Executive Summary Purpose of the Regulatory Action

This final rule enhances the utility of the publicly available aviation data in the Origin—Destination Survey of Airline Passengers (O&D), which will provide significant benefits to a variety of data users. The rule enhances the quality of the data by: (1) reducing the long-term reporting burden on the O&D Reporting Carriers; (2) making the O&D more relevant and useful to airlines, aviation policy makers, researchers, and stakeholders; (3) obtaining more accurate ticket data from a broader group of air carriers and markets; (4) reducing the time it takes to disseminate the O&D and the international Schedule T100(f); and (5) increasing the statistical correlation between the O&D and the Schedule T100 and Schedule T100(f) (T100/T100(f)) for data validation purposes. These actions are taken under the statutory authorities in 49 U.S.C. 329(b)(1), which requires the Department to collect and disseminate information on the origin and destination of airline passengers including, at a minimum, information on: (1) the origin and destination of passengers in interstate air transportation, and (2) the number of passengers traveling by air between any two points in interstate air transportation. In addition, 49 U.S.C. 40101(a)(7) states that in carrying out economic regulatory activities, the Secretary shall consider as being in the public interest a regulatory system that responds to the needs of the public and in which decisions are reached promptly to make it easier to adapt the air transportation system to the present and future needs of, among other things, the commerce of the United States. In fulfillment of these responsibilities, DOT collects data submitted under:

• 14 CFR part 217: Reporting Traffic Statistics by Foreign Air Carriers in Civilian Scheduled, Charter, and Nonscheduled Services, whereby foreign air carriers authorized by DOT to provide scheduled passenger services to or from the U.S. must file Form 41 Schedule T100(f), which includes the data elements prescribed in § 217.5.

• 14 CFR part 241: Uniform System of Accounts and Reports for Large Certificated Air Carriers, under which all large, certificated air carriers must report their traffic movements by filing Form 41 Schedule T100, Financials Information, and O&D fare information.

• 14 CFR part 298: Exemptions for Air Taxi and Commuter Air Carriers, whereby air taxi operators and commuter air carriers, which are provided certain exemptions from some of the economic regulatory provisions of Subtitle VII of Title 49 of the United States Code, are required to submit simplified Financials and T100 traffic.

In this rulemaking, the Department finalizes updates to its method of collecting and processing O&D fare information under Part 241 to: (1) allow full automation of the reporting of the O&D by aligning reporting with current airline passenger accounting practices; and (2) enhance the accuracy and usefulness of DOT's collection of aviation traffic data. The Department also makes a corresponding change to Part 298 to reflect removal of the reporting exemptions for U.S.-based air carriers and commuter air carriers with a business model that limits them to flying aircraft with fewer than 60 seats. DOT does not make any changes to the regulatory text of Part 217 in this final rule.

In this final rule, the Department amends 14 CFR part 241 to create Section 19-8 to classify all certificated air carriers and commuter air carriers holding out scheduled passenger service as O&D Reporting Carriers by removing the exemptions from reporting given to U.S.-based air carriers and commuter air carriers with a business model that limits them to flying aircraft with fewer than 60 seats. DOT further requires those Reporting Carriers to submit certain data items as part of this data collection: Reporting Carrier, Reporting Month and Reporting Year, Record Identification Number (RIN), Issuing Carrier, Total Amount, Tax Amount, Airport Code, Operating Carrier Code, Marketing Carrier Code, Scheduled Flight Year, Scheduled Flight Month, Dwell Time, Via Airport, and Purchase Window Group. In addition, this rule changes who is responsible for submitting data to the O&D from the air carrier using the first flight coupon (first lift) to the air carrier that issues the ticket. For air travel taking place on or after July 1, 2025 (See DATES section), upon successful implementation of Section 19-8, air carriers must collect data pursuant to Section 19-8, and such data will constitute the data of record for the Passenger Origin—Destination Survey. The July 2025 data will be due to be reported to the DOT on September 15th, 2025. Reporting pursuant to section 19-7 will no longer be required for air travel taking place on or after July 1, 2025, and DOT intends to remove Section 19-7 from 14 CFR part 241 at that time for clarity.

DOT issued a Notice of Proposed Rulemaking (NPRM) to improve the collection of aviation traffic data in the Origin—Destination Survey of Airline Passenger Traffic (O&D). (86 FR 5032; Jan. 19, 2021). The NPRM solicited public comments on the following matters: (1) changing the reporting carrier from first lifted carrier to issuing carrier; (2) increasing the sample size to 40 percent; (3) requiring all carriers who conduct scheduled service to report O&D data; (4) whether to require all foreign air carriers providing scheduled service to the United States to submit O&D data; (5) whether smaller air carriers would need further accommodation beyond the proposed methods for reporting O&D data to DOT; (6) changes to the set of data elements—specifically, adding “Reporting Year”, “Reporting Month” of travel, all Airports in the itinerary including “Via Point” airports, “Dwell Time”, “Exchanged Ticket Indicator”, “Frequent Flyer Program Ticket Indicator”, “Total Amount”, “Tax Amount”, and “Record Identification Number”, as well as removing “Fare Basis Code”; (6) whether users of the O&D would find utility in including “Cabin Class” as a replacement data element to Fare Basis Code; (7) whether optional or ancillary ticket purchase fees collected from most tickets should be included in the Total Amount of a ticket; (8) the appropriate amount of time to withhold O&D data from dissemination; (9) adding the descriptor “citizens and non-citizens” to those other persons eligible to receive itineraries with foreign origin and destination points in the O&D if they have a specifically identified need to do so; (10) whether to replace the phrase “specifically identified need” with a defined list of permissible, specifically identified needs that would be codified in the regulation and, if so, what the defined list should include; (11) shortening the time that T100(f) data is withheld from six months to three months; (12) a reasonable compliance date to begin no earlier than one year from the publication of the final rule; (13) reporting data under Sec. 19-7 until such time that data reported pursuant to Sec. 19-8 replaces data reported pursuant to Sec. 19-7 as the statistics of record; (14) the utility to users and additional burden to O&D reporting carriers of reporting individual tax and fee amounts instead of reporting both as an aggregate amount and; (15) comments related to the annual burden estimate for reporting carriers to collect and submit O&D data.

In response to this NPRM, the Department received comments from the following entities: Ailevon Pacific Aviation Consulting (APAC), Cirium, Airports Council International—North America (ACI-NA), the Regional Airline Association (RAA), Airlines for America (A4A), Airline Tariff Publishing Company (ATPCO), Airbus Americas, Inc. (Airbus), and Airline Data Inc., (ADI).

The Final Regulatory Impact Analysis (RIA) examined the economic impact, in terms of all benefits accruing to producers of the data (air carriers) and users of the data, by subtracting the estimated cost of not taking regulatory action from the estimated costs of implementing regulatory action through this final rulemaking. We applied this same principle to the government, by illustrating the estimated costs to the public of not taking regulatory action and subtracting estimated costs of implementing regulatory action. Combined, the annualized benefit of the regulatory changes totals $10,367,702 over ten years, which amounts to an annualized savings $1,476,128, when discounted using a seven percent rate. As such, the Department believes that the rule is in the public interest as it will provide both producers and users of the O&D with a more robust data set of passenger activity in our national air transportation system.

The Department has carefully reviewed and considered comments received from commenting parties. The Department sought further clarification of comments by A4A and received supplemental information in a letter dated December 16, 2021, which was placed in the docket. 1 This section details the comments received on the topics raised in the NPRM, and addresses some additional comments received in relation to topics applicable to the O&D.

(1) Changing the reporting carrier from first lifted carrier to issuing carrier.

In the NPRM: 14 CFR part 241 Sec. 19-7(a) states that all U.S. large, certificated air carriers conducting scheduled passenger operations (except helicopter carriers) shall participate in a Passenger Origin-Destination (O&D) Survey covering domestic and international operations. Regardless of which carrier issues the ticket, the carrier who provides the first reportable lift as defined in Sec. 19-7 is required to report the data in the ticket to DOT. In the NPRM, DOT proposed changing this requirement so that each reporting carrier as defined in proposed Sec. 19-8 will only report tickets it issues, with a provision for Category Two tickets as discussed later.

Comments: RAA stated that it believes the proposed changes will foster better data quality and reduce the burden for the airlines. A4A stated that it supports the transfer of responsibility for reporting a ticket to the issuing carrier rather than the current practice of reporting by the first lifting O&D reporting carrier, except in the case of Category Two tickets. ACI-NA stated that it generally supports shifting the reporting requirement on the issuing carrier, as it believes it would “probably result in more accurate data reporting and reduce confusion as to who should report a particular itinerary.” ACI-NA also states that foreign carriers, regardless of whether they are immunized, should be required to report O&D data, as it believes there could be a loss of information where the issuing carrier is a non-immunized foreign carrier that sold tickets on a U.S. codeshare partner who is the operator of the flight.

DOT Response: After careful consideration of the comments provided, DOT has determined that shifting the reporting responsibility from the air carrier providing first reportable lift to the issuing air carrier of the ticket is best aligned with current air carrier revenue accounting practices and will simplify the burden on the reporting air carriers. DOT will not require foreign air carriers to be included as reporting air carriers for the O&D. Foreign air carriers covered by a grant of anti-trust immunity under 49 U.S.C. 41308 and 41309 (Immunized carriers) will continue to report data similar to O&D data pursuant to the conditions of their immunity, but under new requirements identical to the requirements of this rule. ACI-NA's concern regarding loss of information associated with non-immunized foreign carriers issuing tickets where a U.S. code-share partner operates the flight is an example of a Category 2 ticket reporting event. 2 In this case, the first U.S. carrier that is also an O&D reporting carrier in the ticket sequence would be responsible for reporting the ticket. DOT recognizes it may be an additional burden, or not possible, for reporting carriers to obtain data elements from the carrier that issues the ticket as is the case with the current 19-7 system, the new rule will, however, serve to minimize the number of tickets that must be reported in this manner. DOT has also prescribed in the regulatory text which data elements are mandatory and which data elements may be omitted for Category 2 tickets of the type ACI-NA has described. (See Sec. 19-8.4—Reporting of O&D Data). This will enable data users to have access to the full detail of data available under the new rule when it is provided while also allowing data users to identify those tickets that may not be a complete record. DOT recognizes the concern expressed in the comments that requiring all carriers that serve the United States to report O&D could result in similar efforts on the part of other governments, which could remove any potential cost savings of the new rule.

Final Rulemaking Text: DOT adopts its proposal to change the reporting carrier from first lifted carrier to issuing carrier. See § 19-8.3(a)—Applicability.

(2) Increasing the sample size to 40 percent.

In the NPRM: 14 CFR part 241 Sec 19-7(c) states that a statistically valid sample of flight coupons shall be selected for reporting purposes and shall consist of at least one percent of the total lifted ticket flight coupons for all large domestic markets listed in the Instructions and 10 percent for all others, inclusive of domestic and international markets. DOT proposed increasing this sample size to 40 percent and removing the one percent and 10 percent requirements, explaining that this increase was necessary for increased dataset utility, and to capture activity in smaller markets where a 10 percent sample often produces few to no lifted, reported tickets. Studies cited in the NPRM validated a 40 percent sample size as sufficient to capture data related to smaller markets, which, under current reporting, have a statistically insufficient number of tickets to represent true market activity. 3

Comments: RAA generally supports increasing the random sample size to 40 percent and agrees that a sample size of 40 percent is both necessary and sufficient to ensure statistical accuracy for measuring smaller aviation markets. RAA also states that the sample size should not exceed 40 percent. A4A supports the proposed increase in the random sample size to 40 percent for the reasons we articulated in the NPRM. A4A states in its comments that exceeding the 40% threshold was proven to be unnecessary to achieve the goals of the O&D reporting and, given the additional workload associated with the new fields combined with reporting twelve times per year instead of four times per year, would create unnecessary burden for little, if any, benefit. ACI-NA recommends expanding the sample size from 10 percent to 100 percent. ACI-NA points to a 2005 NPRM on the O&D data which proposed to increase the reporting to 100%, noting that DOT indicated it would improve the accuracy and comprehensiveness of the dataset.

DOT Response: DOT concludes that the 40 percent sample size is sufficient to achieve the objective of the rulemaking, to provide a dataset that is comprehensive, useful to its users, and ensure that the burden placed on the reporters of the data is reasonable. The conclusions of the MIT study cited in the NPRM validated a 40% ticket reporting threshold to achieve the purpose of the rulemaking, particularly when coupled with the removal of the minimum aircraft size requirement of 60 seats, as discussed in Issue 3. DOT further believes that, at this time, collecting a higher percentage of ticket data than what is validated as sufficient by the MIT study to support the objectives of the final rule is unnecessary. Therefore, DOT will set the sample size reporting requirement to 40 percent of eligible tickets to be submitted by reporting air carriers.

The primary ticket's right-most digit of the standard ticket document number forms the basis for the random sample size. Any Reporting Carrier that does not assign ticket numbers to passenger journeys or does not assign ticket numbers such that the final, right-most digit is not randomly assigned must develop an alternative method of creating a valid 40 percent sample for DOT approval.

Final Rulemaking Text: DOT adopts its proposal to increase the sample size for reporting to 40 percent. See § 19-8.4(b)—Reporting of O&D Data.

(3) Requiring all carriers who conduct scheduled service to report O&D data.

In the NPRM: 14 CFR part 241 Sec. 19-7(a) states that that all U.S. large, certificated air carriers conducting scheduled passenger operations (except helicopter carriers) shall participate in a Passenger Origin—Destination (O&D) Survey covering domestic and international operations. In the NPRM, DOT proposed changing this requirement so that all U.S. certificated air carriers who conduct scheduled passenger service, regardless of aircraft size or seat count, would be designated as a reporting carrier for the O&D.

Comments: RAA and A4A support the broadening of U.S. carrier O&D reporting to include all carriers who conduct scheduled passenger service. ACI-NA supports the change in aircraft size reporting requirements to eliminate the 60-seat threshold for reporting O&D data.

DOT Response: DOT has concluded that expansion of the reporting pool of carriers for the O&D to all U.S. certificated air carriers is critical for a properly representative sample of market activity at small, medium-, and large-hub airports. Under the existing data collection, a 10 percent sample size by carriers operating at least one aircraft with more than 60 seats often omits small communities that are served by smaller aircraft, or that have relatively low enplanement counts. Therefore, we require in this final rule that all U.S. certificated air carriers providing scheduled service be included in the reporting carrier pool for the O&D.

Final Rulemaking Text: DOT adopts its proposal to require all U.S. certificated air carriers who conduct scheduled service to report O&D data. See § 19-8.3(a)—Applicability.

(4) Whether to require all foreign air carriers providing scheduled service to the United States to submit O&D data.

In the NPRM: 14 CFR part 241 Sec 19-7 does not require foreign air carriers providing scheduled service to the United States to submit data to the O&D. Foreign air carriers required by a grant of anti-trust immunity under 49 U.S.C. 41308 and 41309 to report data similar to O&D data will continue to do so but under new requirements that are identical to the requirements of this rule.

Comments: A4A believes that the costs of requiring all foreign air carriers to report O&D data are far outweighed by the benefits of doing so, and also believes that foreign governments may seek reciprocal reporting requirements of U.S. certificated air carriers, significantly increasing the data-reporting burden on those carriers. A4A also believes that requiring all foreign carriers to report, especially those not involved in immunized joint ventures, could provide unbalanced information to carriers, thus conferring a competitive advantage. Furthermore, A4A questions the ability of non-immunized carriers to provide timely Survey reporting, which could delay Department reporting and possibly generate data inaccuracies. ACI-NA and ADI are in favor of requiring foreign air carriers to provide the same data as U.S. carriers. ADI believes that domestic users of the Survey data have had trouble identifying foreign traffic itineraries and that by having foreign carriers submit to the O&D, users will be closer to having a fully inclusive Survey that provides greater insight into the domestic traveler.

DOT Response: DOT understands that there are potential challenges and repercussions in requiring all foreign air carriers to report O&D data. Specifically, foreign air carriers may not collect the same type of data that has long been required by DOT. While the collection of this data could create a more complete O&D record, enacting this requirement would be burdensome to the foreign airlines and cause substantial risks as stated by A4A. Therefore, we will not require foreign air carriers to report O&D data under this rule. Our practice to require immunized carriers to submit data is independent of this rulemaking and will continue. See DOT's response on Issue 1, changing the reporting carrier to the issuing carrier, for additional detail related to reporting tickets that involve foreign air carriers.

Final Rulemaking Text: DOT does not require O&D reporting by foreign carriers in this final rule. See § 19-8.3(a)—Applicability.

