will be permitted to enter, transit through, anchor in, or remain within the regulated area without obtaining permission from the COTP Delaware Bay or a designated representative. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the COTP Delaware Bay or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP Delaware Bay or a designated representative. The Coast Guard will provide public notice of the regulated area by Broadcast Notice to Mariners and by on-scene actual notice from designated representatives.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on size, time of day, and duration of the regulated area, which would impact a small designated area of the Delaware Bay for three and one half hours. The regulated area does not include any marinas, piers, or other areas used to launch vessels. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area. This regulatory action determination is based on the following considerations: (1) Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of a Lower Township, NJ, for three and a half hours during the event; (2) persons and vessels will still be able to enter, transit through, anchor in, or remain within the regulated area if authorized by the COTP Delaware Bay or a designated representative; and (3) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Broadcast Notice to Mariners, or by on-scene actual notice from designated representatives.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the regulated area may be small entities, for the reasons stated in section V above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation that will prohibit persons and vessels from entering, transiting through, anchoring in, or remaining within a limited area on the navigable water on a portion of the Delaware Bay in Lower Township, NJ, during a swimmimg competition lasting approximately three and one half hours. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

On May 26, 2010 the Coast Guard published a Notice of Proposed Rulemaking (NPRM) prosposing to, among other things, establish a security zone for the Sabine Pass LNG mooring basin located in Cameron Parish, LA while LNG carriers are moored at the facility (75 FR 29695). On October 22, 2010 the Coast Guard issued an interim rule for the proposed security zone (75 FR 65235). On January 11, 2011 the Coast Guard published a final rule for the security zone (76 FR 1521).

Sabine Pass LNG is constructing a second mooring basin adjacent to the first and the COTP has determined that enhanced security measures are necessary and requires extending the existing security zone to include the new mooring basin. Therefore, the Coast Guard published a NPRM titled Security Zones; Sabine Pass Channel, Cameron, LA on June 14, 2021 (86 FR 31459). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this marine event. During the comment period that ended July 14, 2021, we received one comment pointing out a spelling error and advising of the need to include the horizontal datum reference in the rule.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port (COTP) has determined that enhanced security measures are necessary and is extending the existing security zone to include the new mooring basin.

As noted above, we received one comment on our NPRM published June 14, 2021 that requested we explicitly state the horizontal datum alongside the coordinates provided for each zone and correct a spelling error for “shoreward”. The Coast Guard corrected the spelling error and added the horizontal datum used for geographic reference. The Coast Guard also changed the language used to describe the georgraphic coordinates of the existing security zone for clarity and corrected an error in one of the positions. There are no other substantial changes to the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a permanent security zone in a new mooring basin at Sabine Pass LNG located in Cameron, LA. The security zone regulations are the same as those in effect for the existing mooring basin, that is, it would exclude certain vessels from entering the basin whenever an LNG carrier is moored at the facility. No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the limited size of the security zone and that the affected area does not hinder or delay regular vessel traffic. Certain vessels with business in the mooring basin will be permitted to enter the security zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves regulations establishing a security zone that would prohibit entry whenever an LNG carrier is moored at the facility. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard will enforce the safety zone in 33 CFR 165.943(a)(1) for the Bridgefest Regatta Fireworks on all waters of the Keweenaw Waterway bounded by the arc of a circle with a 100-yard radius from the fireworks launch site with its center in approximate position 47°07′28″ N, 088°35′02″ W from 09:15 p.m. through 09:45 p.m.on September 04, 2021. This action is necessary to protect participants and spectators during the Bridgefest Regatta Fireworks.

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth or their designated on-scene representative. The Captain of the Port's designated on-scene representative may be contacted via VHF Channel 16.

This document is issued under authority of 33 CFR 165.943 and 5 U.S.C. 552 (a). In addition to this publication in the Federal Register , the Coast Guard will provide the maritime community with advance notification of the enforcement of this safety zone via Broadcast Notice to Mariners. The Captain of the Port Duluth or their on-scene representative may be contacted via VHF Channel 16.

In a document published on February 6, 2019 (84 FR 2093), VA proposed revising its regulations governing the provision of Government headstones, markers, and medallions to eligible individuals. The public comment period ended on April 8, 2019. VA received 66 comments from interested individuals, which we address in categories below.

In the proposed rule, VA specifically requested public comments on proposed 38 CFR 38.630(b)(3)(i)(E)( 1 ), which would allow VA to replace existing Government-furnished headstones and markers to correct factual information provided to VA as part of the initial application process. As VA was not part of the application process until 1973, we noted in the preamble to this proposed rule that this provision would not apply to Government-furnished headstones or markers provided prior to 1973. VA received no comments about this provision. Therefore, VA makes no changes to this provision.

VA also received no comments on the proposed reorganization of a large portion of current Part 38 regulations. The new regulatory framework is reflected in the following chart:

Similarly, VA received no comments on proposed § 38.620(j), which proposed to add burial eligibility criteria for a group of individuals to reflect statutory changes that were made by Public Law 115-141. That Public Law amended 38 U.S.C. 2402(a) to establish eligibility for certain individuals naturalized pursuant to the Hmong Veterans' Naturalization Act of 2000 (Pub. L. 106-207)—those who served on behalf of the United States during the Vietnam War and who were residing in the United States at the time of the individual's death, which must have occurred on or after March 23, 2018, the effective date of the law. However, upon review, the pertinent public laws do not render spouses and surviving spouses of these Hmong fighters eligible for burial or memorialization. To align our previous proposal to public law, this final rule does not include the proposed inclusion of the phrase “or spouses of such individuals” in § 38.630(a)(1)(ii)(F) and (a)(2)(i)(F). Because this change merely brings the regulation in conformance with the statutory authority, it is unnecessary to solicit public comment on the change.

On December 31, 2018, before the proposed rule was published in the Federal Register , the President signed Public Law 115-407, which revised 38 U.S.C. 2306 and 2402(a)(5). Section 201 of the public law authorized VA to extend certain burial benefits to eligible spouses and dependents buried in a Tribal Veterans' cemetery. Section 202 of the public law authorized VA to extend certain burial benefits and national cemetery interment to eligible spouses and dependents of active duty Servicemembers serving under conditions other than dishonorable, as shown by a statement from a general court-martial convening authority, at the time of the spouse's or dependent's death that occurs prior to October 1, 2024.

To reflect these new statutory authorities, this final rule amends VA's regulation on burial eligibility, § 38.620, by adding paragraph (k) to authorize VA to inter the spouse, minor child, and unmarried adult child of a member of the Armed Forces serving on active duty under conditions other than dishonorable, as shown by a statement from a general court-martial convening authority, at the time of the spouse's or child's death if it occurs before October 1, 2024. The definitions of minor child and unmarried adult child provided in § 38.620(e)(2) and (3) will apply to this paragraph. The statutory changes are also reflected in amendments to § 38.630(a)(1)(iv) for burial headstones and markers and § 38.631(a)(1) for memorial headstones and markers, which extend eligibility to spouses and dependent children covered by Public Law 115-407.

Regarding the comments received, only two specifically noted support for the rulemaking. One commenter expressed general support for the proposed rule that recognizes the sacrifice of the men and women who served. A second commenter expressed specific support for the provisions regarding durability of headstones and requested that VA update Form 40-1330 to reflect these changes. We discuss the need for changes to Form 40-1330 below, in the section regarding the Paperwork Reduction Act. We thank these commenters for their support and input.

Although other commenters generally expressed negative opinions about the rulemaking, including suggesting that VA should abandon the effort, many of them did not specify ways in which VA should change any particular proposed provision or suggest an overall change to the rule, short of withdrawing it. We thank all the commenters who took time to submit comments on the proposed rule; however, without more information regarding the changes certain commenters would like to see or the provisions with which they take exception, we cannot respond except to say that VA believes the rule is necessary and provides needed guidance to the public regarding its headstone and marker program.

Two commenters submitted information relating to specific unmarked graves and questioned the application of the rule to these circumstances. One of the commenters provided photographs of existing markings as examples of worn and broken block grave markers. Comments regarding specific claims are beyond the scope of this rulemaking. Because the circumstances regarding each claim for benefits are unique, and VA assesses claims on a case-by-case basis, we cannot speculate on the potential merits of the information provided regarding specific claims or potential claims.

The first category of comments received generally asserted that VA was changing, or at least was being inconsistent with, the statutory authority for the headstone and marker program, as provided by Congress in 38 U.S.C. 2306. Several of these comments asserted that VA must provide headstones and markers for “all soldiers' graves” or “all veterans' graves” or just “all graves.” One commenter suggested that VA must provide a headstone to mark “any” grave for “any” veteran of “any” war. Another suggested that VA adopt a “One-Vet-One-Stone” approach and provide a headstone regardless of whether the remains are unmarked or marked. We appreciate the input from these commenters; however, we clarify that our authority is circumscribed by section 2306. That statute prescribes eligibility for a Government headstone or marker depending on the type of individual and type of cemetery at issue. VA assures these commenters, and the public, that VA is not changing or departing from any of the eligibility categories set forth in current 38 U.S.C. 2306; as several commenters pointed out, VA has no authority to change a statutory provision. VA's responsibility is to provide benefits as authorized by Congress and, where Congress has left some ambiguity, to implement reasonable regulations consistent with the statute. VA's regulation includes all the categories of individuals who are eligible for headstones, markers, or medallions as established by Congress, including specific criteria for placement where applicable (for example, some individuals may be eligible for a headstone only when buried in a national cemetery).

Several commenters suggested withdrawal of the proposal because it was inconsistent with the normal use of the term “marked.” We disagree. Section 2306 authorizes VA to furnish headstones or markers for “unmarked graves”; the common definition of “marked” is “having an identifying mark”; and the common definition of “unmarked” is “not having an identifying mark or distinctive notation.” See “Marked” and “Unmarked,” Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary (last visited June 24, 2020). It would contravene these common definitions to consider graves with private, durable headstones containing a legible, identifying notation (even if that notation is simply a name—or even a number that corresponds to a name) as “unmarked.”

Several additional commenters stated that the proposed definition of “unmarked grave” is not a reasonable construction of the statutory term and is inconsistent with Congress's intent to “furnish headstones or markers for the graves of all” veterans. S. Rep. No. 80-1453, at 2 (1948). The Senate Report cited in these comments was addressing the bill that would become Public Law 80-871 (1948), 62 Stat. 1215. This public law authorized Government headstones or markers for the “unmarked graves” of Union and Confederate soldiers, the “unmarked graves” of members of the Armed Forces who died in service or whose last service terminated honorably, and “all unmarked graves” in post and national cemeteries. 62 Stat. 1216.

Thus, while the Senate Report spoke in terms of headstones or markers for “all” veterans, S. Rep. 80-1453, at 2, the bill being recommended—and the Act which Congress passed—consistently restricted the furnishing of Government headstones or makers to “unmarked graves.” See id. at 1. Overall, the goal was not to ensure any specific content on the mark—just that all graves be marked. And neither the Senate Report nor the Public Law prescribed or suggested a definition of “unmarked.” As such, the definition of “unmarked” provided in this rule is consistent with the 1948 Congress's intent, and we make no changes based on these comments.

One commenter stated that veterans of all races and sexes who served in the military have a right to be remembered and honored with a headstone. Because section 2306 does not address race or sex in eligibility criteria, neither does VA's regulation. VA is committed to providing all of the many burial benefits, including headstones, markers, and medallions, to all persons eligible to receive them, without regard to a person's race, sex, or any other characteristics that are not enumerated in law.

Another commenter asserted that the proposal reflected an intent to deny headstones to veterans who served prior to World War I and who are interred in cemeteries that keep records of burials. This comment seems to conflate two provisions of the proposed regulation, one regarding a statutorily mandated eligibility date and one addressing when information about a decedent is “ascertainable” from the headstone or marker. We discuss the term “ascertainable” below. As to World War I, we note that this war was not referenced in the proposed rulemaking, but the regulation does contain three references to April 6, 1917, the date on which the United States entered World War I. One of these references, in proposed § 38.630(c)(1)(vi), defines “Applicant” to include any individual if the veteran's service ended prior to April 6, 1917—so that provision does not exclude veterans who served prior to World War I. The other two references, in proposed § 38.630(a)(2)(ii) and (iii), correspond to statutory references to that date in 38 U.S.C. 2306(d)(4) and (5). We make no changes based on this comment.

We also received a comment that our proposed regulation did not focus on defining headstones, markers, or medallions, but rather on determining “whether a veteran deserves any of those” benefits. The commenter asserted that this allowed VA to establish a “criteria for worthiness.” As indicated above, Congress decides which categories of individuals should receive a headstone or marker. Congress also established, mostly in 38 U.S.C. 101, the definitions that shape these categories, by defining, for example, when service in the military constitutes “active duty” and who may be considered a “veteran” for purposes of VA benefits. VA's responsibility is to determine whether a decedent meets the requisite criteria before providing a headstone or marker. We do not consider this determination to be an assessment of anyone's “worth”; it is merely a factual determination whether the decedent meets the criteria.