(5) Whether smaller air carriers would need further accommodation beyond the proposed methods for reporting O&D data to DOT.

In the NPRM: DOT understands that including a larger pool of reporting air carriers to the O&D may create new burdens on smaller air carriers not previously included as reporting air carriers. The NPRM asked whether further accommodations were necessary for the successful submission of O&D data by smaller air carriers.

Comments: RAA supports the option of using outside third-party vendors to make data collection and reporting services available to all O&D Reporting Carriers. RAA stated that this would be helpful to small carriers even when these third parties may need to undertake development work to support the changes envisioned in this NPRM. A4A strongly supports allowing any reporting air carrier to engage outside companies to assist with the reporting of O&D data to DOT, if it should choose to do so. A4A comments that the Department should utilize a secure file transfer protocol methodology to allow reporting air carriers to transmit data through an automated process. ATPCO states that a third-party fee-for-service provider could develop and implement a centralized solution for collecting and processing airline data, and states that this type of service has been offered in the airline tariff space, and could also be used for data collection for the O&D. ADI states that it believes the processing and distribution of the DOT Survey data needs to stay entirely within the DOT to ensure neutrality of the O&D, and if some outsourcing is used in the processing of this data, a competitive bid process open to wholly-owned domestic entities with expertise in the airline data realm should be initiated.

DOT Response: In this final rule, DOT does not outsource the responsibility of combining and distributing O&D data to a third party. This will maintain the continued neutrality in the distribution of the data. In the NPRM, DOT discussed whether use of a third-party provider could assist air carriers in collecting and organizing ticket data prior to transmission to DOT for combining and dissemination. DOT expects any third-party who offers such services to reporting air carriers to closely adhere to any instructions and directives published regarding the O&D data, reducing the burden on reporting air carriers, particularly small air carriers, by giving them options to comply with the requirements of the rule. The use of a third-party provider does not remove the responsibility of the reporting carrier to ensure and certify that its data is reported accurately and on schedule, nor does it remove the role of DOT in combining the data from the reporting carriers, validating and quality testing the data before publication. DOT will also explore enhancements to the existing data submission portal to enable automated transfers of data (“SFTP”, “FTPS”, “API's”), as well as alternatives to allow air carriers to submit O&D data using methods that DOT expects will require minimal, if any, software development on the part of the air carrier. This may further reduce the reporting burden imposed by the rule.

Final Rulemaking Text: Under the final rule, third-party vendors could make data collection and reporting services available to O&D Reporting Carriers who choose to utilize such services. See § 19-8.7—Submission of Data.

(6) Changes to the set of data elements: Expanded to include scheduled year and month of travel, all airports in the itinerary including “via” airports, dwell time, exchanged ticket indicator, frequent flyer program tickets, total amount, tax amount, currency and fractions of a dollar, and record identification number, Fare Basis Code removed.

In the NPRM: DOT asked for comment regarding the proposed set of data elements under Sec. 19-8, to better ascertain any challenges in collecting such data. Using input from commenters (included in the rulemaking docket) and considering how data users might benefit from various data elements collected and disseminated, DOT determined the following data elements would be useful, and in most cases necessary, for various stakeholders using the data to understand market trends and make informed decisions. These data elements also strike a balance between more detailed information and the cost of collecting such information.

Comments: A4A and ACI-NA expressed support for the inclusion of Scheduled Year and Month of Travel as data elements in the O&D, while A4A specifically objected to the reporting of the scheduled date of departure of each flight coupon, citing concerns regarding the dissemination of commercially sensitive information. ACI-NA stated that it does not support eliminating the date of the ticket purchase.

DOT Response: DOT views inclusion of Scheduled Year of Travel and Scheduled Month of Travel as critical to the utility of the dataset because these elements allow users of the data to analyze trip information for specific time periods even when components of the trip span multiple quarters or months. Therefore, DOT will include these data elements in the O&D. It should be noted that the O&D currently does not collect the date of ticket purchase or provide the date of each flight associated with an itinerary. DOT does not require collection of these ticket purchase and flight date elements in this final rule because of the commercially sensitive nature of date-specific ticket information. Date of ticket purchase could allow carriers to determine individual market dynamics such as ticket booking curves.

Final Rulemaking Text: DOT adopts its proposal to require reporting of the “Scheduled Month of Travel” and “Scheduled Year of Travel”. See § 19-8.4(c)—Reporting of O&D data, 19-8.2—Definitions. DOT also adds definitions of “Scheduled Flight Month” and “Scheduled Flight Year” in the rule for clarity. These terms are defined using their commonly understood meaning and as described in the NPRM, as follows: Scheduled Flight Month means month for a departure from an airport in the sequence of travel for a ticket. Scheduled Flight Year means year for a departure from an airport in the sequence of travel for the ticket.

Comments: A4A and ACI-NA support reporting Via Airports as a data element in the O&D. A4A advises the Department to recognize that carriers may need time to build the infrastructure to link revenue accounting systems to other data sources. ATPCO states that this data element will be difficult to derive exclusively from the reported sales data, but that this data is available at the time of ticket purchase and can be calculated from schedule and flight status at that time.

DOT Response: DOT views inclusion of Via Airports as a necessary data element in the O&D, particularly to give visibility to flights that appear to be nonstop on a coupon basis but are flights containing more than one flight segment. This will allow users of the data to better determine true nonstop O&D market share and price, versus all other travel types including one-stop and “through” flights in which both segments have the same flight number but for which only a single coupon is submitted to the O&D. DOT notes that, although ATPCO may have concerns about including this information in their sales data, A4A member carriers stated that inclusion of this element represented an acceptable burden particularly when taking into account other efficiencies made possible by other components of the rule. 4 For these reasons, DOT will include Via Airports as a data element in the O&D.

Final Rulemaking Text: DOT adopts its proposal to require reporting of “Via Airports.” See § 19-8.4(c)—Reporting of O&D data, 19-8.2—Definitions DOT also adds a definition of Via Airport (Point(s)) in the final rule for clarity. The term is defined using its commonly understood meaning and as described in the NPRM, as follows: Via Airport (Point(s)) means any point(s) of stopover at intermediate airports as part of a “direct” or “through” flight. These are points that are not usually recorded on a ticket as the passenger does not generally deplane from the aircraft at the intermediate point.

Comments: A4A supports the inclusion of the Dwell Time data element in the O&D, so long as it reflects scheduled times rather than actual operated times, and in minutes rather than in one-hour increments. A4A also stated in their comments that using dwell time minutes:

(i) eliminates the need for carriers to round the number to the nearest hour; (ii) greatly increases the utility of the data to air carriers, DOT, and other users (for purposes of their own preferred logic to break trips and determine true O&D); and, (iii) makes it much easier to review and audit records wherein, for example, a “2” could otherwise indicate any dwell time between 61 and 120 minutes. ACI-NA supports including this data element in the O&D. ATPCO states this will be difficult to derive exclusively from the reported sales data, similar to its argument of capturing Via Airports.

DOT Response: DOT views Dwell Time (in minutes) as critical to proper determination of a flight journey. Including Dwell Time as a reported data element will enable DOT and other data users to determine a flight journey, true O&D, more accurately. DOT intends to combine the dwell time information with the existing travel routing evaluation process to provide the most reliable estimate of a flight journey, or true O&D; therefore, DOT includes Dwell Time as a required data element in the O&D. DOT also requires reporting of Dwell Time as scheduled times, in minutes rather than in one-hour increments, consistent with industry practice. This will enable users of the data to determine intended destination of travel with greater consistency. DOT will also require carriers to report Dwell Time in excess of an entire day (1,440) minutes as “9999” and allow carriers to insert a “B” (for “Break”) where the carrier recommends the trip be broken (according to internal business logic) for segments not issued by the reporting carrier should Dwell Time be unavailable.

Final Rulemaking Text: DOT adopts its proposal to require reporting of “Dwell Time”, except that Dwell Time is reported in minutes rather than rounded to the nearest whole hour to add specificity to the recorded data, as suggested by commenters. See § 19-8.4(c)—Reporting of O&D data, 19-8.2—Definitions. DOT also adds a definition of Dwell Time in the final rule for clarity. The term is defined using its commonly understood meaning and as discussed in the NPRM but with additional specificity, as follows: Dwell Time means scheduled elapsed time (in minutes) between each ticketed coupon. Dwell Time is not required to be reported at Via Airport stops. When Dwell Time exceeds 1,440 minutes, or 24 hours, report “9999”.

Comments: A4A urges the Department not to include Exchanged Ticket Indicator on the list of elements collected, stating that it is extremely cumbersome and fraught with unavoidable challenges when trying to calculate the total and tax amounts to be reported. Furthermore, it stated that partial ticket reissues constitute a small proportion of tickets but would constitute a substantial proportion of O&D reporting workload. ACI-NA states that it is supportive of including this data element in the O&D. ATPCO states that a requirement to provide an Exchanged Ticket Indicator would lead to inaccurate or inconsistent data submissions resulting from some exchanged/reissued tickets containing data reflecting the original sale of the exchange ticket or a carrier not having access to the original ticket information when provided that original ticket number with the exchange ticket.

DOT Response: In light of the comments received on the inclusion of an Exchanged Ticket Indicator, DOT has determined that the inclusion of this element is unlikely to aid accurate reporting and would therefore unnecessarily increase the reporting burden on the reporting carriers. Therefore, we will not require this data element be reported in the O&D.

Comments: A4A states that its member carriers oppose the inclusion of a Frequent Flyer Program Ticket Indicator, citing that this information is commercially sensitive, and that even if the reporting air carrier is the issuing air carrier, the information about FFP redemption is not always known, and if known, may reside in a separate database, creating additional burden to air carriers to research and report the information. A4A also stated this would be extremely hard to ascertain on Category Two tickets. A4A further states in a letter dated December 16, 2021  5 to DOT that it believes this information lies beyond the scope of what is needed by the Department and other users to accurately measure passenger traffic and fares in O&D markets. APAC is in favor of including this data element for more comprehensive market analysis. Cirium states that the inclusion of this element would be beneficial for detailed fare analysis. ACI-NA states that it supports the inclusion of this data element. ATPCO states that it would be difficult for air carriers to report this data, as each airline has its own methodology of identifying these tickets, and the proposal would require a third-party service provider to create mapping tables for each air carrier to be able to identify such tickets. ADI supports a flag to denote frequent flyer tickets but has concerns with placing this burden on airlines because it is possible to identify the majority of this type of ticket using the fields currently reported in the Survey. Given the complexities associated with this proposal, ADI believes the retention of Fare Class/Cabin Class is a higher priority.

DOT Response: In light of the comments received on the Frequent Flyer Program Ticket Indicator, we believe that requiring this data element in the O&D would be difficult for air carriers to provide on a consistent basis and lead to inaccuracy and agree that Frequent Flyer Program Ticket Indicator information would be especially difficult to include for Category Two tickets. Therefore, we will not require this data element to be reported in the O&D.

Comments: A4A supports reporting the Total Amount collected by the air carrier via the passenger ticket document, but opposes reporting amounts captured on other documents or in databases separate from where the passenger ticket value resides, as doing so could create a significant amount of extra work and provide misleading indicators of the amounts paid for transportation. Cirium supports including any mandatory fee collected by the carrier in the Total Amount to provide more accuracy for the purchase price paid by travelers. ATPCO believes that using the total amount from the reportable sales would be a more reliable option and would generate more consistent results than attempting to determine for each transaction whether it contains optional or ancillary charges that are not required to board the plane.

DOT Response: The Department has long interpreted the “Total Dollar Value of Ticket,” under 14 CFR part 241 as the sum of the passenger fare plus all taxes, fees, and charges for the entire ticketed itinerary. 6 The changes in this final rule to specify what carriers are required to report as the Total Amount of the ticket are consistent with this interpretation. Total Amount is defined in this final rule as the gross total of funds collected on a ticket by the Issuing Carrier for the transportation of a passenger, inclusive of taxes and fees imposed by non-carrier entities or air carriers, and exclusive of ancillary fees not required to board the plane charged by the air carrier. 7

Carriers are required under this final rule to include as part of the Total Amount charges required to board the aircraft (domestic and international) that are recognized as revenue at the time of purchase of the ticket up to the time of first lift of the ticket. 8 Where a fee or charge assessed at the time of purchase of the ticket is associated with a choice, such as seat assignment, where the consumer must pay the fee or charge regardless of the choice made, the fee or charge is considered part of the Total Amount. When a fee is assessed and there is a no cost option, that fee is considered an optional, or ancillary, fee that is not included in the Total Amount. The Total Amount does not include charges for optional services (services offered which the consumer may choose not to utilize and thus not incur the fee or charge) such as baggage fees, seat upgrade fees, or ticket change fees. DOT does not consider booking fees optional when a passenger purchases through an outlet where a booking fee is imposed. When there is no other reasonable option for the purchase it should be considered a fee required to be board the aircraft. However, call center fees where the passengers could have used a reasonable alternative at no extra charge should be considered optional. Fees for a service that consumers can select that provides something distinct from the air travel product are also optional, or ancillary, fees that are not included in the Total Amount.

The following is a non-exhaustive list of carrier-imposed fees and charges that must be reported as part of the Total Amount of the ticket: fuel surcharges, carrier usage charges, carrier interface fees, check-in fees, electronic usage charges, peak/holiday travel fees, transaction processing charges, and credit card surcharge fees. When a customer is assessed, a fee based on how the customer acquires a ticket to board the aircraft, a booking fee, the fee is included in the Total Amount. Being required to pay a fee or charge for electronic or phone booking where there is no fee for purchase at the counter is an example of a fee that would still need to be reported in the Total Amount. DOT has determined that the booking fee is included in the Total Amount because, as noted in the preceding paragraph, if a passenger purchases through an outlet where a booking fee is imposed, that fee is required to be paid to board the aircraft. In addition, purchase at the counter is conducted by a very small percentage of consumers and, as a result, this required fee is paid by the vast majority of consumers when purchasing air travel. Carriers must also include all taxes and fees imposed by the U.S. or a foreign government, such as, but not limited to, Federal excise taxes, flight segment taxes, U.S. passenger facility surcharges, September 11 security fees, U.S. or international departure and arrival charges, and immigration charges. Carriers must also include taxes and mandatory fees charged by other foreign authorities, such as passenger service charges and airport taxes.

Unaccompanied minor fees are charges for services to assist an unaccompanied minor, for example, in navigating security and getting to the correct gate to catch a flight and ensuring that the unaccompanied minor arrives at the correct destination. DOT does not include these fees as part of the Total Amount in this final rule. Unaccompanied minor fees are currently a very small percentage of airline revenue and are not included on the standard passenger ticket document for reporting purposes, and thus may require additional unreasonable effort for reporting on behalf of the airline. The Department does not include frequent flyer program redemption fees as part of Total Amount in this final rule because such fees also make up a relatively small portion of airline revenue and are not included on the standard passenger ticket document for reporting purposes, and thus may require additional unreasonable effort for reporting on behalf of the airline. 9 As a result, the term Total Amount should align with standard passenger ticket documents. For air carriers that do not follow such standards or have created new fees that may not be included in the standard passenger ticket document and yet are required to be paid to board the aircraft, these must also be included in Total Amount. DOT may also reexamine exclusion of unaccompanied minor and frequent flyer program redemption fees if it is determined that air carrier revenue derived from such fees increases significantly.

Final Rulemaking Text: DOT adopts its proposal to require reporting of “Total Amount.” See § 19-8.4(c)—Reporting of O&D data, 19-8.2—Definitions. DOT also adds a definition of Total Amount in the final rule for clarity. The term is defined as discussed in the NPRM, as follows: Total Amount means gross total of funds collected on a ticket by the Issuing Carrier for the transportation of a passenger, inclusive of taxes and fees imposed by non-carrier entities or air carriers, and exclusive of ancillary fees not required to board the plane charged by the air carrier. Factors considered in determining what should be included in the Total Amount are as follows:

(a) Total Amount includes charges required to board the aircraft (domestic and international) that are recognized as revenue at the time of purchase of the ticket and up to the time of first lift of the ticket.

(b) Where a charge assessed at the time of purchase of the ticket is associated with a choice, such as seat assignment, where the consumer must pay the fee or charge regardless of the choice made, the charge is considered part of the Total Amount.

(c) The Total Amount does not include charges for optional services (services offered which the consumer may choose not to utilize and thus not incur the fee or charge) such as baggage fees, seat upgrade fees, or ticket change fees. When a fee is assessed and there is a no cost option, that fee is considered an ancillary fee. When a fee is assessed for a service that provides something distinct from the air travel product then that fee is considered an ancillary fee.

(d) The term Total Amount should align with standard passenger ticket documents; however, for air carriers that do not follow such standards or have, or may have, created new fees that may not be included in the standard passenger ticket document and yet are required to be paid to board the aircraft, these must also be included in Total Amount.

Based on the criteria above, the following is a non-exhaustive list of carrier-imposed fees and charges that must be reported as part of the Total Amount of the ticket: fuel surcharges, carrier usage charges, carrier interface fees, check-in fees, electronic usage charges, peak/holiday travel fees, transaction processing charges, and credit card surcharge fees. When a customer is assessed a fee based on how the customer acquires a ticket to board the aircraft, a booking fee, the fee is included in the Total Amount. Being required to pay a fee or charge for electronic or phone booking where there is no fee for purchase at the counter must be reported in the Total Amount. Being charged a call center fee for booking by phone when the customer could have booked online at no charge is not an example of a booking fee that must be reported. Carriers must also include all taxes and fees imposed by the U.S. or a foreign government, such as, but not limited to, Federal excise taxes, flight segment taxes, U.S. passenger facility surcharges, September 11 security fees, U.S. or international departure and arrival charges, and immigration charges. Carriers must also include taxes and mandatory fees charged by other foreign authorities, such as passenger service charges and airport taxes. Carriers are not required to include unaccompanied minor fees and frequent flyer redemption program fees.

Note that in the NPRM, DOT stated that “if there is an outlet for which there is no ticket fee ( e.g., online purchases) and the only additional purchase fees are for tickets purchased via the airline's disfavored outlets, such as telephone or in-person sales, then the fee is not mandatory and would not need to be included in the Total Amount reported to the Department.” DOT's final rule is essentially consistent with the preamble discussion in the NPRM because airlines typically impose the booking fee when consumers purchase tickets using the airlines' favored outlets ( i.e., online purchases)—not disfavored ones as posited in the NPRM. Telephone and in-person sales make up a much smaller percentage of ticket purchases. In addition, on further consideration and as explained previously in this section, DOT considers booking fees as fees that the consumer must pay to board the aircraft.

Comments: A4A supports reporting the aggregate of fees and taxes imposed by external governmental entities and paid by the passenger as the Tax Amount. A4A opposes the inclusion of any air carrier-imposed fees in the Tax Amount because such inclusion would defeat the purpose of adding this data element. ACI-NA supports the proposed new items for total taxes. It also recommends that DOT consider requiring a full breakdown of government-imposed taxes and user fees. ATPCO supports a similar approach to representing Total Tax as it does with Total Amount, thereby ensuring consistent and reliable information.

DOT Response: DOT has determined that reporting the Tax Amount paid will provide the necessary information to achieve the goals of the data collection, to identify the total tax burden on a per ticket basis and will not require a full breakout of all taxes paid on a ticket. DOT has determined that requiring carriers to report a full breakdown of government-imposed taxes and user fees would add burden and complexity to the point that the collection would no longer be cost effective while adding little utility to the mission of the collection. DOT also recognizes that, in the case of Category Two tickets, it would be especially difficult, if not impossible, for the reporting carrier to report a breakout of these taxes and fees for all tickets rendering such a reporting requirement burdensome, incomplete, and inadequate. For this rulemaking, Tax Amount means all aggregated taxes and fees imposed by the U.S. government, a foreign government, or a government entity such as, but not limited to, Federal excise taxes, flight segment taxes, U.S. passenger facility surcharges, September 11 security fees, U.S. or international departure and arrival charges, and immigration charges. Taxes and mandatory fees charged by other foreign authorities, such as passenger service charges and airport taxes, are also considered part of Tax Amount.

Final Rulemaking Text: DOT adopts its proposal to require reporting of “Tax Amount.” See § 19-8.4(c)—Reporting of O&D data, 19-8.2—Definitions. DOT also adds a definition of Tax Amount in the final rule for clarity. The term is defined using the commonly understood meaning of “taxes” as government-imposed fees or other charges, and as discussed in the NPRM, as follows: Tax Amount means all aggregated taxes and fees imposed by the U.S. or a foreign government, such as, but not limited to, Federal excise taxes, flight segment taxes, U.S. passenger facility surcharges, September 11 security fees, U.S. or international departure and arrival charges, and immigration charges. Taxes and mandatory fees charged by other foreign authorities, such as passenger service charges and airport taxes, are also considered part of Tax Amount.

Comments: A4A supports the proposed approach to report all amounts in United States Dollars, rounded to two decimal places.

DOT Response: Consistent with other DOT data collection requirements, monetary amounts reported in the O&D shall be reported in United States Dollars (USD), rounded to two decimal places. Reporting Air Carriers should use their internal revenue accounting practices to determine proper currency conversion rates if their ticket data includes non-USD amounts.

Final Rulemaking Text: DOT adopts its proposal to require reporting of all amounts in USD, rounded to two decimal places. § 19-8.4(c)—Reporting of O&D data, 19-8.2—Definitions.

In the NPRM: The NPRM proposed the creation of a unique Record Identification Number (RIN) generated by the O&D Reporting Carrier for each Eligible Ticket submitted to the O&D. This would allow the Department to communicate precisely to the O&D Reporting Carrier any records that may have missing or incomplete data elements or are otherwise flagged for review. The Department sought comment on how to standardize the format of the RIN by incorporating helpful elements, such as the month and year of travel, plate code of the O&D Reporting Carrier, ticket number, or origin/destination, while at the same time preserving the number as a unique record identifier. No comments were received on the specific format.

Comments: A4A supports the creation of a Record Identification Number for each eligible ticket submitted for the reasons stated in the NPRM.

DOT Response: In this final rule, DOT requires air carriers to assign a Record Identification Number (RIN) to each ticket deemed eligible for submission to the O&D, facilitating easier record identification by the Reporting Carrier when correcting tickets reported with errors. Refer to the Instructions to Air Carriers for Collecting and Reporting Passenger Origin-Destination Survey Data. 10

Final Rulemaking Text: DOT adopts its proposal to require reporting of a “Record Identification Number” (RIN). DOT also provides a definition of RIN for clarity, as follows: Record Identification Number (RIN) means an air carrier assigned number that uniquely identifies each ticket within each reporting period. See § 19-8.4(c)—Reporting of O&D data, 19-8.2—Definitions.

Comments: A4A strongly supports removal of the fare basis code for the reasons stated in the NPRM, and notes that ceasing to report fare basis codes will substantially decrease the burden on the reporting air carriers. APAC is in favor of minimizing the burden on O&D reporting carriers while still collecting fare class, or at the very least, cabin class in lieu of the fare basis code. ADI is opposed to the removal of the fare class and cabin class from the collected data. ADI further states that continuing to include these two components in the submitted data should not create any undue burden and that removal of this data would reduce the robustness of the data. Cirium recommends including fare class or the directly assigned booking code values to facilitate “meaningful” fare analysis. A4A, however, expresses concerns with the availability, ease of reporting, or reliability/consistency of using directly assigned booking code values. A4A notes that airlines often deviate from standard booking code values. A4A also notes that while booking code could conceivably be used as an indicator of passenger segmentation because cabin use has some correlation with passenger segmentation, A4A considers it to be an imperfect indicator as there is no uniformity across air carriers in the definition of aircraft cabin configurations or products included within cabin classes. Lastly, A4A states that it is more common for a passenger to mix cabin classes on multi-leg itineraries, which creates difficulty in determining whether the passenger was truly intending to travel as a business or leisure customer, or simply purchased available cabin class inventory to secure intended dates of travel. A4A therefore argues that its member carriers do not support using booking codes for passenger segmentation. A4A proposed the use of Advanced Purchase Window (APW) as a less burdensome and more accurate indicator of the leisure/business travel split. A4A cites that this indicator is applicable to the entire itinerary regardless of how many segments are flown, is a far less burdensome and a more accurate indicator of travel as the indicator is not tied to the row or seat a passenger occupies, which airline is flown, or whether the purchase is one-way or round-trip.

DOT Response: DOT has collected fare basis code data in the O&D under 19-7, but since inception of this data element requirement, airline revenue accounting practices have evolved with increasing complexity. This data element has been primarily used for the purpose of segmenting market demand into similar categories of service or product categories for more discrete pricing analysis of air carrier product market segments. This has required the carriers and then the users of the data to “map” individual carriers' fare basis codes in an attempt to standardize codes across carriers and across time. The evolution of air fare products across air carrier business models and time, with the gradual replacement of many First Class products by lie-flat Business Class products—some of which feature suite characteristics, the introduction of Premium Economy Class, and the bifurcation of traditional Economy Class into separate discrete product types makes any standardization system based on such characteristic burdensome and expensive to implement and always subject to inaccuracy given the limited set of information available to DOT and to individual data users. A4A commented that the use of advance purchase window would provide a better solution for ticket segmentation. A4A contends that the best metric for passenger segmentation is the advance purchase window, which indicates how far in advance a ticket was purchased from date of travel. A4A further states that airline network planners and revenue management analysts use advance purchase metrics to segment traffic, including estimating the share of premium travelers. Given that Advance Purchase metrics are an integrated part of the same sales and revenue accounting systems that serve as a source for O&D information and for the other reasons provided in comments, DOT will no longer require fare basis code to be reported in the O&D. Instead, DOT will add the data element Purchase Window Group to the list of elements collected in this Rulemaking, with each ticket demarcated by the following categories:

(1) “21AP”: Less than or equal to 21 days prior to departure;

(2) “2290”: 22 to 90 days prior to departure; and

(3) “91UP”: More than 90 days prior to departure.

A4A maintains the above suggested buckets strike an appropriate balance between shielding more granular and therefore competitively sensitive information and enabling O&D users to evaluate product segment attributes such as the business versus leisure split of the market. A4A further states that the 21 days or less purchase bucket is a commonly accepted industry approach to determining the leisure and business demarcation. Airlines must determine the appropriate category by subtracting the date of ticket purchase from the date of scheduled travel in the itinerary.

Final Rulemaking Text: DOT adopts its proposal to no longer require reporting of fare basis code. Instead, for the reasons explained in the preceding discussion, DOT requires reporting of “Purchase Window Group.” In the NPRM, the Department sought alternatives to fare basis code, stating that DOT could instead collect “fare class or a replacement data element instead.” 86 FR 5052, 5058 (Jan. 19, 2021). A4A responded to the NPRM recommending that DOT instead require reporting of Purchase Window Group. A4A provided in its comments its reasoning for recommending reporting of Purchase Window Group, which DOT considered in adopting the requirement in this final rule. DOT also adds a definition of Purchase Window Group for clarity, as follows. Purchase Window Group means one of three groups indicating the advance purchase window of the ticket. ”21AP” is less than or equal to 21 days prior to departure, “2290” is 22 to 90 days prior to departure, and “91UP” is more than 90 days prior to departure. See § 19-8.4(c)—Reporting of O&D data, 19-8.2—Definitions.

Comments: A4A opposes the inclusion of ticketed or flown cabin information primarily because it would add complexity and costs to the reporting process without providing consistent, meaningful, comparable data. A4A also states that there is no uniformity across airlines on airline cabins, products within each cabin, or cabin configurations. APAC commented that it is in favor of minimizing the burden on O&D reporting carriers while still collecting fare class, or at the very least, cabin class in replacement of the fare basis code. ACI-NA does not support eliminating the cabin class the passenger uses on each of the flights.

DOT Response: In light of the comments received on cabin information, similar to Fare Basis Code, DOT has determined requiring carriers to report cabin class would add burden, complexity, and not improve data quality. Although the existing Fare Basis Code includes elements related to First, Business, and Economy class service, continued reporting of this type of information would no longer be cost effective in the new system given all the other changes being introduced. DOT also recognizes that, in the case of Category Two tickets, it would be especially difficult to include cabin class information to the point where such reporting would not be useful due to lack of accurate information available to the reporting carrier. DOT concludes that the key analytical value of such information is to segment the product market and the purchase window group enables an analyst to do so to a certain extent. DOT further recognizes that other data sources such as schedule data can be used to determine the types of onboard products available in a market, and when combined with O&D analysis utilizing advance purchase window, will enable users to obtain a picture of the pricing situation by market segment. DOT will not require the reporting of cabin class as a data element in the O&D.

(7) Whether optional ticket purchase fees collected from most tickets should be included in the total amount of a ticket.

In the NPRM: Airlines' revenue accounting of tickets purchased has evolved significantly since the inception of the O&D. How air carriers sell their services has changed, including a larger adoption of fees for various services related to air travel, including fees for booking a ticket through telephonic means and pre-selection of a seat at the time of ticket purchase, among many other fees. DOT asked for comments related to the inclusion of those fees with base fare and tax amount, as part of the total amount of a ticket.

Comments: These comments are described in the “Total Amount” discussion.

DOT Response: These comments are addressed in the “Total Amount” discussion.

(8) The appropriate amount of time to withhold O&D data from dissemination.

In the NPRM: In the NPRM, we state that reducing the amount of time to withhold O&D data from dissemination from 90 days to 60 days would balance the value of providing timely information to stakeholders while still protecting the business confidentiality of the reporting air carriers.

Comments: A4A supports reducing DOT's minimum data withholding period for O&D and T100/T100(f) from 90 days to 60 days. RAA supports the position of A4A. ACI-NA supports shortening of Schedule T100(f) from six months to three months and recommends that DOT develop internal administrative procedures to ensure the data is available to stakeholders with minimal delay and potentially coordinate the release time with the Schedule T100.

DOT Response: O&D is currently released approximately 80 days after the end of the reporting period. The 80 days is made up of a 45-day period for reporting carriers to submit and approximately a 35-day period for DOT to load, validate, quality test, and resolve any identified quality issues with the reporting carrier(s). The actual amount of time required to complete the data processing varies based on the specifics of each processing cycle. In any given quarter, one or more carriers may have complex data quality problems that could require more than 35 days to correct. The majority of the 35-day processing cycle is made up of interactions with reporting carriers to correct data quality issues. At times, multiple iterations of communications between DOT and the reporting carrier(s) are required to resolve the issue. The reporting requirement that is most often attributed to data quality problems is the first reporting carrier rule. The current rule requires the carrier that did not issue the ticket to bring together ticket information from all carriers that participate in an itinerary. This new rule will have the carrier that issues the ticket, which has all the necessary information about the ticket, be the carrier responsible for submitting the ticket information. This will eliminate a major source of error, reduce the amount of time reporting carriers spend searching for missing information, and reduce the number of interactions with DOT. DOT will build in greater automation to the data processing system that will be developed to accommodate the data changes required by this rule which will contribute to faster production. There is uncertainty about the total production impact of the new rule, however, given that the reporting will go from quarterly to monthly and there will be an expansion of reporting carriers. DOT will continue to ensure that only complete data of the highest quality is published as soon as possible. The target publication date will initially be 75 days from the end of the data reporting period. As the reporting carriers and DOT prove the processing cycle is robust, the publication window may be reduced to the greatest extent possible while still meeting data quality and completeness goals. This reduction and any future reductions will be accomplished by: (1) improving the submission rules to reduce quality errors, (2) automation improvement in the processing cycle, and (3) coordination and cooperating between DOT and reporting carriers to resolve any data quality issues as expeditiously as possible. This approach will strike a balance between providing timely data while protecting the quality of the data provided. DOT reserves the right to withhold incomplete data until it can be corrected but recognizes the need to accelerate production to the maximum extent possible.

(9) and (10) Adding the descriptor “citizens and non-citizens” to the other persons offered an opportunity to obtain domestic carrier-submitted itineraries with foreign origin and destinations points in the O&D. Replacing the phrase “specifically identified need” with a defined list of permissible, specifically identified needs that would be codified in the regulation, and if so, what that defined list should include.

In the NPRM: Under 14 CFR part 241, Sec. 19-7(d), international itinerary data in the O&D is not generally disclosed because of the potential damaging competitive impact on U.S. carriers and the adverse effect upon the public interest that would result from unilateral disclosure of data related to foreign markets. The disclosure policy identifies exceptions for government interests and for air carriers contributing data to the O&D. DOT proposed adding the descriptor “citizens and non-citizens” to the other persons offered an opportunity to obtain the data based on specifically identified needs that are consistent with U.S. interests. We also sought comment on whether to replace the phrase “specifically identified need” with a defined list of permissible, specifically identified needs that would be codified in the regulation, and, if so, what that defined list should include.