As noted above, VA received one comment suggesting a one-veteran-one-headstone rule, regardless of placement in a national or private cemetery, and irrespective of whether the remains are marked, unmarked, or on a collective monument. We thank the commenter for giving serious consideration to the issue of marking graves and suggesting an alternative. However, as previously explained, VA's regulation must remain within the authorities provided by Congress, which currently restrict who is eligible to receive a Government headstone or marker based on the nature of service, the type of cemetery at issue, and whether the grave is “unmarked.” VA makes no changes based on this comment.

Several commenters suggested that the content of the proposed rule was “changing” or not consistent with VA's current or past practice in providing headstones and markers for unmarked graves. Many of the comments urged VA to remove the rulemaking from the docket because the commenters believe it is unnecessary and would have far-ranging negative effects that would curtail an ordinary citizen's ability to honor and preserve the graves of veterans of all eras. Some commenters predicted dire results, stating that the regulation would result in VA no longer providing “individual” headstones—or any headstones at all—in the future, even if a grave is newly discovered. Several commenters specifically suggested that VA's rule would result in VA never providing a headstone for the grave of anyone who served in the Civil War, whether for the Union or the Confederacy. One commenter noted that several of VA's national cemeteries contain graves of enemy prisoners of war for which VA has provided headstones and stated that VA should show the same respect for “our own American veterans.”

While these commenters hypothesized possible effects of the proposed rulemaking, most did not specify the provisions of the proposed rule that would lead to these dire results. As indicated above, without a clear indication of what provision a commenter finds problematic, VA cannot respond as to why VA believes otherwise. We clarify for these commenters, however, that VA will indeed continue to provide headstones and markers for eligible veterans and others as required by section 2306. As to the particular categories that were mentioned, we note that the statute requires VA to provide headstones for “individual[s] buried in a national cemetery,” which would include enemy prisoners of war buried in national cemeteries, as well as “[s]oldiers of the Union and Confederate Armies,” who are eligible for headstones or makers for their unmarked graves within or outside VA national cemeteries. Both categories of individuals are reflected in the regulation.

To the extent the commenters' apprehension is related to the proposed definition of “unmarked grave,” the preamble to the proposed rulemaking addressed this issue. Although the definition had never before been included in VA regulations, the content of the definition is consistent with VA's longstanding policy and guidance in VA Department of Memorial Affairs Headstone and Marker Manual M40-3, which itself is consistent with Department of the Army regulation (32 CFR 536.57(b)(3) (1961)) and policy predating VA's assumption of responsibility for managing the national cemeteries, and the headstone and marker program, which occurred in 1973. We assure these commenters that the content of the rule is consistent with our current and past practice, despite the possibility that there may have been individual instances of inconsistent application in the past. Publication of the rule will assist in preventing such inconsistencies in the future. We believe that publication of the rule will establish consistency in VA's provision of headstone, marker, and medallion benefits within the scope of its statutory authority.

Finally, to the extent the commenters' concern is that VA will no longer furnish headstones or markers so long as the decedent interred in the grave can be ascertained through research or a cemetery office ledger, that is not the case. If there is no durable headstone or marker at or by the grave, that grave is “unmarked” under this rule, § 38.630(c)(6), and VA would therefore furnish a headstone or marker if eligibility criteria are met. Moreover, if a headstone or marker is damaged beyond repair, lacks a legible inscription that can lead to identification of the decedent, or has been stolen or vandalized, that grave is “unmarked” under this rule, id., and VA would therefore furnish a headstone or marker if eligibility criteria are met. In sum, a cemetery's maintenance of a ledger does not preclude consideration of a grave as “unmarked.” That said, where the inscription on a durable headstone or marker, in conjunction with a cemetery ledger or other reasonably accessible source, serves to identify the decedent, the grave is considered “marked” under the proposed rule and this final rule.

Two commenters suggested that graves should be considered “unmarked” if a headstone or marker does not contain a “proper inscription,” including name, rank, and other service information. Others asserted that a number on a headstone, corresponding to a book or list, was not sufficient to mark a grave or honor a veteran. Another stated that the definition of “marked” should be the same regardless of the type of cemetery at issue.

At the outset, it must be noted that VA cannot change a private choice in a private cemetery to place only a name or number on a headstone. While one commenter stated that no “one should ever have to settle for just being a number,” some private purchasers chose and private cemeteries permit such a practice, and VA cannot prohibit it. The critical question, for purposes of VA's statutory authority to furnish headstones or markers, is whether such a grave is “unmarked.” And in our proposal, we posited a definition of “unmarked” that can be consistently applied, regardless of the type of cemetery at issue.

As discussed in the preamble to the proposed rule, VA considered including as “unmarked” privately purchased headstones that do not meet the minimum inscription criteria that Congress set for an “appropriate marker” in VA national cemeteries at 38 U.S.C. 2404(c). Those minimum criteria are the name of the decedent, the number of the grave, and other information that VA shall prescribe, id., which currently is branch of service and years of birth and death, see VA Form 40-1330 (Inscription Information). However, we continue to reject that alternative, because there is no indication that Congress intended its view of what is “appropriate” for markers in national cemeteries as the barometer for what is marked or “unmarked” in other cemeteries. In other words, Congress's use of the term “appropriate marker” in section 2404(c) indicates that some graves having a “marker” that is not “appropriate” for a national cemetery are nevertheless marked. In any event, it is incongruous to use section 2404(c)'s definition of “appropriate marker” under the national cemetery administration program as a definition for “unmarked graves” in the headstone and marker program of section 2306. The predecessor to section 2404(c), for example, required that national cemetery headstones contain the State of the decedent, 24 U.S.C. 279 (1970); but that does not mean that Congress considered a headstone not chronicling a State in a private cemetery as “unmarked.” And VA believes that if Congress were later to determine that the use of nicknames on headstones is not “appropriate” for national cemeteries, that would not mean that a headstone with a nickname in a private cemetery is “unmarked. Although Congress mandated certain information be on headstones in national cemeteries, there is no indication that it intended section 2404(c) to be a definition of “marked.” Accordingly, the rule here focuses the “unmarked” inquiry not on what is “appropriate” for national cemeteries, but on whether there is a durable headstone or marker with a legible inscription that, in conjunction with a cemetery ledger or other reasonably accessible source, serves to identify the decedent. We make no changes based on these comments.

One commenter suggested that VA determine, on a “case by case” basis, whether a grave was marked based on the content of the inscription of an existing headstone or marker. The commenter provided hypothetical examples of the application of this “test.” We appreciate the considerable thought put into the comment and note that VA does undertake some of the analysis suggested when determining whether a Government-furnished headstone or marker should be replaced based on newly discovered information. This is reflected in the rule at § 38.630(b)(3)(E) for burial headstones or markers and § 38.631(b)(3)(E) for memorial headstones or markers. We thank the commenter, but because, as explained above, the content of the inscription is not determinative of whether a grave is considered unmarked, we make no changes based on this comment.

Another commenter interpreted the proposal to mean that, if a headstone were unreadable, but identification could be made through research, VA would not provide a headstone or marker. This is not the case. Under § 38.630(c)(6)(ii)(C), where the identifying elements of an inscription on the headstone or marker are no longer legible, the grave is “unmarked.” The commenter then raised an issue that seems to pertain to whether information is “ascertainable” by citing a lack of services available at some cemeteries, which may make timely identification difficult. While we are sympathetic to this concern, we note again that VA's mandate is to furnish headstones or markers for the unmarked graves of veterans. We cannot extend our authority to address the lack of customer service provided by private entities by providing a headstone or marker where one already exists. Nevertheless, the definition of “ascertainable” addresses this issue by requiring the decedent's name to be “reasonably accessible,” which may involve a case-by-case consideration of the availability of the private cemetery's ledger or other sources.

On a similar note, one commenter argued that a grave is not “marked” if a visitor has to review a cemetery ledger to learn of the decedent's name. But Congress has authorized VA to furnish headstones or markers for “unmarked graves,” not marked graves lacking certain information. Again, while we are sympathetic to the burden on visitors when a headstone or marker itself conveys little information about a decedent, that does not mean that the grave is “unmarked.”

Many comments VA received, including several noted previously, were concerned about the application of this rule to the provision of headstones and markers for individuals who served in the Confederate armed forces during the Civil War, and particularly those who are buried in Oakwood Cemetery in Richmond, Virginia. We understand that readers of any rulemaking document will understand its contents through their own experiences and circumstances. But this rule was drafted to apply to the myriad circumstances, both historic and contemporary, that VA navigates in deciding claims for headstones and markers. The rule provides VA with the flexibility to provide headstones or markers in numerous situations, without dictating how private individuals must mark or should have marked a grave.

Some of these commenters expressed a belief that the rulemaking reflected a political bias against those who served in the Confederate armed forces and is an attempt to limit provision of headstones to mark graves of Confederate soldiers. We affirmatively state that the regulation was not created to advance any political agenda or to deny any group of individuals the benefit to which they are entitled. Consistent with section 2306(a), this rule treats Confederate soldiers the same as Union soldiers and most others eligible for burial in a national cemetery. The regulation will provide VA with a consistent method for determining eligibility for the headstone, marker, and medallion benefits within the scope of its statutory authority. As acknowledged above, to the extent VA's past implementation may have been inconsistent at times, VA intends with this regulation to create a clear and effective method by which the headstone, marker, and medallion program will be managed.

Commenters also asserted that VA's proposal is inconsistent with Public Law 80-871 (1948), because the Senate characterized the bill that would become this Public Law as authorizing Government headstones or markers for “the graves of all persons who served honorably in the armed forces of the United States, including the Union and Confederate Armies.” S. Rep. 80-1453, at 2. As stated above, 38 U.S.C. 2306(a)(3) provides eligibility for headstones or markers for individuals who served in the Union and Confederate Armies, and this rule similarly includes them as eligible at § 38.630(a)(1)(iii). We reiterate, however, that, while that part of the Senate report cited by the commenters referred only to “graves,” without the “unmarked” qualifier, other parts of the report—and the public law itself—limited this furnishing to graves (of those who served in the Union and Confederate Armies and all others) that were “unmarked.” This remains the language of the law (in section 2306) today. As noted above, Congress did not provide, in Public Law 80-871 or any other law since, a definition of the term “unmarked.”

At least one commenter asserted that, under the 1948 law, Congress intended that VA provide headstones which display the veteran's name and other pertinent information. To the contrary, that topic was not addressed in Public Law 80-871. And, as noted above, Congress has never declared that the content on a headstone or marker is the barometer for assessing whether a grave is “unmarked.” Indeed, Congress has strongly suggested that the provision of headstones or markers for already-marked private graves requires specific statutory authority: Congress added paragraph (d) to section 2306, see Public Law 107-103, 502 (2001), with the understanding that “VA is restricted by statute from providing a headstone or marker for an already marked grave” absent Congressional allowance. S. Rep. 107-86, at 23 (2001). Overall, as discussed above, while section 2404 requires that certain information be inscribed on headstones or markers in order to be an “appropriate marker” for graves in national cemeteries, this requirement is not related to VA's authority to furnish headstones or markers on unmarked graves outside national cemeteries.

Several commenters specifically referenced the effect the regulation may have on VA's provision of headstones for those interred in Oakwood Cemetery in Richmond, Virginia. One commenter cited to a specific headstone request for placement at Oakwood Cemetery and another commenter cited to legal challenges to VA's previous denials of claims for headstones for graves in Oakwood's Confederate section. Other comments stated support for providing headstones at Oakwood. As previously indicated, we cannot address specific claims within this rulemaking. We also clarify that the effect of this rulemaking is not to address specific gravesites or cemeteries, such as Confederates interred in Oakwood Cemetery. To the extent that the litigation regarding headstones at Oakwood Cemetery informed this regulation, it reinforced the importance of VA publishing a regulation with consistent standards and inviting public comment, to ensure the public is aware of, and able to provide input on, VA's interpretation of its statutory authority. The content of the regulation was not drafted with any intent of addressing specific previous or potential future claims at Oakwood or any other cemetery; as noted above, the regulation was drafted to provide a clear and effective method by which the headstone, marker, and medallion program will be managed in accordance with VA's interpretation of the authority provided by Congress.

One commenter asserted that VA-furnished headstones for Confederates at Oakwood Cemetery are incorrect or duplicative and questioned the accuracy of burial lists for graves at Oakwood. VA appreciates the commenter's concerns; however, these comments are case-specific scenarios or issues that should be raised in the claim adjudication context, and not as part of a rulemaking.

Some of the commenters discussing Oakwood Cemetery referenced a “statement submitted to [the Office of Management and Budget (OMB)] in 2017 by James B. Laidler.” We attempted to obtain the full text of Mr. Laidler's 2017 comment that presumably would have been submitted to OMB regarding proposed changes to VA Form 40-1330, Claim for Standard Government Headstone or Marker. We conducted an internal search of files, trying to locate the full content of Mr. Laidler's 2017 comment, but we have no record of having received such comment. Because the commenters indicated it was submitted to OMB, we reviewed the online portal at www.regulations.gov but did not find any comment submitted by Mr. Laidler. Finally, we also asked OMB if they could provide the comment to us; however, OMB staff informed us that they also had no record of Mr. Laidler's submission.

Without the benefit of reviewing Mr. Laidler's actual comment in full, it is difficult to evaluate the relevance of his input to this regulation specifically. However, we can address the arguments conveyed by the commenters, which allegedly originated from this 2017 submission. The commenters asserted that VA's proposal would rely on a “block-and-ledger” system to determine whether a grave is “unmarked” and that, because all cemeteries use such a system, this would essentially result in VA never providing a Government headstone for any graves. To the extent the commenters are referring to a grave location system that marks sections and rows of graves within a large cemetery, this is indeed a system used in many, if not all, cemeteries, including VA's national cemeteries. However, VA did not propose that a grave is “marked” so long as the cemetery has a system for locating graves. Under the proposed rule and final rule, a grave lacking a durable headstone or marker is “unmarked”; a grave with a damaged, stolen, or vandalized headstone or marker is “unmarked”; and a grave without a legible inscription on a headstone or marker is “unmarked.” As explained in the preamble to the proposed rule, this definition is based on VA's long-standing policy, which, in turn, is based on the policy that the Department of the Army had used prior to the transfer of the national cemeteries and the headstone and marker program to VA in 1973. VA makes no change to the regulation based on these comments, including, to the extent it was capable of consideration, Mr. Laidler's 2017 comment.

One commenter requested clarification as to whether a headstone or marker has to be individualized for the grave to be considered marked, i.e., whether a headstone or marker for “a block of graves or a row of many graves” suffices. Similarly, another stated that a grave should be considered “unmarked” if “no individual marker is present at the soldier's actual burial site.” To clarify VA's position on the matter, if there is a marker for a block or row of graves that serves to identify the decedent (and is durable, not damaged beyond repair, etc.), VA considers the grave to be marked. As noted above, VA has no authority to control how private cemeteries historically chose to mark graves, and the choice to mark multiple graves with one block in proximity to those graves does not render them “unmarked.” To the extent the proposed regulatory text was unclear on the matter, we are replacing “at the grave” in proposed § 38.630(c)(6) with “at or by the grave” in final § 38.630(c)(6).

Beyond the changes noted above, VA also makes a few technical edits in this final rule, including the correction of cross-references, addition of medallions to the replacement provisions in § 38.630(b)(3)(ii), and updating statutory citations in § 38.630(c)(4) to reflect renumbering in titles 10 and 14 of the United States Code.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is a significant regulatory action under Executive Order 12866.

The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rulemaking does not change VA's policy regarding small businesses, does not have an economic impact to individual businesses, and there are no increased or decreased costs to small business entities. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

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

The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number. See also 5 CFR 1320.8(b)(3)(vi).

This final rule will impose the following revised information collection requirement that was previously approved by OMB. Of the 66 public comments received for the proposed rule, VA received no comments on proposed § 38.630(b)(1)(iii)(A)-(C) that revised two existing certification statements on VA Form 40-1330, titled “Claim for Standard Government Headstone or Marker,” related to placement of a headstone or marker in a private or local cemetery and related to following the receiving cemetery's guidelines and procedures. VA incorporated one change to the form based on a comment to add the text “permanent and durable” to describe graves that are currently marked with a privately purchased headstone or marker. This change merely implements the language in § 38.630(c)(5) that defines a privately purchased, durable headstone or marker as “lasting” and not anticipated to unduly degrade under exposure to the environment in which it is placed. The collection of information is necessary for VA to sufficiently determine that a Government-furnished headstone or marker can be placed in a private or a local government cemetery in close proximity to the grave and in accordance with cemetery guidelines. VA will use this information to ensure proper issuance of the requested headstone or marker. The proposed revisions to the certifications further do not affect eligibility for a headstone, marker, or medallion, and would not increase or decrease the number of applicants using VA Form 40-1330. Therefore, these proposed revisions would not result in any increase or decrease in respondents, respondent burden hours, or respondent burden costs. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA will submit information collection 2900-0222 to OMB for its review and approval on the revised collection.

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

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.201 National Cemeteries; 64.202 Procurement of Headstones and Markers and/or Presidential Memorial Certificates; and, 64.203 Veterans Cemetery Grants Program.

Denis McDonough, Secretary of Veterans Affairs, approved this document on June 23, 2021, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons set forth in the preamble, the Department of Veterans Affairs amends 38 CFR parts 38 and 39 as follows:

Why we need to publish a rule. Under the Act, a species may be removed from the Federal List of Endangered and Threatened Plants (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 be completed only by issuing a rule.

What this document does. This rule removes the running buffalo clover ( Trifolium stoloniferum ) from the List in title 50 of the Code of Federal Regulations (50 CFR 17.12(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 running buffalo clover 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) An increase in the number of known populations; (2) resiliency to existing and potential threats; (3) the implementation of management agreements to maintain suitable habitat for the species; and (4) protection on public lands.

Peer review and public comment. We evaluated the species' needs, current conditions, and future conditions to prepare our August 27, 2019, proposed rule (84 FR 44832). 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 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.

We published a final rule listing running buffalo clover as an endangered species under the Act on June 5, 1987 (52 FR 21478). The Running Buffalo Clover Recovery Plan (Service 1989) was approved on June 8, 1989, and revised in 2007 (72 FR 35253, June 27, 2007).

Running buffalo clover was included in a cursory 5-year review of all species listed before January 1, 1991 (56 FR 56882, November 6, 1991). The 5-year review did not result in a recommendation to change the species' listing status. We completed comprehensive 5-year reviews of the status of running buffalo clover in 2008, 2011, and 2017 (Service 2008, 2011, 2017). These reviews recommended reclassification from endangered to threatened status, based on achievement of the recovery criteria at that time.

On August 27, 2019, we proposed to delist the running buffalo clover due to recovery (84 FR 44832). In that document, we requested information and comments from the public and peer reviewers regarding the proposed rule and the draft PDM plan for running buffalo clover.

In preparing this final rule, we reviewed and fully considered all comments we received during the comment period from the peer reviewers, States, and public on the proposed rule to delist running buffalo clover (84 FR 44832, August 27, 2019). As a result, we incorporated new information into Distribution, Habitat, and Biology under Background in this final rule. We also updated the number of populations with management agreements that meet delisting criterion 3 and reassessed the species' status in light of that modification.

The following discussion contains updates to the information that was presented in the proposed rule to remove running buffalo clover from the List. A thorough discussion of the species' description, habitat, and life history is also found in the proposed rule.

Running buffalo clover is a member of the Fabaceae (pea) family. This short-lived perennial forms long runners (stolons) from its base and produces erect flowering stems, 10-30 centimeters (cm) (4-12 inches (in)) tall. The flower heads are round and large, 9-12 millimeters (mm) (0.3-0.5 in). Flowers are white, tinged with purple.

The known historical distribution of running buffalo clover includes Arkansas, Illinois, Indiana, Kansas, Kentucky, Missouri, Ohio, and West Virginia (Brooks 1983, pp. 346, 349). There were very few reports rangewide between 1910 and 1983. Prior to 1983, the most recent collection had been made in 1940, in Webster County, West Virginia (Brooks 1983, p. 349). The species was thought extinct until it was rediscovered in 1983, in West Virginia (Bartgis 1985, p. 426). At the time of listing in 1987, only one population was known to exist, but soon afterward, several additional populations were found in Indiana, Ohio, Kentucky, and West Virginia. Populations were rediscovered in the wild in Missouri in 1994 (Hickey 1994, p. 1). A single population was discovered in Pennsylvania in 2017 (Grund 2017) with additional populations discovered since then.

One hundred seventy-five extant populations of running buffalo clover are known from three ecoregions, as described by Bailey (1998): Hot Continental, Hot Continental Mountainous, and Prairie. These include 15 occurrences in Ohio and Pennsylvania that have either been discovered or of which we have been notified since publication of the proposed delisting rule. For recovery purposes, the populations are divided into three regions based on proximity to each other and overall habitat similarities. These regions are Appalachian (West Virginia, southeastern Ohio, and Pennsylvania), Bluegrass (southwestern Ohio, central Kentucky, and Indiana), and Ozark (Missouri). The majority of populations occur within the Appalachian and Bluegrass regions.

Running buffalo clover typically occurs in mesic (moist) habitats with partial to filtered sunlight and a prolonged pattern of moderate, periodic disturbance, such as grazing, mowing, trampling, selective logging, or flood-scouring. Populations have been reported from a variety of habitats, including mesic woodlands, savannahs, floodplains, stream banks, sandbars (especially where old trails cross or parallel intermittent streams), grazed woodlots, mowed paths ( e.g., in cemeteries, parks, and lawns), old logging roads, jeep trails, all-terrain vehicle trails, skid trails, mowed wildlife openings within mature forest, and steep ravines. Running buffalo clover occurs in a wide range of soil types, with calcium often the dominant base in the soil (Hattenbach 1996, p. 53). Running buffalo clover is often found in regions with limestone or other calcareous bedrock underlying the site, although limestone soil is not a requisite determining factor for the locations of populations of this species. For example, new populations of running buffalo clover have been discovered in West Virginia in areas with soil derived from new geological units (WVDNR 2019, in litt. ).

Sites that have not been disturbed within the last 20 years are unlikely to support running buffalo clover (Burkhart 2013, p. 158) because the species relies on periodic disturbances to set back succession and open the tree canopy to create and maintain the partial to filtered sunlight it requires. These disturbances can be natural (for example, tree falls and flood scouring) or anthropogenic (such as grazing, mowing, trampling, low-intensity disturbance from counting and monitoring, or selective logging) in origin. Although tree harvest disturbances that reduce canopy cover may cause a temporary decline in running buffalo clover, populations usually increase 2 years later (Madarish and Schuler 2002, p. 127) and reach their highest density 14 years after disturbance (Burkhart 2013, p. 159). However, a complete loss of forest canopy can be detrimental to running buffalo clover by allowing in too much sunlight and altering the microclimate.

Substantial variability in the growth and development of running buffalo clover has been documented, but the plant structure usually includes rooted crowns (rosettes that are rooted into the ground) and stolons (above-ground creeping stems) that connect several rooted or unrooted crowns, which eventually separate to leave “daughter” plants. Because of this stoloniferous growth form, individual plants can be difficult to distinguish. The Running Buffalo Clover Recovery Plan defines an individual plant as a rooted crown (Service 2007, p. 1). Rooted crowns may occur alone or be connected to other rooted crowns by runners.

Flowering typically occurs between mid-May and June. However, plants at higher elevations in the mountains of West Virginia may bloom as late as mid-July (WVDNR 2019, in litt. ). Flowers are visited by a variety of bee species ( Apis spp. and Bombus spp.) and are cross-pollinated under field conditions (Taylor et al. 1994, p. 1,099). Running buffalo clover is also self-compatible (capable of pollinating itself); however, it requires a pollinator to transfer the pollen from the anthers to the stigma (Franklin 1998, p. 29). Although it may set fewer seeds by self-pollination than by outcrossing, the selfed seed set may be adequate to maintain the species in the wild (Taylor et al. 1994, p. 1,097). Selfed seeds have been shown to germinate well and develop into vigorous plants (Franklin 1998, p. 39).

Seeds typically germinate during early spring (mid-March to early April) when temperatures are between 15 and 20 degrees Celsius (°C) (59-68 degrees Fahrenheit (°F)) during the day and 5 to 10 °C (41-50 °F) at night. Spring temperature fluctuations appear to be a major dormancy breaker in natural populations of running buffalo clover (Baskin 2004).

Scarification may aid in seed germination and seed dispersal. Scarification of seeds by the digestive system of herbivores, historically believed to be bison, deer, elk, or small herbivores such as rabbits or groundhogs, was likely an important process in natural populations (Thurman 1988, p. 4; Cusick 1989, pp. 475-476). Although deer are viable vectors for running buffalo clover seeds, the survival and germination rates of ingested seeds are low (Ford et al. 2003, pp. 426-427). Dispersal and establishment of new populations of running buffalo clover by white-tailed deer herbivory may not be significant (Ford et al. 2003, pp. 426-427). It appears that scarification accelerates the germination process, whereas natural germination may occur over time if the right temperature fluctuations occur (Service 2007, p. 9).