Comments: A4A states that it is critical that the Department take all precautions in the final rule to ensure that air carriers registered outside the United States, foreign governments, consultants, or others when working on behalf of said parties, not be granted access to data on international markets contained in the O&D. A4A further stated, however, that U.S.-based business units of foreign-based aircraft manufacturers ( e.g., Airbus Americas, Embraer) should be granted access to such data, subject to the same obligations to protect against unauthorized disclosure, for purposes of marketing their services to, or performing analyses request by, U.S.-based air carriers. Airbus strongly supports the Department's proposed changes to the dissemination of this data, particularly the addition of “citizens and non-citizens” to the other persons offered an opportunity to obtain the data based on specifically identified needs and consistency with U.S. interests. It believes that by expanding access to the international O&D data, the Department will allow Airbus and other U.S.-based civil aircraft manufacturers with a significant presence in the U.S. market the opportunity to better tailor product offerings to better serve U.S. airlines and the U.S. aviation market.

DOT Response: DOT did not receive comments expressing concern with the inclusion of the term “non-citizens” in the group of persons eligible to have access to international itineraries as long as that access is for a purpose that supports U.S. Government (USG) efforts or those of carriers required to report the data. This will enable the USG or carriers required to report the data greater access to global analytical capabilities from third parties that may be non-citizens. DOT will add the term “non-citizens” while maintaining the same policy framework for the release and use of international O&D data enabling non-citizen analysis of the O&D that meets the criteria outlined above. There were no comments directly addressing the DOT question related to a defined list of permissible, specifically identified needs that would be codified in the regulation.

Final Rulemaking Text: DOT adopts its proposal to add the descriptor “citizens and non-citizens” to the other persons offered an opportunity to obtain domestic carrier-submitted itineraries with foreign origin and destinations points in the O&D. DOT does not replace the phrase “specifically identified need” with a defined list of permissible, specifically identified needs at this time. See § 19-8.6—Dissemination.

(11) Shortening the time that Schedule T100(f) data is withheld from 6 months to 3 months.

In the NPRM: In the NPRM, we solicited comment on whether shortening the time that DOT withholds public release of the T100(f) from six months to three months would provide increased utility of the data.

Comments: RAA believes that timely traffic and fare information is critical to both industry and government analysis considering the importance of aviation to the U.S. and world economy. A4A asks that DOT reduce the withholding periods for both T100 and T100(f) to 60 days to align with the proposed withholding period for O&D data. ACI-NA asks that DOT reduce the withholding periods for both T100 and T100(f) to 60 days to align with the proposed withholding period for O&D data.

DOT Response: Aligning the release of various aviation datasets is advantageous to the users of the data, so long as it: (1) does not produce any concerns of infringing on business confidentiality by shortening the release of such data, and (2) does not compromise data quality or completeness. Given the comments we have received, DOT will shorten the period that T100(f) data is withheld from six months to what will be approximately 70 days depending on the month. Currently, T100/T100(f) data are due 30 days after the end of a reporting period. In the case of Schedule T100/T100(f), DOT takes approximately 45 days to load, validate, quality test, and resolve any identified quality issues with the over 200 operating carrier(s) that report each month. This change will align the processing and release of Schedule T100(f) with that of Schedule T100 while also reducing the DOT processing cycle for T100/T100(f) to approximately 40 days. The result will be that T100/T100(f) will be published approximately 70 days after the end of a reporting period. This will include T100/T100(f) that contains domestic only points and one domestic point and one international point. O&D processing is dependent on Schedule T100 data for validation and rather than hold T100/ T100(f) while awaiting O&D validation, DOT will release T100/T100(f) data as soon as it is validated and complete. DOT will publish T100/T100(f) data as soon as practicable while maintaining quality standards. DOT has determined that this change will not lead to any business confidentiality concerns because technological advances in market intelligence data collection give air carriers more insight into foreign and domestic routes much sooner than in decades past. This reduction in the publication cycle is in line with current market intelligence and analytics products available today, thereby ameliorating previous concerns of business confidentiality.

(11) A reasonable compliance date to begin no earlier than one year from the publication of the final rule.

In the NPRM: In the NPRM, we proposed that the compliance date for the improvements to the O&D would be no earlier than one year from the publication of any final rule, giving reporting air carriers sufficient time to implement information technology solutions to transmit data in conformity with the final rulemaking.

Comments: A4A agrees with DOT that air carriers and others should be afforded at least 12 months to modify their systems and procedures to comply with a final rule. A4A further requests that the date for implementation and compliance coincide with the beginning of a reporting quarter under Section 19-7 and not be earlier than January 2023 because of the lingering resource constraints on air carriers stemming from the COVID-19 pandemic. ATPCO believes a solution can be in place within one year to start parallel testing of O&D data under Sec. 19-7 and Sec. 19-8.

DOT Response: DOT affirms that the compliance date for the changes to the O&D will be no earlier than one year from the publication from the final rule. DOT has provided for a compliance date in the final rule of July 1, 2025. If air carriers are ready to report their data using Section 19-8 prior to that date, and DOT has determined that air carrier reporting pursuant to 19-8 is sufficient for such data to become the O&D system of record, DOT may consider authorizing discontinuance of reporting pursuant to Section 19-7, but not earlier than January 1, 2025, to ensure that air carriers have time to implement the new Section 19-8. This also ensures the 19-8 data compliance occurs at the beginning of a new quarter and the 19-7 quarterly data will be complete for the last full quarter it is collected. For air transportation taking place on or after April 1, 2024, and each reporting month after, reporting carriers may submit O&D data to the Bureau of Transportation Statistics, Office of Airline Information (BTS/OAI) that conforms to Sec. 19-8 as test data.

Final Rulemaking Text: DOT adopts its proposal to establish a compliance date no earlier than one year from the date of publication of the final rule. Specifically, air carriers must report O&D data pursuant to the new Sec. 19-8 for all air travel occurring on or after July 1, 2025. This means that the first data collection using Sec. 19-8 as the statistics of record will be due to DOT by September 15th, 2025. See § 19-8.3(c)—Applicability.

(12) Reporting data under Sec. 19-7 until such time that Sec. 19-8 replaces Sec. 19-7 as the statistics of record.

In the NPRM: In the NPRM, DOT stated that air carriers would continue to report O&D data under Sec. 19-7 until DOT determines testing and validation of data submitted under Sec. 19-8 is complete and suitable to replace data collected under Sec. 19-7 as the statistics of record. The Department also stated that it envisioned the submission of 12 months of data under Sec. 19-8 for testing and validation as sufficient to resolve any problems that may arise in the submission and processing of data.

Comments: A4A states that its members are concerned about the manpower required to support dual reporting for an extended length of time, and therefore asks the Department to shorten the proposed dual-reporting period from 12 months to six months. A4A further noted, “Should the Department identify issues with a particular carrier's compliance, it should work with that specific carrier to extend the dual-reporting period, but not require that all carriers extend the period to 12 months.”

DOT Response: DOT recognizes that dual reporting of O&D data will require additional resources but must balance this with the assurance that the new datasets created under Sec. 19-8 are robust, accurate, and suitable to replace data collected under Sec. 19-7 as the statistics of record. DOT will work with reporting air carriers to minimize the number of months whereby carriers must submit data under Sec. 19-7 and Sec. 19-8. DOT highly recommends reporting carriers develop the necessary systems and processes to enable reporting of O&D test data as prescribed by this section starting with April 2024 data, 17 months from the date of this rule's publication. DOT will accept test data as prescribed by section 19-8 on May 1st, 2024, one day after the end of the first reporting period for test data. DOT recommends reporting carriers submit the first period of test data within 45 days of the end of the first test period, which will mirror the submission schedule after the compliance date. Each subsequent monthly period after May 2024, DOT will continue to accept test data so that reporting carriers and DOT can validate the reporting process and reported data. During this time, reporting carriers subject to part 19-7 will continue to report 19-7 as the system of record for O&D data. To the extent possible, DOT will terminate overlap reporting of 19-7 system of record data and 19-8 test data after two cycles of 19-7 data are compared to the corresponding overlapping six cycles of 19-8 test data should there be no quality problems. This corresponds to six months of overlap data being reported as requested by A4A. Should DOT determine overlap reporting can be terminated after the six months of overlap reporting are compared and validated, DOT may terminate the dual reporting requirement as of the earliest possible date that corresponds with the beginning of a quarterly submission period which would be January 1st, 2025. DOT will make every effort to assist each carrier with compliance so the dual-reporting period can be shortened to the six months of overlap. To validate the 19-8 data, DOT will compare it to 19-7 O&D data, T100 data, and schedule data for the same periods. The final decision setting the compliance date to six months of dual reporting will depend on the scope of any deficient carrier(s) operations and the degree to which the problem carrier(s) may codeshare with other carriers which will impact DOT's ability to obtain the full sample of data necessary for comparison.

(13) The utility to users and additional burden to O&D reporting carriers of reporting individual tax and fee amounts instead of reporting the aggregate amount of taxes and fees.

In the NPRM: In the NPRM, we asked whether there would be utility to users and additional burden to O&D reporting carriers of reporting individual tax and fee amounts instead of reporting the aggregate amount of taxes and fees.

Responses: A4A strongly opposes reporting taxes and non-air carrier fees on a disaggregated (itemized) basis. ATPCO states that an attempt to require the submission of more detailed tax information will introduce inaccuracy into the survey data because the information is not provided in the sales data, and that a total tax value similar to the total amount value would provide a more consistent and reliable figure base on their experience with the reported sales data.

DOT Response: DOT has determined that any additional utility in requiring reporting air carriers to submit disaggregated, itemized taxes and non-air carrier fees is outweighed by the complexity and burden that such reporting would entail. Refer to Issue 6 Tax Amount for further related discussion. DOT will therefore require reporting air carriers under Sec. 19-8 to submit taxes and non-air carrier fees only on an aggregated basis.

Final Rulemaking Text: See Issue 6 Tax Amount. § 19-8.4(c)—Reporting of O&D Data, 19-8.2—Definitions.

(14) Comments related to the annual burden estimate for reporting carriers to collect and submit O&D data.

In the NPRM: DOT solicited comments to: (1) evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility for stakeholders; (2) evaluate the accuracy of the agency's estimate of the burden; (3) enhance the quality, utility, and clarity of the information collected; and, (4) minimize the burden of collecting information on those who must report, including by using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Responses: ACI-NA comments that the current rules for the O&D were established in the 1960s and technology and data storage were significant limiting factors. Airlines now have different business models, reporting, and accounting practices due to technological advancements, including sophisticated revenue management systems. ATPCO states it does not have adequate information to comment specifically on the cost savings published in the NPRM, but it does believe that a centralized solution provided by an industry organization does offer the opportunity for meaningful cost savings over the current method for collecting the survey.

DOT Response: In establishing this final rule, the Secretary of Transportation must consider as being in the public interest and consistent with public convenience and necessity “placing maximum reliance on competitive market forces and on actual and potential competition.”  11 Accurate and timely information is a necessary predicate to evaluating markets. DOT concludes, based on the RIA, and as discussed in the NPRM and this final rule, that the O&D Survey remains justified, that there are issues of objectivity, integrity, and utility with the current collection, and that the changes necessary to correct the issues as finalized in this rule will result in a net reduction in burden to the public when compared to taking no action. The changes in the final rule simplify the reporting process by aligning reporting rules with current carrier revenue reporting systems which will drastically minimize the potential for errors compared to current reporting, clarify definitions, and make available a more diverse set of data elements relevant to the analysis of contemporary aviation markets. We therefore affirm that the changes to the O&D under Sec. 19-8 are necessary for the proper execution of the agency's aviation policy making functions and will enhance the quality, utility, and clarity of the information collected, and that we have attempted to minimize the burden of collecting information to the maximum extent possible on those who are required to submit that information to the O&D.

(15) Implementation and establishing a permanent working group of O&D reporting airlines.

Responses: A4A and RAA request that DOT establish a permanent working group of O&D reporting air carriers to work with the Department on an ongoing basis to identify issues that arise and review and recommend appropriate changes to BTS/OAI Directives and/or Instructions. RAA also states the group should include representatives from data reporters and data users and consider including at least one representative from RAA or RAA members. ATPCO encourages the establishment of an industry meeting or working group involving the airlines, industry organizations and the Department to ensure consistent and accurate data submission guidelines.

DOT Response: DOT recognizes the importance of involving stakeholders in the development and implementation of data collection efforts and has worked diligently to facilitate discussion and encourage collaboration in data modernization efforts. DOT will continue to engage stakeholders and other interested parties to implement this rule as efficiently and effectively as possible and to respond to the issue and concerns of both the reporting carriers and data users. DOT encourages air carriers and any other interested parties with questions concerning implementation of the final rule to contact DOT, so that DOT can consider those implementation questions and determine the most appropriate means to communicate a response to all affected carriers and the public. DOT will ensure compliance with the Federal Advisory Committee Act and other relevant requirements in its engagement with the public.

In the NPRM regulatory text, DOT included an amendatory instruction to remove Sec. 19-7. DOT determined that such an instruction is inappropriate given the dual reporting envisioned by DOT in Section VI of the NPRM and discussed in this final rule. DOT therefore retains the regulatory text for Sec. 19-7 to assist air carriers in conducting the overlap reporting necessary before reporters are required to report only pursuant to Sec. 19-8. In addition, DOT has retained in the regulatory text sections on Waiver Requests, Quantity and Quality Controls, Editing Data, and Control of Sample Section and Data Recording. These appear unchanged from the Appendix A to Sec. 19-7 and have been included for clarity of the regulatory requirements of Sec. 19-8. While DOT did not include these sections in the regulatory text in the NPRM, DOT did not intend to change these regulatory requirements and did not discuss any proposed changes to these requirements in the NPRM. DOT also retained certain definitions and terms with adjustments to align them in a more consistent manner with current industry understanding and recordkeeping. These amendments are intended to update the outdated terms in the 19-7 regulations with minimal, if any, change in reporting/meaning intended. These terms include: Connecting Point, Destination, Coupon Stage, Flight Coupon, International Ticket, Operating Carrier, Origin, Reporting Carrier, Routing, and Scheduled Service. DOT included new terms that are relevant to only the new regulations to further clarify for carriers the proper interpretation of the regulations for accurate reporting. These terms include: Commuter Air Carrier, Dwell Time, Eligible Ticket, First Reporting Carrier Rule, Flown Lift Usage, Issuing Carrier, Marketing Carrier, Purchase Window Group, Record Identification Number, Reporting Event, Reporting Carrier List, Reporting Month, Reportable Ticket, Reporting Year, Revenue Passenger, Scheduled Flight Month, Scheduled Flight Year, Tax Amount, Ticket, Total Amount, USD, Via Airport (Point(s)). As discussed in the section of the preamble explaining DOT's responses to comments on the NPRM, DOT defined these terms using their commonly understood meanings and as described in the NPRM, with additional clarification as necessary and as suggested by commenters.

This rulemaking is not considered a significant regulatory action under section 3(f) of E.O. 12866, 12 as supplemented by E.O. 13563. 13 The impact of the rule on the economy is less than $100 million; the rule does not create conflicts with actions taken by other agencies; alter budgetary impacts of entitlements, grants, fees, or loans; or raise any novel legal or policy issues.

This regulatory action modifies an existing regulation and is expected to result in cost savings to producers and users of the data as well as to the Federal government. This action is also expected to result in benefits to users of the data, including the O&D Reporting Carriers.

The Final Regulatory Impact Analysis estimates the total discounted savings that could be monetized over a 10-year period. Savings could be robustly estimated only for the reporting requirements and may not include some other potential costs which the Department expects to have minimal impact. The cost savings of the reporting requirements are estimated to total $10,367,702 over ten years, which will result in an annualized system cost of $1,476,128, when discounted using a seven percent rate. Given these estimates, the rule is not economically significant. The net costs of the final rule were determined by comparing the costs of the existing system to the projected costs with the proposed modification. The Department's analysis identified three primary categories of potential cost reductions:

• Cost reductions to data producers: the reduction in the costs of producing information for government reporting, due to technological simplification of data processing and submission.

• Cost reductions to the government: the reduction in costs to edit, manipulate, and validate the O&D data for release.

• Cost reductions to the public/users of the data: the reduction in time that users must spend applying specialized analytical skills to manipulate and adjust the data to account for current deficiencies in the O&D Survey.

Cost reductions to data producers include costs for accounting and auditing clerks, computer systems analysts, and computer programming analysts that are part of the ongoing production of data by the air carriers. Labor rates were taken based on Bureau of Labor Statistics Standard Occupational Classification (SOC) and hours were estimated based on industry input for current operations. Average cost per airline based on the labor rates and estimated hours was then calculated, and this was multiplied by the expected number of carriers that will report over a 10-year timeframe. The “as is” costs were then compared to the “to be” costs that would be achieved under the rule. The “to be” costs include the transition costs from the current system to the new system as well as an ongoing cost estimate for the processing of the data by a third-party fee-for-service provider. ATPCO, the leading distributor of airline fares and airline fare information, notified DOT that it can create software to assemble the O&D report for any air carrier that exchanges ticket information using their services. ATPCO is a non-profit industry consortium that provides tariff and other ticket-related services to air carriers and foreign air carriers “at-cost.” ATPCO's shared software would relieve air carriers from the cost of maintaining separate systems, each of which carries attendant secondary expenses for training and technical maintenance. This option would not only simplify the information technology operations, but also amortize the cost of creating and maintaining the software. Therefore, upfront costs resulting from this proposed action are expected to include the expenses related to developing, installing, and maintaining an automated reporting system. These upfront costs have been accounted for as ongoing payments to a third-party provider.