Running buffalo clover has relatively low levels of diversity and low levels of gene flow between populations, even between those separated by short distances (Hickey and Vincent 1992, p. 15). Much of the genetic diversity observed in running buffalo clover occurs across different populations, and small populations of running buffalo clover contribute as much to the total species' genetic diversity as large populations (Crawford et al. 1998, p. 88).

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 this section [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 to delist. In other cases, recovery opportunities may be discovered that were not known when the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent to which existing criteria are appropriate for recognizing recovery of the species. 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 revised recovery plan for running buffalo clover (Service 2007, p. 24) states that the ultimate goal of the recovery program is to delist running buffalo clover. The plan provides three criteria for reclassifying running buffalo clover from endangered to threatened status ( i.e., to “downlist” the species) and three criteria for delisting running buffalo clover. All of the downlisting criteria have been met since 2008 (Service 2008, pp. 3-4; Service 2011, pp. 3-4; Service 2017, pp. 3-5). The following discussion provides an assessment of the delisting criteria as they relate to evaluating the status of this species.

Criterion 1 states that 34 populations, in total, are distributed as follows: 2 A-ranked, 6 B-ranked, 6 C-ranked, and 20 D-ranked populations across at least 2 of the 3 regions in which running buffalo clover occurs (Appalachian, Bluegrass, and Ozark). The number of populations in each rank is based on what would be required to achieve a 95 percent probability of persistence within the next 20 years; this number was doubled to ensure biological redundancy across the range of the species. Rankings refer to the element occurrence (E.O.) ranking categories.

E.O. rankings, which integrate population size and habitat integrity, are explained in detail in the recovery plan (Service 2007, pp. 2-3). In summary, A-ranked populations are those with 1,000 or more naturally occurring rooted crowns; B-ranked populations have between 100 and 999 naturally occurring rooted crowns; C-ranked populations have between 30 and 99 naturally occurring rooted crowns; and D-ranked populations have between 1 and 29 naturally occurring rooted crowns.

Populations are currently distributed as follows: 18 A-ranked, 47 B-ranked, 40 C-ranked, and 70 D-ranked, and they occur in all three regions across the range of the species. Thus, we conclude that this criterion has been substantially exceeded.

Criterion 2 states that for each A-ranked and B-ranked population described in criterion 1, population viability analysis (PVA) indicates 95 percent probability of persistence within the next 20 years, or for any population that does not meet the 95 percent persistence standard, the population meets the definition of viable. For delisting purposes, viability is defined as: Seed production is occurring; the population is stable or increasing, based on at least 10 years of censusing; and appropriate management techniques are in place.

Seven A-ranked and 14 B-ranked populations are considered viable, based on a PVA or 10 years of data. Thus, we conclude that this criterion has been exceeded.

Delisting criterion 3 states that the land on which each of the 34 populations described in delisting criterion 1 occurs is owned by a government agency or private conservation organization that identifies maintenance of the species as one of the primary conservation objectives for the site, or the population is protected by a conservation agreement that commits the private landowner to habitat management for the species.

This criterion was intended to ensure that habitat-based threats for the species are addressed. At the time of listing, the Service determined that without regular management, suitable habitat for this species would be quickly lost through the process of forest succession. The revised recovery plan identified the most critical biological constraint and need for the recovery of running buffalo clover as its dependence on disturbance to maintain filtered sunlight (Service 2007, p. 22). This requirement informed the recovery strategy of active management to remove competing vegetation and selectively remove trees to prevent overshading. Key to this recovery strategy was the protection and ecological management of various-sized populations throughout the species' geographic range. Small populations (C- and D-ranked populations) were included because they contribute as much as large populations to the overall level of the species' genetic diversity, which is important for survival of the species as a whole.

Currently, 22 populations meet this criterion, as follows: 2 A-ranked, 10 B-ranked, 6 C-ranked, and 4 D-ranked. There are 4 more B-ranked populations than required. Although these additional higher ranked populations can count for lower ranked populations, this criterion has still not been fully met. However, 66 additional populations occur on publicly owned lands, such as national forests, State lands, and local parks, thereby minimizing threats from habitat loss and degradation.

The forest management plans for both the Monongahela and Wayne national forests include direction and guidelines to avoid and minimize impacts of forestry practices on running buffalo clover. These forestry management practices, as conditioned through running buffalo clover measures included in their respective forest plans, are compatible with running buffalo clover conservation. The forest plans include forest-wide standards and guidelines; compliance with standards is mandatory.

The Wayne National Forest plan's standards for running buffalo clover require measures to protect populations during prescribed fire activities, avoid mechanical construction of firelines in known occupied habitat, and protect populations during road and trail construction, and a forest-wide guideline restricts application of herbicides within 25 feet of known running buffalo clover populations (U.S. Forest Service 2006, p. 2-22). In addition, the Wayne National Forest signed a Memorandum of Understanding with the Service and the Ohio Department of Natural Resources in 2021 to ensure the protection and management of running buffalo clover by maintaining the appropriate level of disturbance, controlling invasive species, and ensuring the appropriate level of sunlight where running buffalo clover is found on the national forest.

The Monongahela National Forest plan includes standards to avoid conducting prescribed burns, constructing fuel breaks, and implementing activities, such as construction of new roads or ditching for pipelines, in running buffalo clover areas. Guidelines include implementing habitat management measures to maintain and restore running buffalo clover populations, timing maintenance mowing to benefit running buffalo clover, avoiding use of potentially invasive species for seeding/mulching, and monitoring the effects of grazing on running buffalo clover (U.S. Forest Service 2011, pp. II-27-II-28). Thus, although this criterion is not met in the manner specifically identified in the recovery plan, we conclude that the intent of the criterion to ensure that sufficient populations were protected from threats into the future has been met.

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 must consider these same five factors in delisting a species. According to 50 CFR 424.11(e), we shall delist a species if the best scientific and commercial data available 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.

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 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.

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 this section, we review the biological condition of the species and its resources, and the influences to assess the species' overall viability and the risks to that viability.

The revised recovery plan for running buffalo clover (Service 2007, p. 14) identified the major threats to this species throughout its range as habitat destruction, habitat succession, and invasive plant competition (Factor A). Land development and the consequential loss of habitat can also be a threat to running buffalo clover. Natural succession from open to dense canopy in forests within the range of running buffalo clover occurs over a 30- to 40-year time span, depending on the dominant species and aspect of the site. Because the species relies on periodic disturbances to set back succession and/or open the tree canopy to create and maintain the partial to filtered sunlight it requires, activities that interfere with natural disturbance processes can negatively affect populations of running buffalo clover. Conversely, activities that periodically set back natural succession can benefit the species.

Current logging practices may benefit running buffalo clover. At the Fernow Experimental Forest in north-central West Virginia, running buffalo clover is most often associated with skid roads in uneven-aged silvicultural areas (Madarish and Schuler 2002, p. 121). Populations may initially decrease after logging, but then rebound to higher than pre-disturbance levels (Madarish and Schuler 2002, p. 127).

Depending on the circumstances, it appears that both overgrazing and no grazing at all can be threats to running buffalo clover. In Kentucky, overgrazing poses threats to running buffalo clover, but removal of cattle from clover populations has resulted in overshading and competition from other vegetation (White et al. 1999, p. 10). Periodic grazing at the Bluegrass Army Depot has provided the moderate disturbance needed to maintain running buffalo clover (Fields and White 1996, p. 14).

Nonnative species, such as bluegrass ( Poa pratensis ) and white clover ( Trifolium repens ), compete with running buffalo clover for available resources (Jacobs and Bartgis 1987, p. 441). Other nonnative species that affect running buffalo clover include Japanese stiltgrass, garlic mustard ( Alliaria petiolata ), Japanese honeysuckle ( Lonicera japonica ), Amur honeysuckle ( Lonicera maackii ), and multiflora rose ( Rosa multiflora ). Threats by invasive competition can be mediated by treating the invasive plants by hand removal, herbicide application, and/or mowing. Although nonnative species are widespread across the range of running buffalo clover, not all running buffalo clover sites are affected by invasive species. For example, 14 of the 31 sites (45 percent) in Ohio have one or more nonnative species present at varying densities, and 8 of those sites are managed for invasive species control.

The habitat needs of running buffalo clover on Federal, State, and locally owned lands are often included in plans or agreements for those lands (Factor D). The Monongahela National Forest Land and Resource Management Plan (U.S. Forest Service 2011, pp. II-27-II-28) and Wayne National Forest Revised Land and Resource Management Plan (U.S. Forest Service 2006, pp. 2-22, D-16) both include habitat management and protection measures for running buffalo clover, as does the Wayne National Forest's recently signed memorandum of understanding. The Bluegrass Army Depot in Kentucky protects and manages running buffalo clover under an Endangered Species Management Plan (Floyd 2006, pp. 30-37), included as part of their Integrated Natural Resource Management Plan, and all running buffalo clover populations at the Army Depot are covered by these management actions (Littlefield 2017). A memorandum of understanding between the Ohio Historical Society, Ohio Division of Natural Areas and Preserves, and the U.S. Fish and Wildlife Service provides for running buffalo clover habitat protection and management. These plans and agreements also provide for education and outreach efforts and surveying and monitoring for running buffalo clover. Some of these agreements automatically renew at the end of their 5-year period while others have the option to renew. The agreement with the Ohio Historical Society does not have an expiration date. We expect that these plans and agreements will remain in place and habitat management will continue after delisting running buffalo clover.

In total, 22 populations are under some form of management that incorporates specific needs of running buffalo clover, and 66 additional populations occur on publicly owned lands where regulatory mechanisms now exist that prevent loss from development (Factor D). Although the species benefits from active management, it does not appear to rely on management actions as demonstrated by the 59 populations that have been found over the last 10 years at sites where natural processes and/or various human activities are maintaining some suitable habitat for running buffalo clover. For these reasons, threats from habitat destruction, habitat succession, and invasive species have been reduced or are being adequately managed such that they are not affecting the species' viability.

When the species was listed in 1987, overutilization for scientific or educational purposes (Factor B) was identified as a threat, given that only one population consisting of four individuals was known at the time (52 FR 21478, June 5, 1987). Today, with 175 populations known, collection for scientific or educational purposes is very limited and distributed among many populations and is no longer considered a threat (Service 2017, p. 17).

Running buffalo clover is listed as endangered or threatened under State laws in Missouri, Indiana, Ohio, and Kentucky (Factor D). The laws in Ohio and Missouri prohibit commercial taking of listed plants. We are aware of only one unpermitted collection in 2015 when a population in West Virginia appeared to have been dug up and the main plant group removed (Douglas 2015). The purpose of the collection is unknown. Despite this one event, running buffalo clover is not known to be used for any commercial or recreational purposes, and we have no information that commercial or recreational collection will occur in the future.

At the time of listing in 1987, disease (Factor C) was also predicted to threaten running buffalo clover (52 FR 21478, June 5, 1987). Jacobs and Bartgis (1987, p. 441) suggested that the decline of this species may have partially centered on a pathogen introduced from the exotic white clover; however, no specific disease has been identified over the intervening years (Service 2008, p. 10). A number of viral and fungal diseases, including cucumber mosaic virus and the comovirus, are reported to have attacked the species in greenhouses at the Missouri Botanical Garden (Sehgal and Payne 1995, p. 320), but no evidence has been gathered showing these viruses' impact on the decline of running buffalo clover in the wild (Service 2008, p. 10).

Parasitism by root-knot nematodes ( Meloidogyne spp.) is common in clovers and often limits productivity in cultivated clovers used as forage crops (Quesenberry et al. 1997, p. 270) (Factor C). Investigations have been conducted on the effects of root-knot nematodes on native North American clovers, including running buffalo clover. After inoculation of the parasite, running buffalo clover displayed high resistance to three of the four nematode species analyzed, and only an intermediate response to the fourth species of nematode (Quesenberry et al. 1997, p. 270). Thus, the threat from this parasite is not considered significant.

Herbivory by a variety of species has been reported for running buffalo clover (Factor C). In Missouri, running buffalo clover plants are repeatedly grazed by rabbits, rodents, and slugs (Pickering 1989, p. 3). Similar observations have been made in Kentucky (Davis 1987, p. 11). The Fayette County, West Virginia, population was eaten to the ground by a groundhog, but more than a dozen rooted crowns were observed at the population the following year. White-tailed deer can also consume large amounts of running buffalo clover (Miller et al. 1992, pp. 68-69). Although a population may be entirely consumed during a growing season, plants may return again the next year. The best available information indicates that herbivory is not a threat to the species.

Running buffalo clover populations often display widely fluctuating population size (USFWS 2020, unpublished data). The cause for changes in population size may be due to disturbance, weather patterns, management strategy, natural succession, or other unknown factors. Small populations are at an increased risk of extirpation due to these stochastic events, which could impact all individuals in a small population (Factor E). The cyclic nature of running buffalo clover and the high probability of small populations disappearing one year and returning a subsequent year, may lead to difficulty in protecting small populations. However, the number (110) and distribution of C- and D-ranked populations now known across the species' range indicate that small population size is not a threat to the running buffalo clover.

The loss of large herbivores, such as bison and white-tailed deer, after European settlement may have resulted in no effective means of dispersal remaining for running buffalo clover (Cusick 1989, p. 477) (Factor E). Deer have now returned to pre-settlement numbers, but dispersal and establishment of new populations of running buffalo clover by white-tailed deer may not be significant (Ford et al. 2003, p. 427). With 175 occurrences of running buffalo clover now known, inadequate seed dispersal does not appear to be having population-level effects.

Although researchers have speculated that inbreeding depression may have contributed to the decline of running buffalo clover (Hickey et al. 1991, p. 315; Taylor et al. 1994, p. 1,099) (Factor E), selfed seeds have been shown to germinate well and develop into vigorous plants (Franklin 1998, p. 39). However, temporal variations in seed quality have been reported. Seed quality may be correlated with rainfall; quality decreases in years with unusually high rainfall (Franklin 1998, p. 38). With 175 occurrences of running buffalo clover now known, the impacts of poor seed quality do not appear to affect entire populations, nor do these impacts persist for any extended period of time.

Under future emission scenarios, including Representative Concentration Pathway (RCP) 4.5 and RCP 8.5, the effects of climate change in the foreseeable future are expected to result in rising average temperatures throughout the range of running buffalo clover, along with more frequent heat waves and increased periods of drought (Intergovernmental Panel on Climate Change (IPPC) 2014, p. 10), which may affect growth of running buffalo clover. For example, a prolonged drought in Missouri in 2012 may have impacted a running buffalo clover population for the next 2 years as plants were not observed again until 2015 (McKenzie and Newbold 2015, p. 20).

High-precipitation events are also expected to increase in number, volume, and frequency in mid-latitude areas (IPCC 2014, p. 11). Several running buffalo clover populations are located within areas prone to flooding. Infrequent high-flow events create moderate disturbance, which may be beneficial for this species. But increasing the magnitude or frequency of high-flow events may increase storm flows and intensify disturbance from flood events, which may create excessive disturbance and alter the habitat suitability for running buffalo clover. In addition, increased annual precipitation may lead to decreased seed quality.

According to IPCC, “most plant species cannot naturally shift their geographical ranges sufficiently fast to keep up with current and high projected rates of climate change on most landscapes” (IPCC 2014, p. 13). Shifts in the range of running buffalo clover as an adaptation to climate changes are unlikely, due to the limited dispersal of seeds, restriction to specific habitat types, and the lack of connection between most populations.

The effects of climate change may also result in a longer growing season and shorter dormant season, which may change flowering periods. For example, blossoms of running buffalo clover have been turning brown at the beginning of June (Becus 2016); and in 2016 and 2017, running buffalo clover plants in Ohio began blooming in April, which is the earliest this species had been observed blooming (Becus 2017). For some plant species, a change in flowering period may create an asynchrony between prime bloom time and when specific pollinators are available, resulting in a reduction in pollination and subsequent seed set. However, because running buffalo clover can be pollinated by a diversity of bee species, significant asynchrony with pollinators is not expected to occur.

Climate change presents a largely unknown influence on the species, with potential for negative and beneficial impacts. Populations of running buffalo clover occur within various ecoregions within the species' range and are capable of recovering from stochastic events, such as droughts and heavy precipitation and high stream flows. Running buffalo clover is not dependent on particular species of pollinators and appears adaptable to potential changes to pollinator communities. This indicates that populations will continue to be viable in the foreseeable future in the face of climate change.

Many of the stressors discussed in this analysis could work in concert with each other and result in a cumulative adverse effect to running buffalo clover ( e.g., one stressor may make the species more vulnerable to the effects of other threats). However, most of the potential stressors we identified either have not occurred to the extent originally anticipated at the time of listing (collection, disease), are no longer a threat in light of the many populations discovered since the time of listing, or are adequately managed as described in this proposal to delist the species (habitat destruction and succession, invasive species). In addition, for the reasons discussed in this final rule, we do not anticipate stressors to increase on publicly owned lands or lands that are managed for the species.

Synergistic interactions are possible between the effects of climate change and effects of other threats, such as nonnative plant invasion. However, it is difficult to project how the effects of climate change will affect interaction or competition between species. Uncertainty about how different plant species will respond under a changing climate makes projecting possible synergistic effects of climate change on running buffalo clover too speculative. However, the increases documented in the number of populations since the species was listed do not indicate that cumulative effects of various activities and stressors are affecting the viability of the species at this time or into the future. Post-delisting monitoring will monitor the status of running buffalo clover and its habitat to detect any changes in status that may result from removing the species from the List of Endangered and Threatened Plants (50 CFR 17.12(h)).

In our proposed rule published on August 27, 2019 (84 FR 44832), we requested that all interested parties submit written comments on the proposal by October 28, 2019. We also requested public comments on the draft PDM plan. We contacted appropriate Federal and State agencies and other interested parties and invited them to comment on the proposal. In accordance with our peer review policy published on July 1, 1994 (59 FR 34270) and our August 22, 2016, Director's Memorandum “Peer Review Process,” we solicited expert opinion from five knowledgeable individuals with scientific expertise that included familiarity with the running buffalo clover and its habitat, biological needs, and threats.

During the comment period, we received 24 comments on the proposal to delist running buffalo clover and the draft PDM plan: 2 from peer reviewers, 4 from States, 2 from Federal agencies, and 16 from the public. All comments are posted at http://www.regulations.gov under Docket No. FWS-R3-ES-2018-0036. Some public commenters support the delisting of running buffalo clover; some did not state whether or not they support the delisting; and others do not support delisting, although a subset of these, including one State and one peer reviewer, would support downlisting to threatened status. We did not receive any requests for a public hearing.

We reviewed all comments we received from peer reviewers, States, Federal agencies, and the public for substantive issues and new information regarding running buffalo clover. Substantive information provided during the comment period is addressed below and, where appropriate, is incorporated directly into this final rule and the PDM plan.

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 all States within the species' range and received comments from four States.

(1) Comment: The Office of Kentucky Nature Preserves commented that running buffalo clover is trending towards recovery and meets almost all the criteria specified in the recovery plan. They stated that only one cooperative agreement currently protects running buffalo clover in Kentucky and expressed concern that additional cooperative management agreements are needed in Kentucky in order to fully meet delisting criterion 3. The Office of Kentucky Nature Preserves indicated that Kentucky plans to continue to implement additional management agreements and enroll more private lands with the registered natural area program.

Response: Although there is currently only one cooperative agreement protecting running buffalo clover in Kentucky, this agreement protects multiple running buffalo clover populations that occur at the site. We acknowledge that delisting criterion 3 has not been fully met in the manner specifically identified in the recovery plan. However, we conclude that the intent of the criterion to ensure that sufficient populations were protected from threats into the future has been met. Also, the discovery of new populations at unmanaged sites indicates that the species does not wholly rely on management to maintain populations, as we believed when the recovery criterion was drafted. Additional management agreements will contribute to the ongoing success of this species, and we appreciate Kentucky's commitment to continuing to work on and increase conservation of running buffalo clover.

(2) Comment: Missouri Department of Conservation (MDC) concurred with the proposal to delist running buffalo clover, but expressed concern that removing the protections of the Act may result in further decline of this species in Missouri. MDC stated that running buffalo clover will continue to be a State endangered species in Missouri until the State's populations are recovered.

Response: We appreciate Missouri's commitment to continuing conservation efforts for the running buffalo clover. State protections will continue to enhance populations of the species. In addition, management agreements will continue to maintain suitable habitat and address stressors at 22 running buffalo clover sites after the species is delisted. Therefore, we do not expect an overall decline in the status of running buffalo clover in the future.

(3) Comment: MDC indicated that populations in Missouri are not considered secure and that management is necessary to maintain populations and remove invasive species. MDC indicated that Missouri would continue management for running buffalo clover and would assess the prioritization of ongoing management efforts and protected status of Missouri's populations.

Response: We agree that a lack of management or natural disturbance regime can lead to continued natural succession, a loss of suitable habitat, and a decline in running buffalo clover populations and that management efforts are necessary at some sites to address stressors and maintain suitable habitat. We appreciate the MDC's commitment to managing the populations of running buffalo clover in Missouri.

(4) Comment: Ohio Division of Natural Areas and Preserves stated that more management agreements are needed before criterion 3 for delisting is met and that downlisting to threatened is more appropriate at this time.

Response: Information obtained since the proposed listing rule was published on August 27, 2019, indicates there are currently 175 extant populations as follows: 18 A-ranked, 47 B-ranked, 40 C-ranked, and 70 D-ranked populations. Seven of the A-ranked and 14 of the B-ranked populations are considered viable, based on a PVA or 10 years of data. Based on this information, we conclude that sufficient number and distribution of viable populations occur across the species' range and delisting criteria 1 and 2 have been exceeded. We acknowledge that delisting criterion 3 has not been fully met in the manner specifically identified in the recovery plan. However, recovery of a species is a dynamic process, and we are not required to follow all of the guidance or meet all of the criteria provided in a recovery plan in order to conclude that a species no longer meets the definition of endangered or threatened.

The 22 populations currently under management agreements in conjunction with the 66 other populations on publicly owned lands are sufficient to eliminate or adequately reduce threats to the species now and into the foreseeable future. Additionally, the discovery of new populations at unmanaged sites indicates that the species does not wholly rely on management to maintain populations as we believed when the recovery criterion was developed. We conclude that threats to running buffalo clover have been reduced or are being adequately managed now and into the foreseeable future and that the intent of the criterion to ensure that sufficient populations were protected from threats into the future has been met. Therefore, running buffalo clover does not meet the definition of a threatened species.

(5) Comment: The Ohio Division of Natural Areas and Preserves stated the long-term viability of running buffalo clover in Ohio is uncertain, based on threats from invasive species, management needs, and number of populations in the poor category. They indicated that there are draft agreements with partners to protect an additional 11 running buffalo clover populations and that these agreements are helping to make progress in long-term viability of running buffalo clover in Ohio.

Response: We agree that a lack of management or natural disturbance regime can lead to a decline in running buffalo clover populations and that site-specific management plans are necessary to address stressors and maintain suitable habitat at some sites. However, the discovery of new populations at unmanaged sites indicates that the species does not wholly rely on management to maintain populations. Twenty-two running buffalo clover sites are currently under management agreements. Additional management agreements will contribute to the ongoing success of this species, and we appreciate Ohio's commitment to continuing to work on and increase protections for the running buffalo clover populations within the State.

(6) Comment: West Virginia Division of Natural Resources (WVDNR) agreed that running buffalo clover populations are sufficiently distributed to provide for resiliency, redundancy, and representation. WVDNR stated that they provisionally agree with running buffalo clover delisting, provided that written management plans specific to the species are developed for public lands, and agencies managing for running buffalo clover commit to these plans through at least the delisting monitoring period. They noted that there is a draft running buffalo clover site-specific management plan for the Monongahela National Forest, which will substantively reduce threats to populations on this national forest once finalized.

Response: We acknowledge that some populations that occur on public land are not protected by running buffalo clover-specific management plans. However, some, including those on Monongahela National Forest, are provided protection from the standards and guidelines in the resource management plans. Twenty-two additional running buffalo clover sites, nearly all of which occur on publicly owned lands, are currently protected by management agreements that provide specific measures to maintain habitat for the species. We expect that these will remain in place and habitat management will continue after delisting running buffalo clover. We support finalizing a site-specific management plan for running buffalo clover on the Monongahela National Forest to further enhance conservation of the species. Management agreements as currently written require frequent coordination with the Service. We have revised the PDM plan to include a reporting element on management actions during the PDM period for those sites with management plans or agreements in place.

(7) Comment: WVDNR reported that eight new element occurrences with a total of 13,000 to 15,000 rooted crowns were discovered after 2016, all on private land, but that those new occurrences are not protected because the State has no endangered species law and therefore should not count towards the number of occurrences cited within delisting criterion 1.

Response: Delisting criterion 1 is based solely on the condition of the populations without regard to protected status. However, because we have no information on the condition of each of those elemental occurrences, we did not include them in our calculations in this final rule regarding the number of populations that fulfill delisting criterion 1. These additional elemental occurrences support the trend of discovering new populations and recovery of this species.