Cost reductions to the government include systems investment costs and ongoing production costs. Labor rates were taken based on Bureau of Labor Statistics Standard Occupational Classification (SOC) and hours were based on estimates provided by the BTS. The “as is” comparison assumed the use of existing infrastructure while the “to be” assumed a two-year development and implementation window, as well as ongoing production costs.

Cost reductions to the public/users were estimated for the “as is” total hours users of the data spend on computer systems. The total “as is” hours include analysts that further prepare the data and those that perform final data quality procedures that must be done to ensure clean data for final analysis outputs. The comparison “to be” calculation includes an estimated investment cost for creating processes for the new data prior to its release to public/users. All costs were estimated over 10 years and discounted at a 7 percent rate. This analysis finds that the final rule would result in annualized cost savings of approximately $1.5 million at a 7 percent discount rate.

To comply with the revised O&D, certain investment is likely necessary by data producers. This investment will be required to accommodate the increase in: new reporting carriers, the reporting frequency, the percentage of tickets reported, and the new data elements. In addition, these changes will result in additional burden on the government for more frequent processing and faster turnaround time for publication. The final rule streamlines and simplifies the design of the O&D, allowing for a much greater degree of process automation. The rule also allows for third-party providers to create fee-for-service software that would produce the Survey reporting records for all air carriers as an alternative to the carrier doing the processing.

Users of the data include air carriers and industry-related entities, such as airports, manufacturers, researchers, and investors, who often cite the O&D as one of the most critical datasets used to formulate short- and long-term business plans and forecast industry trends. Other USG agencies such as the Federal Aviation Administration (FAA), Bureau of Economic Analysis (BEA), Department of Justice (DOJ), Transportation Security Administration (TSA) and the Government Accounting Office (GAO) as well as educational institutions use the data for research purposes as well. Improving the quality of the O&D data yields several other unquantified benefits to users of the data, including:

• Reporting the Dwell Time between flights reduces the difficulties and potential errors associated with determining when a passenger has reached a destination (“Trip Break”) and when the passenger is simply waiting for a connecting flight to the intended destination.

• Reporting all the cities in the itinerary better aligns O&D data with the T100, removing much of the uncertainty in market validation analysis. This would allow the T100 to facilitate validation of O&D data submissions.

• Reporting a larger sample size to capture small and rural markets with the statistically significant equivalence of larger markets reduces the need to make much less accurate manual statistical adjustments as well as increase the accuracy of data available for the analysis of small markets.

• Differentiating the amount of tax collected from the amount of total fare collected removes uncertainty in determining the actual passenger revenue retained by the airlines.

• Reporting the month and year of travel enables the determination of market trends that are not discernable inside the quarterly data reports and allows direct cross-validation to other datasets such as the T100.

• Having the issuing carrier report the itinerary will enable better identification of the operating carrier of each segment. The comparison of O&D to T100 by market will be easier for both the DOT and the user.

As is described in the discussion of the cost-benefit analysis conducted for the proposed rule, this action is expected to result in annualized cost savings (to producers and users of the data and the Federal Government) of approximately $1.5 million per year, while also yielding additional unquantified benefits to users of the data through improved data quality and utility.

The Unfunded Mandates Reform Act of 1995  14 requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in expenditures by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million (adjusted annually for inflation) in any one year. As described elsewhere in the preamble, this final rule to update and improve the Department's aviation data collections would have no such effect on State, local, and tribal governments or on the private sector. Therefore, the Department has determined that no assessment is required pursuant to UMRA.

The Regulatory Flexibility Act  15 requires an agency to assess the impacts of proposed and final rules on small entities unless the agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities. The reclassification of reporting carrier from large, certificated carriers conducting scheduled passenger service operations to all certificated air carriers and commuter air carriers holding out scheduled passenger service will result in a net increase in total reporting carriers. The number of small entities that must report is therefore expected to increase. For purposes of rules promulgated by the Office of the Secretary of Transportation regarding aviation economic and consumer matters, an airline is a small entity for purposes of the Regulatory Flexibility Act if it provides air transportation only with aircraft having 60 or fewer seats and no more than 18,000 pounds payload capacity. The Department has evaluated the effects of this action on small entities and anticipates that the action will not have a significant economic impact on small entities. DOT finds that if all carriers were to use the proposed ATPCO service to submit data, the cost is likely to range from 0.0% to 1.70% of annual revenue, with a median cost of 0.03% of annual revenue. Only two identified reporting carriers were expected to spend above 1.0% of annual revenue to comply with this rulemaking. Pricing was estimated by taking the number of passengers for each small air carrier and multiplying that by the estimated per record charge for processing O&D data and assumed one O&D itinerary record per passenger.

For any small entities required to begin reporting the data collected under this rule, DOT also notes that this data is routinely collected in a normal course of business, as a necessity to common industry accounting practices. DOT also notes that air carriers, including those that qualify as small businesses, can use third-party vendors to assist in the required reporting, to the extent that it is cost effective for them to do so. DOT will also assist all carriers, including those that qualify as small businesses, in successful implementation of the new 19-8, to minimize the period of overlap reporting under Sec. 19-7 and 19-8. The Department did not receive comments on the certification or potential economic impacts of the rule in response to the NPRM. The Department hereby certifies that this action would not have a significant economic impact on a substantial number of small entities.

D. E.O. 13132  16 requires agencies to ensure meaningful and timely input by State and local officials in the development of regulatory policies that may 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. The Department has analyzed this action in accordance with the principles and criteria contained in E.O. 13132. This rule does not include any provision that substantially directly affects the States, the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of government. It imposes no direct compliance costs on State and local governments, nor does it preempt State law. States are already preempted from regulating in this area by the Airline Deregulation Act. 17 Therefore, the consultation and funding requirements of E.O. 13132 do not apply.

DOT has analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). The changes to the O&D will not have tribal implications, impose substantial direct compliance costs on Indian tribal governments, or preempt tribal law. Therefore, this final rulemaking is exempt from the consultation requirements of E.O. 13175, “Consultation and Coordination with Indian Tribal Governments.”  18

The Paperwork Reduction Act of 1995 (PRA)  19 requires that the Department consider the impact of paperwork and other information collection burdens imposed on the public and obtain approval from the Office of Management and Budget (OMB) for each collection of information it conducts or sponsors.

This action contains the following proposed amendments to the existing information collection requirements previously approved under OMB Control Number 2139-0013. As required by the PRA, DOT submitted these proposed information collection amendments to OMB for its review. OMB approved the revisions under OMB control number 2139-0014.

Summary: Origin-Destination Survey of Airline Passenger Traffic (O&D), which collects information on the origin and destination of passengers including, at a minimum, information on: (1) the origin and destination of passengers in interstate air transportation, and (2) the number of passengers traveling by air between any two points in interstate air transportation. Modifications to the existing requirements include making the air carrier that issues the ticket primarily the carrier responsible for submitting the ticket, reporting each ticket as a single record, expanding the O&D Reporting Carrier threshold, changing the period of reporting to monthly, increasing the sample size to 40 percent, reducing the lag time for release of T100(f), adding Dwell Time, adding a Via Airport data element, adding a Total Tax element, adding Travel Year and Travel Month as recorded elements, adding a Reporting Record Identifier, adding a Purchase Window Group element, and removing the requirement to record the Fare Basis Code.

Use: The Department is obligated by statute to collect and disseminate information on the origin and destination of airline passengers including, at a minimum, information on: (1) the origin and destination of passengers in interstate air transportation, and (2) the number of passengers traveling by air between any two points in interstate air transportation. There are many private and public stakeholders that depend on this data to make decisions on aviation business and policy. For example, this data is used by the industry to plan air services, develop commercial aviation infrastructure, measure the economic impact of passenger flows, and create business plans for start-up airlines. The O&D is also a primary source of information used to quantify and evaluate the effectiveness of Federal aviation policy and programs, as well as develop and implement new policies and infrastructure initiatives.

Respondents (including number of): All certificated air carriers and commuter air carriers holding out scheduled passenger service. The Department currently estimates approximately 27 air carriers will qualify to submit data to the O&D as envisioned by this rulemaking.

Frequency: Monthly.

Annual Burden Estimate: The Department estimated an investment cost for each of the 27 carriers that will report at $9,598 per carrier or $259,146 annually. Most of the cost of this data collection is embedded in the normal administrative costs normally incurred by the carriers, including personnel expenses and computer time. The following categories of hourly costs were taken from the Bureau of Labor Statistics (BLS) site: “Accounting and Auditing Clerks,” wage scale for 43-031 (bookkeeping personnel), $20.65; median pay per hour for “Computer Systems Analyst” of $43.71, according to 15-1211 Computer Systems Analyst; median pay per hour for “Computer Programming Analyst”, $40.52, according to 15-1131 Computer Programmers. The Department further estimated Accounting and Auditing Clarks time at 30 annual hours, Computer System Analysts at 20 annual hours, and Computer Programmer Analysts at 200 annual hours for a total investment burden of $9,598 per year per carrier. The Department further estimated the reporting burden per carrier at 30 hours per response at 12 times per year for a total of 324 annual responses which for the 27 reporting carriers is a total annual burden of 9,720 hours.

The Department has analyzed the environmental impacts of this action pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq. ) and has determined that it is categorically excluded pursuant to DOT Order 5610.1C, Procedures for Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical exclusions are actions identified in an agency's NEPA implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). The purpose of this rulemaking is to update the method of collecting and processing aviation traffic data, as well as expanding the number of reporting air carriers, the sample size collected, and the scope of the data reported in the O&D. The Department does not anticipate any environmental impacts, and there are no extraordinary circumstances present in connection with this rulemaking.

Accordingly, the Department amends 14 CFR parts 241 and 298 as follows:

I. Introduction

1. The Federal Energy Regulatory Commission (Commission) is issuing this document to update filing fees that the Commission assesses for specific services and benefits provided to identifiable beneficiaries. Pursuant to 18 CFR 381.104, the Commission is establishing updated fees on the basis of the Commission's Fiscal Year 2022 costs.

2. The Office of Management and Budget (OMB) approves certain information collection requirements imposed by agency rule. 1 However, this rule does not contain any new or additional information collection requirements. Therefore, compliance with OMB's regulations is not required.

3. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 2

4. Part 380 of the Commission's regulations lists exemptions to the requirement to draft an Environmental Analysis or Environmental Impact Statement. Included is an exemption for procedural, ministerial, or internal administrative actions. 3 Accordingly, this rulemaking is exempt from the requirement to draft such documents under that provision.

5. The Regulatory Flexibility Act of 1980 (RFA)  4 generally requires a description and analysis of final rules that will have a significant economic impact on a substantial number of small entities. This rule concerns an update to filing fees. The Commission certifies that it will not have a significant economic impact upon participants in Commission proceedings. An analysis under the RFA is therefore not required.

6. 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 ( https://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).

7. The full text of this document is available on the Commission's Home Page, 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 of this document in the docket number field.

8. 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.

9. The Commission is issuing this rule as a final rule without a period for public comment. Under 5 U.S.C. 553(b)(3)(A), notice-and-comment rulemaking procedures are unnecessary for “rules of agency organization, procedure, or practice.” This rule is therefore exempt from notice-and-comment rulemaking procedures, because it concerns the Commission's procedures and practices. In particular, the rule adjusts filing fee amounts. The rule will not significantly affect regulated entities or the general public.

10. This rule is effective March 2, 2023.

The new fee schedule is as follows:

In consideration of the foregoing, the Commission amends part 381, chapter I, title 18, Code of Federal Regulations, as set forth below.

I. Background

Upon request, FDA has classified the software for optical camera-based measurement of pulse rate, heart rate, breathing rate, and/or respiratory rate as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by placing the device into a lower device class than the automatic class III assignment.

The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.

Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.

When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see section 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.

On March 27, 2020, FDA received Oxehealth Limited's request for De Novo classification of the Oxehealth Vital Signs. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

Therefore, on March 26, 2021, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 870.2785. 1 We have named the generic type of device software for optical camera-based measurement of pulse rate, heart rate, breathing rate, and/or respiratory rate, and it is identified as a device that uses software algorithms to analyze video signal and estimate pulse rate, heart rate, breathing rate, and/or respiratory rate. This device is not intended to independently direct therapy.

FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. In order for a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.

The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in 21 CFR part 860, subpart D, regarding De Novo Classification have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 870 is amended as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

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. We must establish this safety zone immediately to protect personnel, vessels, and the marine environment from potential hazards created by the fireworks display and lack sufficient time to provide a reasonable comment period and then to consider those comments before issuing the rule.

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 contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with fireworks launched from a barge in the waters of the Laguna Madre.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Corpus Christi (COTP) has determined that potential hazards associated with the fireworks display from 8:30 through 9 p.m. on January 28, 2023, will be a safety concern for anyone within the waters of the Laguna Madre area with a 200 yds radius from the following point; 26°5′49.71″ N, 97°10′14.69″ W. The purpose of this rule is to ensure safety of vessels and persons on these navigable waters in the safety zone while the display of the fireworks takes place in the Laguna Madre.

This rule establishes a temporary safety zone from 8:30 through 9 p.m. on January 28, 2023. The safety zone will encompass certain navigable waters of the Laguna Madre and is defined by a 200 yds radius around the launching platform. The regulated area encompasses a 200 yds radius from the following point; 26°5′49.71″ N, 97°10′14.69″ W. The fireworks display will take place in waters of the Laguna Madre. No vessel or person is permitted to enter the temporary safety zone during the effective period without obtaining permission from the COTP or a designated representative, who may be contacted on Channel 16 VHF-FM (156.8 MHz) or by telephone at 361-939-0450. The Coast Guard will issue Broadcast Notices to Mariners, Local Notices to Mariners, and/or Safety Marine Information Broadcasts as appropriate.

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 size, location, and duration of the safety zone. The temporary safety zone will be enforced for a short period of less than one hour. The zone is limited to a 200 yds radius from the launching position of in the navigable waters of the Laguna Madre. The rule does not completely restrict the traffic within a waterway and allows mariners to request permission to enter the 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 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 temporary 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 contact 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. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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, 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 establishment of a temporary safety zone for navigable waters of the Laguna Madre in a zone defined by a 200 yds radius from the following coordinate: 26°5′49.71″ N, 97°10′14.69″ W. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by fireworks display in the waters of the Laguna Madre. It is categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A record of environmental consideration is not necessary, but will be provided if needed.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact 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:

This is a summary of the Commission's Order, FCC 22-94, MD Docket No. 20-270, adopted on December 15, 2022 and released on December 16, 2022. Based on the CPI, there is an increase of 11.6 percent in application fees. The full text of this document is available for public inspection by downloading the text from the Commission's website at http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0906/FCC-17-111A1.pdf.

1. No final regulatory flexibility analysis is required pursuant to 5 U.S.C. 604(a) of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.

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

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

4. By this Order, the Commission makes rule changes to Part 1 of the Commission's rules, and adjusts its Schedule of Application Fees, 47 CFR 1.1102 et seq., as listed in the Final Rules at the end of this document, to adjust its fees for processing applications and other filings. Section 8(b)(1) of the Communications Act of 1934, as amended (Communications Act or Act), requires the Commission, in every even-numbered year, to adjust the schedule of application fees to reflect increases or decreases in the Consumer Price Index (CPI), rounded to the nearest $5 increment. However, pursuant to section 8(b)(2) of the Act, the Commission may not adjust an application fee if: (1) in the case of a fee the current amount of which is less than $200, the adjustment would result in a change in the current amount of less than $10 or (2) in the case of a fee the current amount of which is $200 or more, the adjustment would result in a change in the current amount of less than 5 percent.

5. In December 2020, pursuant to authority established by the RAY BAUM'S Act, the Commission adopted a new application fee schedule that significantly updated the Commission's previous fee schedule in both types of applications and other processes covered by the fee requirement and also in the fee amounts. The application fees for the Office of Engineering and Technology and the Media Bureau became effective on July 15, 2021, for the Enforcement Bureau, the Wireline Competition Bureau, and the International Bureau on December 15, 2021, and for the Wireless Telecommunications Bureau on April 19, 2022. Pursuant to section 8(b) of the Act, we are required to adjust the application fee schedule this year. Thus, this Order adjusts the application fees to reflect the net change in the CPI of 11.6 percent, an increase of 30.958 index points calculated from 267.054 to 298.012. The adjustments comply with the requirements set forth in section 8(b) of the Act.

6. Procedural Matters. The methodology and timing of adjustments to application fees are prescribed by statute at 47 U.S.C. 158(b). Because our action implementing the statute under section 8(b) leaves us no discretion, prior notice and comment is unnecessary pursuant to 5 U.S.C. 553(b)(3)(B). Additionally, no final regulatory flexibility analysis is required pursuant to 5 U.S.C. 604(a) of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. Further, this document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

7. Additionally, the Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs, that this rule is non-major under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A) and section 9a(b) of the Act. Notification of the fee adjustments made in this Order will also be published in the Federal Register .

8. Electronic Payments. As a reminder, filers are required to submit payments electronically in accordance with the procedures set forth on the Commission's website, https://www.fcc.gov/licensing-databases/fees/application-processing-fees. Payments can be made through the Commission Registration System (CORES), accessible at https://apps.fcc.gov/cores/userLogin.do. To file applications, tariffs, and petitions, parties should utilize, as applicable, the Commission's Electronic Tariff Filing System (ETFS) for tariffs, which can be found at https://apps.fcc.gov/etfs/etfsHome.action, or the Electronic Comment Filing System (ECFS), which can be found at http://apps.fcc.gov/ecfs/upload/display. Petitions filed in hard copy format should be submitted according to the procedures set forth on the web page of the Commission's Office of the Secretary, accessible at https://www.fcc.gov/seretary.

9. Accordingly, it is ordered , that, pursuant to sections 1, 4(i), 4(j), and 8 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 158, the rule changes specified herein are adopted and the Schedule of Application Fees, 47 CFR 1.1102 et seq., is amended as set forth in the Final Rules at the end of this document.

10. It is further ordered that the rule changes and adjustments to the Schedule of Application Fees made herein shall become effective 30 days after publication in the Federal Register .

11. It is further ordered that the Office of the Managing Director, Performance Evaluation and Records Management, shall send a copy of this Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), and section 9a(b) of the Act.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

Executive Summary

Why we need to publish a rule. Under the Act, a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become endangered within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the Sacramento Mountains checkerspot butterfly meets the definition of an endangered species; therefore, we are listing it as such. Listing a species as an endangered or threatened species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. We are listing the Sacramento Mountains checkerspot butterfly as an endangered species under the Act. As explained later in this document, we are working on a separate rule to propose critical habitat for the Sacramento Mountains checkerspot butterfly.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the Sacramento Mountains checkerspot butterfly is endangered due to the following threats: incompatible grazing, recreation, climate change, invasive and nonnative plants, and an altered wildfire regime.

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

We determined that designation of critical habitat was prudent but not determinable at this time because specific information needed to analyze the impacts of designation was lacking. We are still in the process of assessing this information. We plan to publish a proposed rule to designate critical habitat for the Sacramento Mountains checkerspot butterfly in the near future.

On January 25, 2022, we published in the Federal Register (87 FR 3739) a proposed rule to list the Sacramento Mountains checkerspot butterfly as an endangered species and concluded that critical habitat was not determinable at that time (16 U.S.C. 1531 et seq. ). Please refer to that proposed rule for a detailed description of previous Federal actions concerning this butterfly.

An assessment team prepared a current condition assessment report for the Sacramento Mountains checkerspot butterfly. The team was composed of Service biologists in consultation with other species experts. The report represents a compilation of the best scientific and commercial data available concerning the status of the Sacramento Mountains checkerspot butterfly, including the impacts of past and present factors (both negative and beneficial) affecting the subspecies. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we solicited independent scientific review of the information contained in the report. As discussed in the proposed rule, we sent the report to five appropriate and independent peer reviewers and received three responses. The peer reviews can be found at https://www.regulations.gov. In preparing the proposed rule, we incorporated the results of these reviews, as appropriate, into the report, which was the foundation for the proposed rule and this final rule.

We received comments and suggested clarifications on the January 25, 2022, proposed rule, and we updated the corresponding text of the current condition assessment report and this rule. Those updates include:

(1) New observation data of the butterfly in 2020 in Bailey Canyon;

(2) Additional details and clarification on elk, feral horse, and cattle grazing; and

(3) Several nonsubstantive clarifications and corrections to ensure better consistency, clarify some information, and update references.

We did not make any substantial changes to this final rule after consideration of the comments we received on the proposed rule.

In the proposed rule published on January 25, 2022 (87 FR 3739), we requested that all interested parties submit written comments on the proposal by March 28, 2022. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Alamogordo Daily News, Albuquerque Journal, Las Cruces Sun-News, Rio Rancho Observer, and Ruidoso News. We did not receive any requests for a public hearing.

As discussed in Peer Review above, we received comments from three peer reviewers on the current condition assessment report. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the information contained in the current condition assessment report. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions that we incorporated into an updated version of the current condition assessment report. The peer reviewers' comments did not change our determination that the Sacramento Mountains checkerspot butterfly meets the definition of an endangered species under the Act. Below is a summary of comments from peer reviewers we received.

(1) Comment: Peer reviewers commented that we should add information to specific sections of the current condition assessment report, such as climate change and the butterfly's life history.

Response: We added information to these discussions in the current condition assessment report. We elaborated where appropriate but did not go into as great of detail as the reviewers requested because our analysis indicates that the butterfly is in danger of extinction based on its current condition. We acknowledge that there is a greater body of work on these issues, such as climate change in the southwestern United States, and the current condition assessment report is not meant to be a comprehensive literature review on climate change overall, nor would it change our analysis. We will ensure that the impacts of climate change and all other appropriate information as it relates to the butterfly, its life history, and resources are included in recovery planning.

(2) Comment: The U.S. Forest Service (Forest Service) commented that we need to define intensive grazing and explain how to measure that in monitoring and defined violations. They further commented that new chemicals and methods of herbicide use need to be clarified.

Response: We are not able to provide a specific definition on what constitutes intensive grazing. Rather, we changed “intensive” to “incompatible” to capture any grazing activities that are incompatible with the needs of the Sacramento Mountains checkerspot butterfly. This may include any activities that reduce suitable butterfly habitat by impacting the resource needs of the butterfly, such as presence/quantity of host plants, nectar sources, or moisture. We are also not able to provide information on how new chemicals and methods of herbicide use may affect the subspecies. The use of herbicide by a Federal agency in the presence of a listed species would require that Federal agency to consult with the Service under section 7 of the Act to ensure that the action is not likely to jeopardize the species. Similarly, should a Federal agency use a new chemical or change the timing of herbicide use, they would have to consult with the Service. Particular information regarding use and timing of that chemical would be elucidated in the consultation process, and avoidance and minimization measures would be determined.

(3) Comment: The Forest Service stated that the use of herbicide/pesticides in the list of actions that may not violate section 9 of the Act is a contradiction to the conservation recommendation that herbicides should be used to restore butterfly habitat.

Response: In the January 25, 2022, proposed rule (87 FR 3739), we state that herbicide application authorized or carried out by a Federal agency would not likely violate section 9 of the Act. We clarify in this final rule that any use of herbicides that would result in take of the butterfly would be a violation, not the use of herbicide itself. The use of herbicide or pesticides by a Federal agency in the presence of a listed species would require that Federal agency to consult with the Service under section 7 of the Act to ensure that the Federal agency action is not likely to jeopardize the species, but we do not consider that herbicide use itself would likely result in a violation of section 9 of the Act. Herbicides may also be used as a tool for habitat restoration and would not be a violation of section 9 of the Act if used as directed by the label and after the Federal action agency consults with the Service.

(4) Comment: New Mexico Department of Game and Fish commented that the limited data available are insufficient to draw conclusions regarding the impact of elk on the butterfly.

Response: We considered the best scientific and commercial data available regarding the Sacramento Mountains checkerspot butterfly to evaluate its status under the Act. Also, in accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited peer review from knowledgeable individuals with scientific expertise that included familiarity with the Sacramento Mountains checkerspot butterfly, the geographic region in which the subspecies occurs, and conservation biology principles. Additionally, we requested comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties concerning the January 25, 2022, proposed rule (87 FR 3739). Comments and information we received helped inform this final rule. Elk will browse New Mexico beardtongue ( Penstemon neomexicanus ) during drought conditions, as vegetation becomes scarce (McIntyre 2021, pers. comm.). This causes the New Mexico beardtongue to remain as small rosettes that are not large enough to support tent colonies of caterpillars and any larvae will starve after hatching. Browsing ultimately reduces available host plants, which are an essential need for the viability of the Sacramento Mountains checkerspot butterfly. Therefore, we think it is reasonable to conclude, as we did in this final rule, that elk grazing can impact the Sacramento Mountains checkerspot butterfly's viability, especially when populations are at low numbers.

We agree that outside of drought conditions, the effect of elk on the butterfly's habitat is different and more nuanced. We acknowledge that elk are a natural part of the ecosystem, filling an ecological niche that is generally compatible with the viability of the butterfly. However, during times of prolonged drought, synergistic effects lead to increased habitat degradation, during which times both butterflies and elk can be negatively impacted by increased temperature, decreased precipitation, and increased browse pressure from other ungulates.

(5) Comment: The New Mexico Department of Agriculture stated that the proposed rule implied that livestock grazing is not a risk factor to the butterfly due to the absence of livestock, which can be misconstrued to suggest that if the Forest Service were to resume livestock grazing within the range of the subspecies, that would be incompatible with the conservation of the subspecies.

Response: The previous version of the current condition assessment report (Service 2021, pp. 12-13) stated that there is no information indicating that livestock grazing significantly affects the butterfly's status now or will do so in the foreseeable future; therefore, livestock grazing is not a significant threat to the butterfly because it does not occur within areas where the butterfly is currently extant. In this rule, we clarify that livestock grazing, were it to occur within occupied habitat, has the potential to impact the Sacramento Mountains checkerspot butterfly especially during drought conditions. We acknowledge that livestock grazing does occur within the butterfly's historical range and acts synergistically to contribute to the decline of habitat suitability within those active allotments. We amended the current condition assessment report and the information in this rule to reflect this analysis of current condition and how it has impacted the subspecies previously. We have also updated the discussion in this final rule of how grazing might affect the butterfly's status now and into the foreseeable future.

We received 45 public comments on the proposed rule. One comment provided us with new information on the Bailey Canyon population that we have incorporated into our analysis, but it did not change our determination that the Sacramento Mountains checkerspot butterfly is in danger of extinction. The remaining comments did not provide any new substantial information on the subspecies' status or threats. Therefore, none of the public comments we received changed our determination that the Sacramento Mountains checkerspot butterfly meets the Act's definition of an endangered species. Some commenters provided suggestions that apply to issues outside the scope of this rulemaking, such as recovery strategies for the Sacramento Mountains checkerspot butterfly, but these suggestions are not directly related to the butterfly's this final rule to list the species as an endangered species. These general comments included topics such as the role of the Sacramento Mountains checkerspot butterfly in the ecosystem, the importance of habitat heterogeneity, and the use of specific conservation measures. While these comments are not directly incorporated into this final rule, we have noted the suggestions and look forward to working with our partners on these topics during recovery planning for the Sacramento Mountains checkerspot butterfly. Comments that we incorporated as changes into this final rule, comments outside the scope of this rulemaking, and comments without supporting information did not warrant an explicit response and, thus, are not presented here. Identical or similar comments have been consolidated, and a single response is provided below.

(6) Comment: Several commenters stated that critical habitat should be designated for the Sacramento Mountains checkerspot butterfly. One commenter said that it is determinable and gave information on where we should propose critical habitat, while another recommended an approach for us to use for the economic analysis.

Response: Section 4(a)(3) of the Act and implementing regulations (50 CFR 424.12) require that we designate critical habitat at the time a species is determined to be an endangered or threatened species, to the maximum extent prudent and determinable. In the proposed listing rule (87 FR 3739; January 25, 2022), we determined that designation of critical habitat was prudent but not determinable because specific information needed to analyze the economic and environmental impacts of designation was lacking. Those analyses were not yet completed at the time we published the proposed rule. We are currently in the process of assessing this information, and we plan to publish a proposed rule to designate critical habitat for the Sacramento Mountains checkerspot butterfly in the near future. In that upcoming rulemaking, we will evaluate areas to determine if they should be proposed for critical habitat. We will request public comments on the proposed designation of critical habitat for the Sacramento Mountains checkerspot butterfly when we publish that proposed rule.

(7) Comment: Several commenters stated concerns about the impacts to landowners, such as taking away their property rights and use of pesticides and stated that we should compensate affected landowners. Another commenter added that the Act is harmful to landowners and violates the 5th Amendment.

Response: The 5th Amendment states that private property may not be taken for public use without just compensation. The mere promulgation of a regulation, such as the listing of a species under the Act, does not take private property, unless the regulation on its face denies the property owners all economically beneficial or productive use of their land, which is not the case with the listing of the Sacramento Mountains checkerspot butterfly.

The presence of a listed species does not affect land ownership, establish any restrictions on use of or access to the designated areas, establish specific land management standards or prescriptions, or prevent access to any land. Therefore, the Act does not violate the 5th Amendment as private property is not being taken for public use. Additionally, the presence of a listed species does not allow the Federal Government or public to access private lands.

The Act does not authorize the Service to regulate private actions on private lands, and landowners are not obligated to incur any costs related to the species' conservation or to alter their current land management. Programs are available to private landowners to obtain permits for the incidental take of a listed species (see 50 CFR 17.22 for endangered wildlife and 50 CFR 17.32 for threatened wildlife) and to assist in the voluntary conservation of listed species. Voluntary conservation programs may provide technical or financial assistance to the landowner. Private landowners may contact their local Service field office to obtain information about these permits and programs.

(8) Comment: One commenter stated that the Sacramento Mountains checkerspot butterfly is not a true subspecies.

Response: We considered the best scientific and commercial data available regarding the Sacramento Mountains checkerspot butterfly's taxonomy. The Sacramento Mountains checkerspot butterfly was first described as a subspecies of the Anicia checkerspot in 1980 (Ferris and Holland 1980, pp. 3-9), which was later corroborated (Glassberg 2017, p. 207; Pohl et al . 2016, p. 315). Checkerspot butterflies in the Euphydryas genus are similar but can be distinguished from one another by several subtle morphological traits. The Sacramento Mountains checkerspot butterfly has darker colors overall compared to other checkerspots (Ferris and Holland 1980, p. 5). Therefore, we reaffirm our previous conclusion that the Sacramento Mountain's checkerspot butterfly is a valid species, and thus, a valid listable entity under the Act.

(9) Comment: One commenter stated that there are many aspects of the butterfly's life history that are unknown or not well understood, which makes it impossible to determine the butterfly's viability.

Response: We based this final listing determination on the best available scientific and commercial information, and the commenter did not provide any new information for us to consider. The best available information on the Sacramento Mountains checkerspot butterfly indicates the butterfly needs host plants, larval food sources, and climatic moisture. In assessing the viability of the butterfly, the best available scientific and commercial data provide information about some aspects of subspecies' biology and habitat requirements but may not represent a full and complete knowledge of the subspecies. We drew reasonable conclusions about other aspects of the subspecies' biology and requirements based on similar species, similar habitats, and best available information.

(10) Comment: Two commenters asked what our standard is for the “best available science.”

Response: In accordance with section 4 of the Act, we are required to list a species on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards under the Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines ( https://www.fws.gov/program/information-quality ) provide criteria and guidance, and establish procedures to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for listing recommendations. Primary or original information sources are those that are closest to the subject being studied, as opposed to those that cite, comment on, or build upon primary sources. The Act and our regulations do not require us to use only peer-reviewed literature, but instead they require us to use the “best scientific data available” in a listing determination. We use information from many different sources, including, but not limited to, articles in peer-reviewed journals, scientific status surveys and studies completed by qualified individuals, Master's thesis research that has been reviewed but not published in a journal, other unpublished governmental and nongovernmental reports, reports prepared by industry, personal communication about management or other relevant topics, conservation plans developed by States and counties, biological assessments, other unpublished materials, experts' opinions or personal knowledge, and other sources. We have considered published articles, unpublished research, habitat modeling reports, digital data publicly available on the internet, and the expert opinion of subject biologists to determine that the Sacramento Mountains checkerspot butterfly meets the Act's definition of an endangered species.