(8) Comment: WVDNR did not agree with our conclusion that criterion 3 has been met for downlisting or delisting, stating that general natural resource management plans are not suitable for meeting the criterion.

Response: In the proposed listing rule, we had considered 9 populations that occur on the Monongahela National Forest as contributing to meeting this criterion because running buffalo clover is included in the forest management plan for the Monongahela. Although the forest plan provides direction and guidelines to avoid and minimize impacts of forestry practices on running buffalo clover, we now understand that a draft agreement has been developed between the U.S. Forest Service and WVDNR to provide additional conservation for the species. While a management plan that provides for additional conservation of running buffalo clover would benefit the species on the Monongahela National Forest, the current forest management practices, as conditioned through running buffalo clover measures included in the forest plan, are adequate to conserve the running buffalo clover on the Monongahela.

We now consider 22 populations as protected by management agreements; therefore, the 17 management agreements under criterion 3 for downlisting have been exceeded. We acknowledge that the 34 management agreements specified by delisting criterion 3 have not been met although additional agreements are in draft form. Recovery of a species is a dynamic process, and we are not required to meet all of the criteria provided in a recovery plan in order to conclude that a species no longer meets the definition of endangered or threatened. Delisting criterion 3 from the recovery plan was intended to ensure that habitat-based threats for the species are addressed. However, the discovery of new populations at unmanaged sites indicates that the species does not wholly rely on management to maintain populations as we believed when the recovery criterion was drafted. Although criterion 3 has not been met as specified in the recovery plan, we believe that its intention has been met between the 22 sites managed for the conservation of the species and the 66 additional locations on Federal and State lands. Because nearly all of the 22 managed populations occur on publicly owned lands, we expect management will continue in the foreseeable future. While we agree that additional management agreements would further enhance conservation for running buffalo clover, the 22 populations currently under management in conjunction with the 66 other populations on publicly owned lands are sufficient to indicate the species is not in danger of extinction now or likely to become so in the foreseeable future. We have revised the PDM plan to include a measure to track new management agreements finalized during the PDM period as well as to determine if all existing management agreements are being followed.

(9) Comment: WVDNR stated that the number of running buffalo clover occurrences in West Virginia is increasing but many extant occurrences are at risk.

Response: We agree that some extant occurrences, in particular D-ranked populations (containing fewer than 29 plants), are at risk; and in some years, no plants may be present during monitoring periods. However, 89 percent of running buffalo clover populations that were extant in West Virginia in 2007 are still present today. Overall, 63 running buffalo clover populations occur in West Virginia, of which 46 (70.8 percent) are A-, B-, or C-ranked populations, which are at lower risk of extirpation.

(10) Comment: WVDNR observed that project-driven surveys have resulted in the discovery of new running buffalo clover occurrences and noted that implementation of these projects may result in the expansion of the distribution of running buffalo clover as well as the spread of nonnative invasive species. The State expressed concern that the threat of nonnative invasive species may exceed the benefit of discovery of any new running buffalo clover occurrences.

Response: We acknowledge the ongoing presence of nonnative invasive species at some running buffalo clover sites. However, at this time, the best available data do not support a conclusion that the spread of nonnative invasive species will exceed the benefit of new running buffalo clover discoveries at these sites. Further, we have determined that the 22 running buffalo clover populations with management agreements, which do not include these newly discovered sites, in conjunction with the 66 occurrences on publicly owned lands are sufficient to eliminate or adequately reduce threats to the species now and into the foreseeable future.

(11) Comment: WVDNR noted that management plans for running buffalo clover should address (1) controlling succession so canopy closure does not exceed 80 percent, (2) controlling nonnative invasive species, and (3) preventing damage to populations from road management or usage and other actions that could remove a population or its habitat.

Response: We agree with these recommendations for management actions in general. Management plans are developed to address site-specific threats and ensure that actions are taken to maintain suitable habitat, including appropriate light levels. These management plans often include measures to control nonnative invasive species and prevent damage from multiple activities.

(12) Comment: The Monongahela National Forest in West Virginia provided information about soils on which running buffalo clover may occur. They suggested looking at running buffalo clover sites near road systems to determine if these populations could have been brought in from limestone quarries where a potential seed bed could have been established but may not be ideal for sustainability of the population. They also commented that temporary habitat for running buffalo clover can be created by periodic liming of forest soils but would not be sustainable.

Response: We agree with the comment that periodic liming of soils is not a sustainable activity and believe that there is enough habitat with suitable disturbance that liming is not needed. While seed is known to have been brought into sites through delivery of topsoil, we are unaware of any instances where seed has been transported from a quarry. We have incorporated additional information about soils into the Background section.

(13) Comment: The Wayne National Forest in Ohio commented that running buffalo clover will continue to receive protection for a minimum of 5 years after delisting as a species of conservation concern for the forest.

Response: We appreciate the Wayne National Forest's commitment to continuing to conserve running buffalo clover after the species is delisted. Continuing to manage running buffalo clover as a species of conservation concern on the Wayne National Forest will contribute to the ongoing success of this species.

(14) Comment: Two peer reviewers and several public commenters opined that the species should be downlisted to threatened rather than delisted.

Response: Current information indicates there are currently 175 extant running buffalo clover populations as follows: 18 A-ranked, 47 B-ranked, 40 C-ranked, and 70 D-ranked populations. Seven of the A-ranked and 14 of the B-ranked populations are considered viable, based on a PVA or 10 years of data. Based on this information, we conclude that sufficient number and distribution of viable populations occur across the species' range and delisting criteria 1 and 2 have been exceeded. We acknowledge that delisting criterion 3 has not been fully met in the manner specifically identified in the recovery plan. However, recovery of a species is a dynamic process, and we are not required to follow all of the guidance or meet all of the criteria provided in a recovery plan in order to conclude that a species no longer meets the definition of endangered or threatened. The 22 populations currently under management agreements in conjunction with the 66 other populations on publicly owned lands are sufficient to indicate the species is not in danger of extinction now or likely to be in the foreseeable future. Additionally, the discovery of new populations at unmanaged sites indicates that the species does not wholly rely on management to maintain populations as we believed when the recovery criterion was drafted. We conclude that threats to running buffalo clover have been reduced or are being adequately managed now and into the foreseeable future and that the intent of the criterion to ensure that sufficient populations were protected from threats into the future has been met. Therefore, running buffalo clover does not meet the definition of a threatened species.

(15) Comment: One peer reviewer indicated that running buffalo clover is not fully understood, nor are the historic habitat conditions in which it lived. Therefore, additional research is needed before delisting the species.

Response: Recent discoveries of new running buffalo clover sites have expanded our understanding of habitat preferences for the species. In making listing decisions under the Act, we rely on the best available scientific and commercial data, including these recent discoveries, which have led us to conclude that running buffalo clover does not meet the definition of an endangered or threatened species.

(16) Comment: One peer viewer noted that from 2001 to 2005 the number of running buffalo clover patches and rooted crowns at Blue Grass Army Depot (Depot) increased, mostly due to finding new patches. From 2005 to 2018, the number of patches and rooted crowns declined, likely due to the permanent loss of patches, indicating a long-term decline. Three public commenters also noted that the overall trend of running buffalo clover at the Depot has been declining since 2001, and one commenter indicated the cause of the decline is unknown.

Response: Although the number of patches at the Depot has decreased since 2005, the number of rooted crowns recorded in 2018 (3,939) is greater than that recorded in 2001 (1,160) but lower than the maximum observed in 2006 (9,574). Populations of this species fluctuate greatly and can decline for multiple years before rebounding. The populations that are now considered extirpated from the Depot were small, D-ranked populations. While the loss of patches could indicate an overall decline, the loss of small populations is not unexpected. Other landowners do not monitor by patch; therefore, it is difficult to compare this information to trends at other locations. However, we acknowledge that some protected populations have declined with no obvious cause. Notwithstanding these limited declines, we conclude that a sufficient number of populations across the range of the species will continue to be viable over the foreseeable future such that the species no longer meets the Act's definitions of an endangered species or a threatened species.

(17) Comment: One peer reviewer noted that running buffalo clover populations can appear, seem to prosper, and then disappear, including an A-ranked population, and many C- and D-ranked populations have disappeared.

Response: Running buffalo clover populations fluctuate over the years due to natural succession, variance in temperature and precipitation, and lack of disturbance. Due to their small size, D-ranked populations are most likely to disappear although larger populations have declined for unknown reasons. The PVA, conducted when the recovery plan was written, indicated that 17 populations were needed to maintain this species. This number was doubled to 34 populations needed to delist running buffalo clover. Currently, 175 populations are extant throughout the range of this species. This includes 18 populations that have at least 1,000 rooted crowns (A-ranked). An additional 47 running buffalo clover populations have between 100 and 999 rooted crowns (B-ranked). These higher ranked populations have a greater probability of remaining stable or increasing.

(18) Comment: One peer reviewer and two commenters opined that more management agreements are needed before delisting running buffalo clover, and four commenters expressed concern whether current management is sufficient to maintain recovery.

Response: Comparing the ranking of extant populations in 2007 to the ranking of those populations that continued to be extant in 2016, 17 percent of populations were increasing, and 59 percent were stable. These populations represent 76 percent of the populations present in 2007. In addition, we are now aware of 175 extant populations compared to 102 in 2007. Thus, we conclude that the trend for this species is stable or increasing.

Twenty-two running buffalo clover populations are currently under agreements that provide for ongoing management to maintain suitable habitat for running buffalo clover and adequately address or eliminate threats to those populations. While we acknowledge that delisting criterion 3 has not been fully met in the manner specifically identified in the recovery plan, we conclude that the intent of the criterion to ensure that sufficient populations are protected from threats into the foreseeable future has been met. Additionally, the discovery of new populations at unmanaged sites indicates that the species does not wholly rely on management to maintain populations as we believed when the recovery criterion was drafted. Based on this information, we conclude that running buffalo clover has recovered and no longer meets the definition of an endangered or threatened species.

(19) Comment: Two peer reviewers and a commenter identified nonnative invasive species as an ongoing threat to running buffalo clover that requires management, and these commenters specifically identified Japanese stiltgrass as causing declines of running buffalo clover.

Response: As discussed in the proposed listing rule and this final rule, nonnative invasive species, including Japanese stiltgrass, are present at several running buffalo clover sites. The management agreements in place for running buffalo clover include management actions to address nonnative invasive species, including Japanese stiltgrass. In addition, the PDM plan provides for monitoring for the presence of nonnative invasive species at running buffalo clover sites. Monitoring includes recording the level of severity of nonnative invasive species to prioritize sites for future monitoring.

(20) Comment: One peer reviewer and three commenters expressed concern that running buffalo clover would no longer receive management or monitoring and that funding for efforts to maintain proper habitat conditions would not be available after delisting.

Response: The populations that are under management agreements will continue to receive management to address site-specific threats and habitat needs, and we do not expect delisting will alter the ability of partner agencies to continue funding and implementing management agreements for running buffalo clover. Several States have indicated that they will continue to protect and manage running buffalo clover populations under existing State regulations. If unforeseen threats arise that are determined to endanger or threaten the long-term viability of running buffalo clover such that it meets the definition of a threatened or endangered species, we can use our authorities under section 4 the Act, including the emergency listing authorities at section 4(b)(7), to relist the species as appropriate.

(21) Comment: One peer reviewer and several commenters expressed concern that many populations of running buffalo clover are not stable or secure and that the species' recovery is a result of more surveys.

Response: Many populations of running buffalo clover have been discovered since 2007, with 175 extant populations known now compared to 102 in 2007. Seventy-six percent of the populations extant in 2007 were increasing or stable in 2016, indicating those populations are not in decline. With 22 populations now under management agreements and another 66 populations occurring on publicly owned lands, threats to the species have been reduced or are being adequately managed such that they are not affecting the species' viability. Based on this information, we conclude that running buffalo clover has recovered and no longer meets the definition of an endangered or threatened species.

(22) Comment: One commenter stated that the methods for assessing viability prescribed in the Recovery Plan do not address the stress caused by invasion of exotic species or other emerging or impending factors that might impair the viability of the species.

Response: The PVA is just one factor used to consider the current trend of the species and whether it is declining, stable, or increasing. The PVA provides a guide in determining the minimum number of needed populations, as well as the size and physical distribution of those populations, and is only one part of the recovery criteria. In addition, recovery criterion 3 addresses habitat-based threats, such as nonnative invasive species. The 22 populations that have management agreements will be protected from the threat of succession by implementation of various management or disturbance actions to reset succession. The management agreements also include actions to address the threats of nonnative invasive species.