Also, in accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited peer review from knowledgeable individuals with scientific expertise that included familiarity with the Sacramento Mountains checkerspot butterfly, the geographic region in which the subspecies occurs, and conservation biology principles. Additionally, we requested comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties concerning our January 25, 2022, proposed rule (87 FR 3739). Comments and information we received helped inform this final rule.

(11) Comment: One commenter asked how the public will know if comments are considered in making a determination or merely noted as “commercial data” and are therefore not actually considered.

Response: In accordance with section 4 of the Act, we are required to list a species on the basis of the best scientific and commercial data available. Therefore, if any comments are received that we classify as “commercial data,” they are considered in our listing determination.

(12) Comment: One commenter also asked how the Service plans to address drought and other natural occurrences that are affecting the Sacramento Mountains checkerspot butterfly.

Response: Drought and other naturally occurring events are important as they relate to the conservation needs of the butterfly, and we will consider these factors as we develop a recovery plan and specific recovery strategies for the conservation of the Sacramento Mountains checkerspot butterfly.

(13) Comment: One commenter asked if the Service bears the total cost of management actions as they relate to recovery.

Response: The Service puts as many resources as we can, including recovery grant funding and staff time, into the implementation of recovery actions. Additionally, we also rely on expertise and funding from other Federal agencies, States, Tribes, and other entities to implement recovery of listed species.

(14) Comment: One commenter asked which animal(s) any exclosures are meant to keep out of butterfly habitat on the Lincoln National Forest and how many taxpayer dollars will be spent to construct these exclosures.

Response: Exclosures that have been erected on the Lincoln National Forest are meant to prevent any large ungulate or grazer from feeding on butterfly host plants and nectar sources. This practice is often used by land management agencies to allow for vegetation to recover from overgrazing. Because the Sacramento Mountains checkerspot butterfly is known to occupy areas entirely on the Lincoln National Forest, we expect that the Forest Service would be a leader in the recovery of the species. We expect that additional exclosures would be paid for by the Service and Forest Service and we do not have estimates on the total cost. When we develop our recovery plan for the species, it will include an estimate of the costs of recovery.

(15) Comment: One commenter asked what a “jeopardy finding” is, how it is determined, and what the consequences are.

Response: “Jeopardize the continued existence of” means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species (50 CFR 402.02). Per policy and regulation, the jeopardy analysis in a biological opinion relies on four components in our evaluation for each species:

1. The Status of the Species—evaluates the species' range-wide condition, the factors responsible for that condition, and its survival and recovery needs;

2. The Environmental Baseline—evaluates the condition of the species in the action area, the factors which are responsible for that condition, and the relationship of the action area to the survival and recovery of the species;

3. The Effects of the Action—determines the consequences of the proposed Federal action on the species that are reasonably certain to occur as a result of the proposed action; and,

4. Cumulative Effects—evaluates the effects of future, non-Federal activities in the action area on the species.

The jeopardy determination is made by evaluating the effects of the Federal action in the context of the species' status. This analysis considers any cumulative effects to determine if the implementation of the action is likely to cause an appreciable reduction in the likelihood of both the survival and recovery of the species in the wild. The jeopardy analysis places emphasis on consideration of the range-wide survival and recovery needs of the species and the role of the action area in the survival and recovery of the species as the context for evaluating the significance of the effects of the Federal action, taken together with cumulative effects, for purposes of making the jeopardy determination.

(16) Comment: One commenter asked how law enforcement is involved in listing the Sacramento Mountains checkerspot butterfly as an endangered species.

Response: The Service's Office of Law Enforcement works to protect threatened and endangered species by enforcing violations of Section 9 under the Act, such as, but not limited to, preventing the unlawful commercial exploitation of such species. The Service is committed to meeting all requirements and enforcing the Act and doing so legally. The Service maintains a comprehensive approach to conservation, and we will work together with the Office of Law Enforcement to achieve our conservation goals.

(17) Comment: One commenter asked how listing of the Sacramento Mountains checkerspot butterfly is determined when the Act directly conflicts with the Wild Free-Roaming Horses and Burros Act of 1971, as amended (16 U.S.C. 1331 et seq. ).

Response: The Wild Free-Roaming Horses and Burros Act was established to protect wild horses and burros on Federal land from capture, branding, harassment, or death by placing them under the jurisdiction of the Bureau of Land Management and the Forest Service. Each Act imposes its own requirements. This rule listing the Sacramento Mountains checkerspot butterfly as an endangered species under the Act does not violate the Wild Free-Roaming Horses and Burros Act because we can achieve conservation of the butterfly while also protecting wild horses and burros on Federal land.

(18) Comment: One commenter asked why the Secretary of Commerce is not a determining agency for this rule.

Response: The Act states that the term “Secretary” means, except as otherwise provided, the Secretary of the Interior or the Secretary of Commerce as program responsibilities are vested pursuant to the provisions of Reorganization Plan No. 4 of 1970, which established that the Secretary of Commerce would have functions relating to the oceans and atmosphere, including commercial fisheries functions. Because this subspecies falls under the jurisdiction of the Department of the Interior ( i.e., the Service) and not the Department of Commerce ( i.e., the National Marine Fisheries Service), the Secretary of the Interior maintains program responsibilities under the Act.

(19) Comment: One commenter said that our statement that possession, delivery, or movement, including interstate transport and import into or export from the United States, involving no commercial activity, of dead specimens of this taxon that were collected prior to the effective date of a final rule adding this taxon to the Federal List of Endangered and Threatened Wildlife is unlikely to violate section 9 of the Act is a violation of the Lacey Act (16 U.S.C. 3371-3378; 18 U.S.C. 42).

Response: Section 9 of the Act (and its implementing regulations at 50 CFR part 17) and the Lacey Act (and its implementing regulations at 50 CFR part 16) impose separate permitting requirements. This rule, authorized by the Act, does not address permitting requirements imposed under the Lacey Act; as a result, importers and exporters are responsible for following all applicable regulatory requirements under the Lacey Act and any other relevant law.

Please refer to the revised current condition assessment report (Service 2022, entire) and the January 25, 2022, proposed rule to list the Sacramento Mountains checkerspot butterfly (87 FR 3739) for a full summary of the taxon's information. Both are available on our Southwest Region website at https://www.fws.gov/about/region/southwest and at https://www.regulations.gov under Docket No. FWS-R2-ES-2021-0069.

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for threatened and endangered species. In 2019, jointly with the National Marine Fisheries Service, the Service issued final rules that revised the regulations in 50 CFR part 424 regarding how we add, remove, and reclassify threatened and endangered species and the criteria for designating listed species' critical habitat (84 FR 45020; August 27, 2019). At the same time the Service also issued final regulations that, for species listed as threatened species after September 26, 2019, eliminated the Service's general protective regulations automatically applying to threatened species the prohibitions that section 9 of the Act applies to endangered species (84 CFR 44753; August 27, 2019). We collectively refer to these actions as the 2019 regulations.

As with the proposed rule, we are applying the 2019 regulations for this final rule because the 2019 regulations are in effect just as they were when we completed the proposed rule. Although there was a period in the interim—between July 5, 2022, and September 21, 2022—when the 2019 regulations became vacated and the pre-2019 regulations were therefore reinstated ( see Center for Biological Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July 5, 2022) (vacating the 2019 regulations and thereby reinstating the pre-2019 regulations), the 2019 regulations are now in effect, so we must apply them when making listing and critical habitat decisions ( In re: Cattlemen's Ass'n, No. 22-70194 (9th Cir. Sept. 21, 2022) (staying the district court's order vacating the 2019 regulations until the district court resolved a pending motion to amend the order); Center for Biological Diversity v. Haaland, No. 4:19-cv-5206-JST, Doc. Nos. 197, 198 (N.D. Cal. Nov. 16, 2022) (granting plaintiffs' motion to amend July 5, 2022, order and granting government's motion for remand without vacatur).

The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary 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 the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain;” it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

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

The current condition assessment report (Service 2022, entire) documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The current condition assessment report does not represent our decision on whether the species should be listed as an endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies.

To assess Sacramento Mountains checkerspot butterfly's viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy is the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation is the ability of the species to adapt to both near-term and long-term changes in its physical and biological environment (for example, climate conditions, pathogens). In general, species viability will increase with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306). Using these principles, we identified the butterfly's ecological requirements for survival and reproduction at the individual, population, and subspecies levels, and described the beneficial and risk factors influencing the subspecies' viability.

Our analysis can be categorized into several sequential stages. During the first stage, we evaluated the individual subspecies' life-history needs. The next stage involved an assessment of the historical and current conditions of the subspecies' demographics and habitat characteristics, including an explanation of how the subspecies arrived at its current condition. Throughout these stages, we used the best available information to characterize viability as the ability of the subspecies to sustain populations in the wild over time. We use this information to inform our regulatory decision.

The following is a summary of the key results and conclusions from the current condition assessment report; the full report can be found at https://www.regulations.gov under Docket No. FWS-R2-ES-2021-0069 and at https://www.fws.gov/office/new-mexico-ecological-services .

Below, we review the biological condition of the Sacramento Mountains checkerspot butterfly and its resources, and the threats that influence the subspecies' current and future condition, in order to assess the subspecies' overall viability and the risks to that viability.

For the Sacramento Mountains checkerspot butterfly to maintain viability, its populations or some portion thereof must have sufficient resiliency, redundancy, and representation. Several factors influence the resiliency of Sacramento Mountains checkerspot butterfly populations, including larval and adult abundance and density, in addition to elements of the subspecies' habitat that determine whether Sacramento Mountains checkerspot butterfly populations can survive and reproduce. These resiliency factors and habitat elements are discussed in detail in the current condition assessment report and are summarized here.

To successfully reproduce and maintain or increase their fecundity and abundance, butterflies need access to mates. The Sacramento Mountains checkerspot butterfly is not a long-distance flier and probably relies on local abundance and population density and particular mate-location behaviors to successfully mate and reproduce (Pittenger and Yori 2003, p. 39). Higher densities and more abundant individuals result in more successful mating attempts and ensure the subspecies' viability. Metapopulation dynamics are also maintained by abundance and density within meadows (Pittenger and Yori 2003, pp. 39-40).

The most crucial habitat factor for the Sacramento Mountains checkerspot butterfly is the New Mexico beardtongue's presence and abundance (McIntyre 2021, pers. comm.). The larvae rely nearly entirely upon the New Mexico beardtongue during pre- and post-diapause. Because of the Sacramento Mountains checkerspot butterfly's dependency on New Mexico beardtongue, it is vulnerable to any type of habitat degradation, which reduces the host plant's health and abundance (Service et al. 2005, p. 9).

New Mexico beardtongue is a member of the Plantaginaceae, or plantain, family (Oxelman et al. 2005, p. 425). These perennial plants prefer wooded slopes or open glades in ponderosa pine and spruce/fir forests at elevations between 1,830 and 2,750 meters (m) (6,000 and 9,000 feet (ft)) (New Mexico Rare Plant Technical Council 1999, entire). New Mexico beardtongue is native to the Sacramento Mountains within Lincoln and Otero Counties (Sivinski and Knight 1996, p. 289). The plant is perennial, has purple or violet-blue flowers, and grows to be half a meter tall (1.9 ft). New Mexico beardtongue occurs in areas with loose soils or where there has been recent soil disturbance, such as eroded banks and pocket gopher burrows (Pittenger and Yori 2003, p. ii). Some plant species within the plantain family, including the New Mexico beardtongue, contain iridoid glycosides, a family of organic compounds that are bitter and an emetic (vomit-inducing) for many birds and small mammal species. The Sacramento Mountains checkerspot butterfly, like other subspecies of Euphydryas anicia, sequester the iridoid glycosides as caterpillars. It is believed that these compounds make the larvae and adult butterflies distasteful or unpalatable to predators (Gardner and Stermitz 1987, pp. 2152-2167).

Access to nectar sources is needed for adult Sacramento Mountains checkerspot butterflies to properly carry out their life cycle. The primary adult nectar source is orange sneezeweed ( Hymenoxys hoopesii ) (Service et al. 2005, p. 9). Forest Service personnel observed butterflies visiting orange composite flowers (family Asteraceae), including orange sneezeweed, as much as 90 percent of the time during surveys (Forest Service 2000, p. 4). Other surveys have shown that adult butterflies are closely associated with orange sneezeweed flowers (McIntyre 2010, p. 26). Although orange sneezeweed flowers are most frequently used, the butterfly has been observed collecting nectar from various other native nectar sources (Service et al. 2005, pp. 9-10). To contribute to the subspecies' viability, orange sneezeweed and other native nectar sources must bloom at a time that corresponds with the emergence of adult Sacramento Mountains checkerspot butterflies. Although orange sneezeweed flowers are most frequently used, the butterfly has been observed collecting nectar on various other native nectar sources (Service et al. 2005, pp. 9-10). If orange sneezeweed is not blooming during the adult flight period ( i.e., experiencing phenological mismatch), survival and the butterfly's fecundity could decrease. In this case, other species of nectar-producing flowers might be essential for adult butterflies to complete their life cycle.

Before human intervention, the habitat of the Sacramento Mountains checkerspot butterfly is thought to have been dynamic, with meadows forming and reconnecting due to natural wildfire regimes (Service et al. 2005, p. 21). These patterns and processes would have facilitated natural dispersal and recolonization of meadow habitats following disturbance events, especially when there was high butterfly population density in adjacent meadows (Service et al. 2005, p. 21). Currently, spruce-fir forests punctuate suitable butterfly meadow habitats, creating intrinsic barriers to butterfly dispersal and effectively isolating populations from one another (Pittenger and Yori 2003, p. 1). Preliminary genetic research suggested there is extremely low gene flow across the subspecies' range or between meadows surveyed (Ryan 2021, pers. comm.). If new sites are to become colonized or recolonized by the butterfly, meadow areas will need to be connected enough to allow dispersal from occupied areas. Therefore, habitat connectivity is needed for genetically healthy populations across the subspecies' range (Service 2021, p. 8).

We reviewed the potential risk factors ( i.e., threats, stressors) that could be currently affecting the Sacramento Mountains checkerspot butterfly. In this rule, we will discuss only those factors in detail that could meaningfully impact the status of the subspecies. Those risk factors that are unlikely to have significant effects on Sacramento Mountains checkerspot butterfly populations, such as human collection, disease, parasites, predation, insecticides, and habitat loss, are not discussed here but are evaluated in the current condition assessment report.

The primary risk factors ( i.e., threats) affecting the status of the Sacramento Mountains checkerspot butterfly are incompatible grazing (Factor A), recreation (Factor A), climate change (Factor E), invasive and nonnative plants (Factor A), and an altered wildfire regime (Factor A).

Historically, Merriam's elk ( Cervus canadensis merriami ), an extinct subspecies of elk, grazed meadows within the Sacramento Mountains. Under normal conditions, this species likely coexisted without impacting the existence of the butterfly. Rocky Mountain elk ( Cervus canadensis nelsoni ) have been introduced to the Sacramento Mountains, filling the ecological niche previously occupied by Merriam's elk (New Mexico Department of Game and Fish 2009, unpaginated). At natural population levels and normal environmental conditions, elk do not pose a significant threat to the Sacramento Mountains checkerspot butterfly or its habitat. In fact, some studies have shown a positive correlation between elk grazing and caterpillar abundance (McIntyre 2010, pp. 66-69). However, should elk herds expand beyond natural levels or occur during times of resource scarcity, such as extended periods of drought, browse pressure from elk could pose a significant threat to the butterfly's habitat and viability (Service 2021, p. 13).

Additionally, feral horses were inadvertently released from the Mescalero Apache Reservation and dispersed onto the Lincoln National Forest around 2012. Horses are not native to the Sacramento Mountains and add significant browse pressure to meadows. Larger than elk, horses consume large quantities of vegetation and graze more heavily in each area before moving to seek more food (Lightfoot 2022, pers. comm.).

The New Mexico beardtongue is not the main source of food for horses or elk. However, research has shown that elk do selectively browse on large, more robust New Mexico beardtongue plants, which are often the same individual plants selected by female Sacramento Mountains checkerspot butterflies for depositing eggs (McIntyre 2010, p. 72). During dry conditions, such as has been seen over the past 10 years, there is less forage on the landscape overall, which increases browse pressure on perennials such as New Mexico beardtongue.

During these times of prolonged drought, synergistic effects lead to increased habitat degradation, during which times both butterflies and elk can be negatively impacted by increased temperature, decreased precipitation, and increased browse pressure from other ungulates. Under such conditions, New Mexico beardtongue remains as small rosettes less than an inch tall and does not flower when there is significant browse pressure from large herbivores. These small, stunted plants are not large enough to support colonies of caterpillars; any larvae will starve after hatching (Forest Service 2020, p. 11).