(23) Comment: One commenter stated that populations in West Virginia are extensive and cover a wide range of habitat conditions, indicating that running buffalo clover may not be as limited in habitat requirements.

Response: Running buffalo clover populations in West Virginia are larger in quantity and area and occur in a wider range of habitat types than populations in other States. We note that all habitats are subject to succession, requiring periodic natural disturbance or targeted management to continue to maintain viable running buffalo clover populations.

(24) Comment: One commenter stated that running buffalo clover was once widespread and abundant but most of the historically known sites are now extirpated and the species survives in a fraction of its former range.

Response: Running buffalo clover was not known historically as widespread and abundant. Fewer than 30 sites were known in 8 States, including 2 specimens from Arkansas and 1 from Kansas (Brooks 1983). Although most of these historically known sites are extirpated, 175 extant running buffalo clover sites are now known across most of its historical range in 6 States.

(25) Comment: One commenter stated that, although more than 150 occurrences are now known, the vast majority of those are very small and not ranked as good occurrences.

Response: Delisting criterion 1 states that 34 populations, in total, are distributed as follows: 2 A-ranked, 6 B-ranked, 6 C-ranked, and 20 D-ranked populations across at least 2 of the 3 regions in which running buffalo clover occurs (Appalachian, Bluegrass, and Ozark). The number of populations in each rank is based on what would be required to achieve a 95 percent probability of the persistence within the next 20 years.

Populations are currently distributed as follows: 18 A-ranked, 47 B-ranked, 40 C-ranked, and 70 D-ranked. Although approximately two-thirds of running buffalo clover populations are ranked as C or D (99 or few rooted crowns or 33 or fewer crowns, respectively), delisting criterion 1 has been substantially exceeded. We conclude that a sufficient number of populations across the range of the species will continue to be viable over the foreseeable future; thus, we determine that the species no longer meets the Act's definitions of an endangered species or a threatened species.

(26) Comment: One commenter expressed concern that small patches have a high probability of becoming extirpated and will not naturally recover without active restoration and management.

Response: Smaller populations may have a greater probability of becoming extirpated, but that does not indicate that all small populations will eventually become extirpated. Some small populations have continued to persist for years.

As a disturbance-adapted species, running buffalo clover benefits from both management as well as natural disturbance activities, such as flooding, grazing by herbivores, trail use by animals, and small forest openings due to disease or insect impacts. Ten C- and D-ranked populations are under management agreements.

(27) Comment: One commenter stated that monitoring and collection has shown an expansion of populations in multiple States.

Response: New populations have been found in multiple States since the time of the original listing, as a result of multiple statewide and many project-specific surveys. For example, an increase in project-specific surveys in Pennsylvania in recent years resulted in most of the new running buffalo clover populations identified there. The newly discovered populations in Pennsylvania are south of a population in West Virginia that we have been aware of since the 2007 Recovery Plan Revision. In addition, running buffalo clover sites occur in West Virginia southeast of these Pennsylvania populations. Therefore, these populations most likely have been in existence, and their discovery is not the result of an expansion in the range of this species but rather an increase in the number of project-specific surveys. That said, this new information about these additional sites changes our understanding of the degree to which this species faces threats to its continued existence. The species is not as rare or restricted as was thought at the time of listing, and this is a contributing piece of our overall determination that the species is no longer in danger of extinction, now or in the foreseeable future.

(28) Comment: One commenter, citing Leugers (2016), stated that running buffalo clover in Ohio still experiences declines in remaining areas and is in need of more robust management plans.

Response: Leugers (2016) included no information from the 2008 or 2011 5-year reviews and did not use the most recent scientific information available. Since the 2007 Recovery Plan, we have learned much about running buffalo clover. Populations in Ohio include two that are A-ranked and nine that are B-ranked. Seven sites in Ohio are protected with management agreements for ten running buffalo clover populations.

(29) Comment: One commenter stated that additional information is still needed on the best management regimes to maintain flowering populations.

Response: Although recent discoveries of new running buffalo clover sites have expanded our understanding of the habitat types where the species can occur, running buffalo clover still requires partial to filtered sunlight and a prolonged pattern of moderate, periodic disturbance to maintain those conditions. A variety of management tools, such as grazing, mowing, trampling, or selective logging, have proven effective at maintaining suitable habitat and sustaining running buffalo clover populations. Natural succession results in increased canopy closure and a decrease in flowering. Maintaining appropriate habitat should result in continued flowering although the level of flowering may also be impacted by rainfall and various local weather conditions.

(30) Comment: One commenter indicated that running buffalo clover will continue to be threatened by ATV (all-terrain vehicle) use and fossil fuel development and infrastructure on the Wayne National Forest.

Response: Although ATV use was a problem at one site on the Wayne National Forest in the past, ATV use has not been documented as a threat to this running buffalo clover population since 2009. Running buffalo clover will continue to be managed on the Wayne National Forest as a species of conservation concern.

(31) Comment: One commenter indicated that running buffalo clover is damaged by grazing on Federal lands.

Response: We are not aware of any instances where grazing on Federal lands is impacting the running buffalo clover at the population level. Light to moderate grazing can provide the disturbance that running buffalo clover requires. The Depot in Kentucky grazes domesticated animals for management purposes, but no other federally owned properties use grazing by domesticated animals as a management tool. Running buffalo clover does not occur on any federally owned property that permits large-scale grazing.

(32) Comment: One commenter stated that there has been no measurable increase or spread of running buffalo clover ( e.g., to Pennsylvania).

Response: New populations of running buffalo clover are discovered nearly every year. That said, these populations have most likely been in existence for some time, and new populations found in Pennsylvania are not likely to be the result of an expansion in the range of this species. However, the increase overall in the number of populations known to be in existence changes our understanding of the degree to which the species is in danger of extinction, now or in the future. The original listing of the species was based on the lack of extant populations that had been identified at that time in spite of surveys conducted throughout its known range. Since then, multiple statewide and many project-specific surveys have been conducted and have discovered additional populations of which we were not formerly aware. Currently, 175 extant populations are known.

(33) Comment: One commenter indicated that several element occurrence (E.O.) ranks are erroneous.

Response: We have used the best scientific and commercial data available in the proposed rule and this final rule. The commenter did not provide any supporting documentation or information for specific EOs.

(34) Comment: One commenter indicated that seeds of running buffalo clover maintained in appropriate storage for over 25 years can still be viable after scarification. The commenter stated that recovery work should include vouchering seed from each running buffalo clover population to a seed bank with clear origin and sample size details.

Response: Running buffalo clover seed in the seedbank may be viable for a long time as other rare legumes can be viable in cold storage for decades (Albrecht 2017). An extremely small amount of running buffalo clover seed can germinate after being in soil and exposed to outdoor temperatures for over 10 years (Baskin 2021). In addition, populations have been absent for up to 4 consecutive years before plants were observed again (USFWS 2021, unpublished data). The long-term limit of seed viability in the natural environment has not been determined as Baskin's research ended after 11 years. Collection of seed for vouchering purposes may be useful for its conservation and management and should have limited impacts to source populations. Because the best available scientific and commercial data indicate that running buffalo clover has recovered and is no longer an endangered or threatened species, we are finalizing the delisting of the species.

(35) Comment: One commenter noted that running buffalo clover grows readily in controlled settings. Another public commenter stated that the survival of transplanted plants in the wild is very low and not a successful recovery option.

Response: Running buffalo clover grows well in a greenhouse environment; however, planting from seed or transplanting in the wild has had very limited success. Collection of seed or other vegetative material should be used only as a last resort to maintain genetic material before a population is permanently lost.

(36) Comment: WVDNR stated that the 5-year monitoring period will not detect changes in status of running buffalo clover in time to allow for remedial actions if populations decline and suggested that monitoring the occurrences in the Monongahela National Forest management plan annually for 5 years would reflect running buffalo clover population trend and response to management actions.

Response: We recognize that there can be significant year-to-year variation in populations that may cause long-term population trends not to become apparent for more than 5 years. However, by evaluating the level of canopy coverage and the threat of nonnative invasive species as prescribed in the PDM plan, these threats can be addressed before impacts to running buffalo clover occur. Monitoring is conducted to determine the rangewide status of running buffalo clover (declining, stable, or increasing) and its threats. It is not intended to evaluate individual management actions.

We have modified the PDM plan to target the running buffalo clover populations with management plans or agreements and the viable A- and B-ranked populations plus an additional 20 populations rangewide for monitoring. Because approximately 50 percent of all running buffalo clover populations are on private land, we recommend that half of the populations identified for post-delisting monitoring rangewide also occur on private land. Therefore, these 57 populations that are monitored should be representative of the rangewide ownership (private versus public) and as well as the rangewide diversity of population size (A-, B-, C-, and D-ranked populations).

(37) Comment: WVDNR indicated that the PDM plan should include visiting a select group of running buffalo clover occurrences, with the majority on public land, which would provide data on those populations' responses to management for control of succession and nonnative invasive species and protection from habitat destruction.

Response: The goal of the monitoring plan is to observe the trends of a representative sample of individual occurrences to determine whether the species continues to be recovered and not to evaluate management activities. Because most populations are not monitored, the selection of a group of occurrences should reflect the proportion of sites that are managed as well as a diversity of population sizes. There should be a representative number of A-, B-, C-, and D-ranked populations monitored. We have incorporated this concept into the PDM plan, where appropriate.

(38) Comment: WVDNR commented that the monitoring protocol and field monitoring form in the draft PDM plan are not adequate and are inconsistent with the monitoring protocol in the 2007 Running Buffalo Clover Recovery Plan. They recommended using the existing census methodology to provide more consistency and better detect population trends and declines.

Response: We acknowledge that the protocol in the PDM plan differs from that in use since 2007. While the existing methodology would provide more consistency in comparing individual populations pre- and post-delisting, we note that there are substantially more running buffalo clover populations now than in 2007. The protocol in the PDM plan addresses the challenges of limited time and resources to monitor a much larger number of populations. In addition, the proposed protocol reflects the greater stability of large A-ranked populations and prioritizes monitoring of smaller ranked populations as these would be more likely not to survive a stochastic event without a significant reduction in size.

Currently, the number of A-, B-, C-, and D-ranked populations are counted and evaluated. If a population drops to a lower rank ( e.g., from an A-rank to a B-rank), we consider that change to constitute a decline. Because there is annual variability, we do not evaluate the specific individuals of each occurrence. By calculating the change in the number of A-, B-, C-, and D-ranked populations at the end of the 5-year post-delisting monitoring period, we will be consistent with how the species was evaluated in each of the last 5-year reviews. Therefore, we conclude that the data to be collected will be adequate to determine population rankings and rangewide population trends for post-delisting monitoring purposes. However, we see benefit to the more intensive monitoring suggested by WVDNR by those who are committed to managing the species post-delisting and support any efforts to do so.

(39) Comment: WVDNR recommended an expansion of data gathering about nonnative invasive species across running buffalo clover's range.

Response: The purpose of the nonnative invasive species query in the PDM plan is to determine whether nonnative invasive species present a threat at running buffalo clover occurrences and if that threat is being addressed. We understand that additional information on nonnative invasive species would be useful. However, due to limited time and resources, this is beyond the scope of the PDM plan.

(40) Comment: WVDNR stated that use of 95 percent canopy closure is insufficient as a trigger for selective harvest and suggests that the trigger should not be greater than 80 percent canopy cover.

Response: Because running buffalo clover grows in the ground layer, it can be affected by shading from the understory as well as the canopy. The 95 percent canopy cover is used as a trigger for selective harvest because we expect selective harvesting would significantly reduce canopy cover. Other forms of management can be considered before a site reaches 95 percent canopy cover as these other forms of management are not expected to reduce the canopy cover as dramatically. We have updated the PDM plan to clarify.

(41) Comment: One peer reviewer stated that the monitoring plan does not ensure an adequate level of management.

Response: The PDM plan is intended to determine whether a significant number of running buffalo clover occurrences are in decline or are stable or increasing and will focus primarily on those sites that meet all aspects of recovery. Monitoring will help evaluate whether management is needed, but the PDM plan does not require management. The monitoring data form will ask if appropriate management is occurring.

(42) Comment: One peer reviewer recommended changing the definition of “response triggers” to require monitoring more sites for a longer period of time.

Response: Due to the limitation of time and resources, additional monitoring is not feasible for most sites. While we encourage more frequent monitoring at sites that have that capability, the level of monitoring prescribed in the PDM plan is sufficient to assess the population trend of running buffalo clover for the purposes of post-delisting monitoring, which is to determine the rangewide status of running buffalo clover (declining, stable, or increasing) and its threats to evaluate whether the species continues to be recovered.

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

After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we found that significant threats identified at the time of listing (52 FR 21478, June 5, 1987) have been eliminated or reduced. The main threat at many sites is habitat destruction, habitat succession, and competition with nonnative invasive species (Factor A). Management to benefit running buffalo clover has been implemented since the time of listing and has shown to be effective. Twenty-two populations are under some form of management that addresses the needs of running buffalo clover. Because all of the managed populations occur on publicly owned lands, we expect management will continue in the foreseeable future. Delisting criterion 3 from the recovery plan was intended to ensure that habitat-based threats for the species are addressed. Although this criterion has not been met as specified in the recovery plan, we believe that its intention has been met between the 22 sites managed specifically for the conservation of the species plus the 66 additional locations on Federal and State lands.

Additionally, the discovery of new populations at unmanaged sites indicates that the species does not wholly rely on management to maintain populations as we believed when the recovery criterion was drafted. The 22 populations currently under management agreements in conjunction with the 66 other populations on publicly owned lands are sufficient to eliminate or adequately reduce threats to the species now and into the foreseeable future. During our analysis, we found that other factors believed to be threats at the time of listing—including overutilization for commercial, recreational, scientific, or educational purposes (Factor B), disease and predation (Factor C), and inbreeding depression and poor seed quality and dispersal (Factor E)—are no longer considered threats, and we do not expect any of these conditions to substantially change into the foreseeable future. Since listing, we have become aware of the potential for the effects of climate change (Factor E) to affect all biota, including running buffalo clover, but the magnitude and frequency of this potential threat are generally unknown at this time. While available information in the most recent 5-year review indicates that running buffalo clover may be responding to a change in temperatures or precipitation patterns, the lack of a declining trend in running buffalo clover populations suggests the effects of ongoing climate change are not a threat to the species within the foreseeable future. Thus, after assessing the best available information, we determine that running buffalo clover is not in danger of extinction now or likely to become so in the foreseeable future throughout all of 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 running buffalo clover 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 running buffalo clover, 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.

For running buffalo clover, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following threats: Habitat destruction, habitat succession, and competition with nonnative invasive species, including cumulative effects. Threats from habitat destruction have been identified at running buffalo clover sites across its range. Habitat succession is a natural process that occurs in multiple habitat types across the species' range. Nonnative invasive species are widespread across the range of running buffalo clover. We found no concentration of threats in any portion of the running buffalo clover's range at a biologically meaningful scale. Therefore, no portion of the species' range can provide a basis for determining that the species is in danger of extinction now or likely to become so in the foreseeable future in a significant portion of its range, and we find the species is not in danger of extinction now or likely to become so in the foreseeable future in any significant portion of its range. This 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 running buffalo clover does not meet the definition of an endangered species or a threatened species in accordance with sections 3(6) and 3(20) of the Act. Therefore, we are removing running buffalo clover from the List of Endangered and Threatened Plants.

This rule revises 50 CFR 17.12(h) to remove the running buffalo clover from the Federal List of Endangered and Threatened Plants. Because critical habitat has not been designated for this species, this rule does not affect 50 CFR 17.96. On the effective date of this rule (see DATES , above), the prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, no longer apply to this species, and 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 running buffalo clover.

Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a system to monitor effectively, for not less than 5 years, all species that have been recovered and delisted. The purpose of this post-delisting monitoring is to verify that a species remains secure from risk of extinction after it has been removed from the protections of the Act. The monitoring is designed to detect the failure of any delisted species to sustain itself without the protective measures provided by the Act. 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 post-delisting monitoring programs, but we remain responsible for compliance with section 4(g) of the Act and, therefore, must remain actively engaged in all phases of post-delisting monitoring. We also seek active participation of other entities that are expected to assume responsibilities for the species' conservation post-delisting.

We prepared a PDM plan for running buffalo clover in cooperation with the States. The PDM plan is designed to verify that running buffalo clover remains secure from the risk of extinction after delisting by detecting changes in its status and habitat throughout its known range. The final PDM plan discusses the current status of the taxon and describes the methods to be used for monitoring after the taxon is removed from the Federal List of Endangered and Threatened Plants. The PDM plan: (1) Summarizes the roles of the PDM cooperators; (2) summarizes the status of running buffalo clover at the time of delisting; (3) discusses monitoring methods and sampling regimes; (4) describes frequency and duration of monitoring; (5) defines triggers for potential monitoring outcomes; (6) outlines reporting requirements and procedures; and (7) proposes a schedule for implementing the PDM plan and conclusions of the PDM effort.

The PDM plan guides monitoring of running buffalo clover following similar methods to those used prior to delisting. Monitoring will consist of: Counting (or estimating for A-ranked populations) the number of rooted crowns and flowering stems, recording recruitment of seedlings, photographing running buffalo clover occurrences, mapping the location of individual patches within the occurrences, and identifying potential threats, as may be appropriate. PDM will begin in the first growing season following the effective date of this rule (see DATES , above) and will extend, at a minimum, through the fifth growing season following delisting. Monitoring through this time period will allow us to address potential negative effects to running buffalo clover, such as nonnative invasive species and canopy closure.

The PDM plan identifies measurable management thresholds and responses for detecting and reacting to significant changes in the running buffalo clover's habitat, distribution, and persistence. If monitoring detects declines equaling or exceeding these thresholds, the Service, in combination with other PDM participants, will investigate causes of these declines, including considerations of habitat changes, nonnative invasive species, stochastic events, or any other significant evidence. Such investigation will determine if running buffalo clover warrants expanded monitoring, additional habitat management, or relisting as an endangered or a threatened species under the Act. If such monitoring data or an otherwise updated assessment of threats indicate that relisting running buffalo clover is warranted, emergency procedures to relist the species may be followed, if necessary, in accordance with section 4(b)(7) of the Act.

The final PDM plan is available on http://www.regulations.gov under Docket No. FWS-R3-ES-2018-0036 and on the Service's Great Lakes Region website at https://www.fws.gov/midwest/endangered/plants/rbcl/index.html.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), need not be prepared in connection with regulations pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

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 are not aware of running buffalo clover occurring on any Tribal lands, and we did not receive any comments from Tribes on the proposed delisting rule.

A complete list of all references cited in this rule is available at http://www.regulations.gov at Docket No. FWS-R3-ES-2018-0036, or upon request from the Ohio Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this rule are staff members of the Service's Ohio Ecological Services Field Office and Great Lakes Regional Office, Bloomington, Minnesota.

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. Martha Williams, Principal Deputy Director Exercising the Delegated Authority of the Director, U.S. Fish and Wildlife Service, approved this document on August 3, 2021, for publication.

The Gulf reef fish fishery, which includes red snapper, is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The final rule implementing Amendment 40 to the FMP established two components within the recreational sector fishing for Gulf red snapper: the private angling component, and the Federal for-hire component (80 FR 22422, April 22, 2015). Amendment 40 also allocated the red snapper recreational ACL (recreational quota) between the components and established separate seasonal closures for the two components. On February 6, 2020, NMFS implemented Amendments 50 A-F to the FMP, which delegated authority to the Gulf states (Louisiana, Mississippi, Alabama, Florida, and Texas) to establish specific management measures for the harvest of red snapper in Federal waters of the Gulf by the private angling component of the recreational sector (85 FR 6819, February 6, 2020). These amendments allocate a portion of the private angling ACL to each state, and each state is required to constrain landings to its allocation.

As described at 50 CFR 622.23(c), a Gulf state with an active delegation may request that NMFS close all, or an area of, Federal waters off that state to the harvest and possession of red snapper by private anglers. The state is required to request the closure by letter to NMFS, providing dates and geographic coordinates for the closure. If the request is within the scope of the analysis in Amendment 50A, NMFS publishes a notice in the Federal Register implementing the closure for the fishing year. Based on the analysis in Amendment 50A, Texas may request a closure of all Federal waters off the state to allow a year-round fishing season in state waters. As described at 50 CFR 622.2, “off Texas” is defined as the waters in the Gulf west of a rhumb line from 29°32.1′ N Lat., 93°47.7′ W long. to 26°11.4′ N Lat., 92°53′ W long., which line is an extension of the boundary between Louisiana and Texas.

On December 7, 2020, NMFS received a request from the Texas Parks and Wildlife Department (TPWD) to close the EEZ off Texas to the red snapper private angling component for the first part of the 2021 fishing year. Texas requested that the closure be effective from January 1, 2021, until June 1, 2021. NMFS determined that the TPWD request was within the scope of analysis contained within Amendment 50A, and subsequently published a temporary rule in the Federal Register implementing that closure request (85 FR 78792; December 7, 2020). In that rule, NMFS noted that TPWD would monitor private recreational landings, and if necessary, request that NMFS again close the EEZ in 2021 to ensure the Texas regional management area ACL is not exceeded.

On July 28, 2021, NMFS received a new request from the TPWD to close the EEZ off Texas to the red snapper private angling component for the remainder of the 2021 fishing year. Texas requested that the closure be effective on August 5, 2021, through the end of the fishing year. NMFS has determined that this request is within the scope of analysis contained within Amendment 50A, which analyzed the potential impacts of a closure of all Federal waters off Texas when a portion of the Texas quota has been landed. As explained in Amendment 50A, Texas intends to maintain a year-round fishing season in state waters during which the remaining part of Texas' ACL could be caught.

Therefore, the red snapper recreational private angling component in the Gulf EEZ off Texas will close on August 5, 2021, until 12:01 a.m., local time, on January 1, 2022. This closure applies to all private-anglers (those on board vessels that have not been issued a valid charter vessel/headboat permit for Gulf reef fish) regardless of which state they are from or where they intend to land.

On and after the effective dates of the closure in the EEZ off Texas, the harvest and possession red snapper in the EEZ off Texas by the private angling component is prohibited and the bag and possession limits for the red snapper private angling component in the closed area is zero.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.23(c), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest.

Such procedures are unnecessary because the rule implementing the area closure authority and the state-specific private angling ACLs has already been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because a failure to implement the closure immediately would be inconsistent with Texas's state management plan and may result in less access to red snapper in state waters.

For the aforementioned reasons, there is good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

Atlantic HMS fisheries, including BFT fisheries, are managed under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ). The 2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. Section 635.27 divides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States among the various domestic fishing categories, per the allocations established in the 2006 Consolidated HMS FMP and its amendments. NMFS is required under the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest quotas under relevant international fishery agreements such as the ICCAT Convention, which is implemented domestically pursuant to ATCA.

Under § 635.28(a)(1), NMFS files a closure action with the Federal Register for publication when a BFT quota (or subquota) is reached or is projected to be reached. Retaining, possessing, or landing BFT under that quota category is prohibited on or after the effective date and time of a closure notice for that category until the opening of the relevant subsequent quota period or until such date as specified.

As described in § 635.27(a), the current baseline U.S. quota continues to be 1,247.86 metric tons (mt) (not including the 25 mt ICCAT allocated to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area). The baseline quota for the General category is 555.7 mt. Each of the General category time periods (January, June through August, September, October through November, and December) is allocated a portion of the annual General category quota. The June through August subquota is 277.9 mt.

As of August 2, 2021, reported landings total approximately 252.5 mt. Based on these landings data, as well as average catch rates and anticipated fishing conditions, we project that the General category June through August subquota will be reached and exceeded shortly. Therefore, retaining, possessing, or landing large medium or giant BFT ( i.e., measuring 73 inches (185 cm) curved fork length or greater) by persons aboard vessels permitted in the Atlantic tunas General category and HMS Charter/Headboat category (while fishing commercially) must cease at 11:30 p.m. local time on August 4, 2021. The General category will automatically reopen September 1, 2021, for the September 2021 subquota time period. This action applies to Atlantic tunas General category (commercial) permitted vessels and HMS Charter/Headboat category permitted vessels with a commercial sale endorsement when fishing commercially for BFT, and is taken consistent with the regulations at § 635.28(a)(1).

Fishermen may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize their survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at https://www.fisheries.noaa.gov/resource/outreach-and-education/careful-catch-and-release-brochure/.

NMFS will actively monitor the BFT fishery closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustments, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General and HMS Charter/Headboat category vessel owners are required to report the catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov, using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

After the fishery reopens on September 1, depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustments are necessary to ensure available subquotas are not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register . In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 635, which was issued pursuant to section 304(c), and is exempt from review under Executive Order 12866.

The Assistant Administrator for NMFS finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. This fishery is currently underway and delaying this action would be contrary to the public interest as it could result in BFT landings exceeding the adjusted June through August 2021 General category quota, which could result in the need to reduce quota for the General category later in the year and thus could affect later fishing opportunities. Affording prior notice and opportunity for public comment to implement the quota transfer is impracticable and contrary to the public interest as such a delay would likely result in exceedance of the General category June through August fishery subquota or earlier closure of the fishery while fish are available on the fishing grounds. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.