The combined effects of feral horse and elk browsing, compounded by drought due to climate change, have significantly impacted habitat within meadow ecosystems in the range of the Sacramento Mountains checkerspot butterfly. Over the past several years, sustained drought in Otero County has driven large herbivores to graze most meadow areas to the ground (McMahan et al. 2021, pp. 1-2). Currently, vegetation for host plant and nectar sources is scarce in all the meadows throughout the range of the Sacramento Mountains checkerspot butterfly (Forest Service 2020, p. 11).

Impacts of livestock grazing on native wildlife in Southwestern montane ecosystems vary depending on the timing, duration, and intensity of grazing (Service et al. 2005, p. 32). Grazing intensities and durations that exceed the ability of herbaceous plants to recover or survive are detrimental to the Sacramento Mountains checkerspot butterfly (Service et al. 2005, p. 31). Drought and increased temperatures can exacerbate this trend. Overgrazing by stock animals has led to the extinction of some butterfly populations in the United States, including butterflies in the genus Euphydryas (Murphy & Weiss 1988, p. 187).

The Forest Service permits livestock grazing in select allotments on the Lincoln National Forest in the Sacramento Mountains. The butterfly's range occurs within about 17 acres (ac) (7.2 hectares (ha)) of the Russia Canyon Allotment (Forest Service 2004, entire), which has two grazing permittees. The Pumphouse Allotment also contains suitable butterfly habitats open to livestock grazing (Service et al. 2005, p. 1; Forest Service 2009, p. 1). Most of the butterfly's range is encompassed by the James Canyon Allotment. Currently, the James Canyon Allotment is vacant (Forest Service 2009, p. 2). At this time, the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) analysis has not yet been finalized, and the James Canyon Allotment remains ungrazed.

The areas where grazing allotments overlap the subspecies' range do not currently contain extant populations of the Sacramento Mountains checkerspot butterfly (Service 2021, p. 12). Extant populations are currently within the ungrazed James Canyon Allotment. Therefore, butterfly individuals are not currently in direct competition with domestic livestock for habitat resources. However, there have been significant impacts from grazing in the past (Lightfoot 2022, pers. comm.).

Livestock grazing, primarily by cattle, has historically been practiced throughout the meadows inhabited by the Sacramento Mountains checkerspot butterfly (Service et al. 2005, p. 29). However, based on the currently available information, the exact relationship between Sacramento Mountains checkerspot butterfly population abundance and cattle grazing is not well understood (Service et al. 2005, p. 30). It is likely the effect of cattle grazing on butterfly abundance varies, depending on the current habitat and climatic conditions. Cattle grazing can result in direct mortality by trampling eggs and larva or by consuming host plants (White 1986, p. 54), impacting butterfly habitat by changing abundance and distribution of host and nectar plants, reducing vegetative cover, altering vegetative communities, compacting and eroding soil, and reducing natural disturbance regimes ( i.e., gopher activity) (Service et al. 2005, p. 29). In some cases, cattle can increase host plant abundance by grazing on competing plant species (Weiss 1999, p. 1480). However, New Mexico beardtongue is consumed by cattle as well, and grazing might reduce available plants and impact the butterfly's presence and survival (McIntyre 2010, pp. 94-104). Research on population abundance in response to grazing for other butterfly species has shown that results vary depending on the species and system studied (Service et al. 2005, p. 30), and Forest Service surveys did not show a strong correlation between grazing and butterfly abundance (Forest Service 2004, p. 7).

Due to current habitat conditions, it is likely that in the areas of the butterfly's range where grazing does occur, that livestock grazing continues to degrade habitat for the Sacramento Mountains checkerspot butterfly. Outside of drought conditions, it might be possible to collect data on the effects of cattle grazing on Sacramento Mountains checkerspot butterfly habitat and establish an adaptive management plan for grazing within butterfly habitat. However, current conditions of butterfly habitat are not compatible with cattle grazing.

In summary, incompatible grazing has resulted in decline of suitable habitat, limiting larval host plants and adult nectar sources for the Sacramento Mountains checkerspot butterfly. All meadow units within the subspecies' range reflect impacts from past and recent grazing.

Over the past 10 years, recreation has increased in the Lincoln National Forest. The September 6, 2001, proposed listing rule (66 FR 46575) determined that off-road vehicle use on Forest Service trails posed some threat to meadow units; off-road vehicle use continues to this day and has increased in popularity. Large recreational vehicle (RV) use has also increased, and the Forest Service does not require permits for parking vehicles within the Lincoln National Forest (Service 2021, p. 14). Meadows within the range of the Sacramento Mountains checkerspot butterfly are popular with RV users because they are open, flat, and easily accessible by road (Hughes 2021b, pers. comm.). A variety of these impacts ( e.g., soil compaction, barren ground, trampled food plants, multiple trails, vehicle tracking) are evident in areas used by larval and adult life stages of the Sacramento Mountains checkerspot butterfly; these impacts are reducing the quality or quantity of suitable habitat in and around developed campgrounds or undeveloped campsites in meadows known to support the Sacramento Mountains checkerspot butterfly (Hughes 2021b, pers. comm.).

Recreation can negatively affect the butterfly in several ways. Trampling and crushing can physically kill both individual butterflies and caterpillars. While adults can fly away, these butterflies are slow, especially on cold mornings. Recreational activities can also crush plants, including New Mexico beardtongue and orange sneezeweed. During times of drought, these plants are especially vulnerable and unlikely to survive repeated damage (Service 2021, p. 14). Additionally, RVs compact soil where large vehicles are parked. Repeated trampling by humans around the vehicles, caused by normal camping activities, will further compact soils, making it less likely for New Mexico beardtongue to recover or re-establish in former campsites (Hughes 2021b, pers. comm.).

In summary, recreation by humans can directly kill Sacramento Mountains checkerspot butterflies and their larvae. All meadow units within the range are experiencing some level of impact from recreation.

Climate change is impacting natural ecosystems in the southwestern United States (McMahan et al. 2021, p. 1). The Sacramento Mountains are sky islands surrounded by a matrix of desert grassland, which hosts a unique mix of flora and fauna (Brown et al. 2001, p. 116). This ecosystem is sensitive even to small changes in temperature and precipitation regimes. Such changes to the environment can significantly alter air temperature, the amount of precipitation, and the timing of precipitation events (Service et al. 2005, p. 37).

New Mexico has been in a drought for the past several years. Roughly 54 percent of New Mexico is currently experiencing an exceptional drought, including the Sacramento Mountains (McMahan et al. 2021, pp. 1-2). Droughts of this severity push wildlife to alter behavior based on available resources, while vegetation in habitats becomes extremely degraded (McMahan et al. 2021, entire).

Over the past several years, annual precipitation levels have decreased throughout the butterfly's range. Snowfall and corresponding snowpack have remained well below normal levels (Forest Service 2020, pp. 11-12). Some alpine butterflies need high levels of snowpack during diapause to shelter from wind and cold temperatures. The same might be true for the Sacramento Mountains checkerspot butterfly, as the subspecies likely evolved with higher levels of winter snowpack than have been experienced over the past decade (Hughes 2021a, pers. comm.). However, while snowpack might be an important factor, we do not have enough evidence to analyze the effects of low snow years on the butterfly.

Recent shifts in climate can impact how species interact with their environment. The timing of butterfly life-history events during an annual cycle can shift due to increases in temperature, changes in humidity, and length of growing season. These shifts can directly be attributed to the effects of climate change. For habitat specialists such as the Sacramento Mountains checkerspot butterfly, shifts in phenological timing can have important consequences for population dynamics and viability (Colorado-Ruiz et al. 2018, pp. 5706-5707). It is likely that climate change has already caused some level of phenotypic mismatch (when life-history traits are no longer advantageous due to changes in the environment) between the butterfly, its host plants, and its nectar sources (Service 2022, p. 9). This shift negatively impacts the butterfly because it has adapted to specific timing of resource availability ( i.e., growth of host plants, blooming of nectar sources) in various stages of its life cycle, and climate change has altered the timing, quality, and quantity of those resources.

The Sacramento Mountains checkerspot butterfly needs adequate vegetation growth in host plants and nectar sources during the summer months to survive (Service et al. 2005, p. 15). Vegetation growth within the butterfly's range appears to rely heavily on summer rains. Large rainfall events typically form during the mid-summer months in the Sacramento Mountains, marking the beginning of the monsoon season. These midday showers occur almost daily for several months, stimulating much of the vegetation to grow and proliferate during the midsummer season. Specifically, New Mexico beardtongue growth increases in response to the monsoons. It is thought that moisture might also encourage the butterflies to emerge from diapause as well (Service et al. 2005, pp. 37-38).

Climate change is impacting the timing of monsoon events throughout the Southwest (Service 2021, p. 15). New Mexico beardtongue and other plant species in subalpine meadows are adapted to the pulse of moisture from monsoons (Service et al. 2005, pp. 37-38). With a lack of, or altered, monsoon rains, the butterfly is at risk, as the subspecies relies on vegetation growth dependent upon the timing of precipitation.

The 2020 monsoon season was an exceptionally weak one, with far less precipitation falling than in an average summer (McMahan et al. 2021, unpaginated). As a result, New Mexico beardtongue growth was also weak; few plants grew larger than small rosettes on the ground. Even fewer plants survived to produce flowers (Forest Service 2020, p. 12). Some experts believe that the dry conditions, compounded with increased browse pressure from large ungulates, contributed to the deterioration of habitat throughout the Sacramento Mountains checkerspot butterfly's range (Ryan et al. 2021, pers. comm.).

In 2021, the monsoon season in the Sacramento Mountains produced heavy precipitation and several flash-flood events (Hergert et al. 2022, unpaginated). While this precipitation allowed vegetation to temporarily recover, it also caused erosion in some meadow habitat (Hughes 2022, pers. comm.). Despite these large precipitation events during the summer months of 2021, the Sacramento Mountains remain in a moderate to severe drought (U.S. Drought Monitor, https://droughtmonitor.unl.edu/, accessed June 30, 2022) and impacts to the butterfly's habitat from climate change are likely to continue.

In summary, climate change adversely impacts the viability of the Sacramento Mountains checkerspot butterfly. All meadow units within the subspecies' range are experiencing impacts from climate change.

Invasive, nonnative plants have begun to encroach into meadow areas within the Lincoln National Forest. Other species of butterfly had become scarcer when nonnative plants appeared in suitable butterfly habitats (Hughes 2021a, pers. comm.). During the drought, Kentucky bluegrass ( Poa pratensis ) proliferated within meadow areas. This aggressive, nonnative plant, whose seeds are primarily windblown, can outcompete native wildflowers, such as New Mexico beardtongue. As invasive, nonnative plants begin to expand their influence, native plants, including host and nectar plants for butterflies, such as New Mexico beardtongue and orange sneezeweed, are likely to be outcompeted and become more scarce (Kennedy 2020, pers. comm.; 62 FR 2313, January 16, 1997).

In summary, invasive, nonnative plants can outcompete the native plants that Sacramento Mountains checkerspot butterflies and their larvae require. All meadow units within the subspecies' range are experiencing some level of impact from nonnative plants.

Fire is a natural part of the Sacramento Mountains ecosystem and would have historically maintained many of the ecosystem processes within the Sacramento Mountains checkerspot butterfly's range. Humans have largely suppressed wildfires over the past 150 years (Service et al. 2005, p. 21). Before human intervention, there would have been gradual ecosystem clines between meadows and forests. Grassland corridors or sparsely forested glades would have connected meadow areas. These habitat types would have allowed for the butterfly to pass through, thereby maintaining metapopulation dynamics. Fire exclusion and suppression have reduced the size of grasslands and meadows by allowing the encroachment of conifers, and these trends are projected to continue (Service et al. 2005, pp. 21-22). No significant wildfires have occurred in the butterfly's habitat since 1916 (Service et al. 2005, p. 21). Before active fire suppression, fire in the Sacramento Mountains occurred at intervals between 3 and 10 years (Forest Service 1998, p. 63). These frequent, cool, low-intensity, surface fires historically maintained a forest that was more open ( i.e., more non-forested patches of different size; more large, older trees; and fewer dense thickets of evergreen saplings). Such low-intensity fires are now rare events. A large fire can occur within the range of the subspecies; there have been at least nine large, hot, high-intensity wildfires (over 90,000 ac (34,000 ha)) in the Sacramento Mountains during the past 50 years (Forest Service 1998, p. 63). Trees and other woody vegetation have begun encroaching into suitable meadow habitats for the butterfly. Current forest conditions make the chances of a high-severity fire within the range of the butterfly increasingly likely (Service et al. 2005, p. 21).

It is likely that fire exclusion and historical cattle grazing have altered and increased the threat of wildfire in ponderosa pine ( Pinus ponderosa ) and mixed conifer forests in the semi-arid western interior forests, including New Mexico (Forest Service 1998, pp. 3, 63). Further, there has been a general increase in the dominance of woody plants, with a decrease in the herbaceous (non-woody) ground cover used by the butterfly (Service et al. 2005, pp. 32-33). These data indicate that the quality and quantity of the available butterfly habitat is decreasing rangewide. Therefore, we conclude that wildfire exclusion has substantially affected the subspecies and will likely continue to significantly degrade the quality and quantity of suitable habitat.

In summary, the altered fire regime can impact Sacramento Mountains checkerspot butterflies and their larvae. All meadow units within the subspecies' range are experiencing adverse impacts from altered fire regimes.

Our analysis of the current influences on the needs of the Sacramento Mountains checkerspot butterfly for long-term viability revealed there are several threats that pose the largest risk to viability: incompatible grazing, recreation, climate change, invasive and nonnative plants, and an altered wildfire regime. These influences reduce the availability of host plants and nectar sources, thereby reducing the quantity and quality of essential habitat for the subspecies, in addition to reducing its ecological and genetic diversity.

The current condition of the Sacramento Mountains checkerspot butterfly considers the risks to those populations that are currently occurring. In the current condition assessment report, for each population, we developed and assigned condition categories for two demographic factors and three habitat factors that are important for the viability of the Sacramento Mountains checkerspot butterfly. The condition scores for each habitat factor were then used to determine an overall condition of each population and meadow: high, moderate, low, very low, or extirpated.

Two populations of the Sacramento Mountains checkerspot butterfly remain in two meadows, Bailey Canyon and Pines Meadow Campground. Historically, the populations likely had greater connectivity, but today they are small and isolated due to the altered wildfire regime, which fostered a greater extent and density concentration of trees separating habitat meadows. Dispersal and colonization of extirpated locations is unlikely without human assistance. If butterflies have not been detected at any site once or more during the last 3 years, we consider that population to be extirpated. The two remaining populations are in very low condition in terms of demographic factors (adult density and larval density) (see table 1, below) and low condition in terms of overall meadow condition (see table 2, below). There have not been any observations of adults or larvae in the past 3 consecutive years in any of the other eight populations, and we therefore consider them to be demographically extirpated. Six of those eight populations have very low overall meadow condition, and two are considered extirpated for overall meadow condition because suitable habitat for the Sacramento Mountains checkerspot butterfly no longer exists there.

Bailey Canyon and Pines Meadow Campground are two adjacent meadows in the northwest part of the Sacramento Mountains checkerspot butterfly's range. During the 2020 survey season, approximately eight butterflies were detected in both meadows combined (Forest Service 2020, p. 3), and no larval tents were found (Forest Service 2020, pp. 1-3; Hughes 2020, pers. comm.). One individual observed dozens of Sacramento Mountains checkerspot butterflies in Bailey Canyon in 2020 (Banker 2022, pers. comm.). In 2021, surveys detected 23 adult butterflies and two larval tents (Hughes 2022, pers. comm.). Larvae from the two tents were taken into captivity by experienced biologists to establish a captive refugia (Williams 2021, pers. comm.). Although the 2021 field season represented an increase in population numbers, the adult and larval density levels remain at historical lows. We categorized resiliency for demographics as very low for both meadows, which were the only two meadows where butterflies were found. In addition, the overall meadow condition for these sites was low because there are few host plants and nectar sources present. Although nectar sources are present, they are not blooming or providing enough resources for the butterfly colonies. These meadows are within 800 meters of each other, which is within the dispersal distance of the butterfly, allowing for potential gene flow between populations.

Overall resiliency of Sacramento Mountains checkerspot butterfly populations is very low for demographic factors and low for habitat factors. This is because butterflies were only found in 2 of the 10 documented meadows, and both had very low recorded adult and larval abundance and density numbers. Additionally, these two meadows have poor habitat conditions (few host plants, nectar sources are abundant but provide insufficient resources, and some connectivity to other meadows), and the other eight meadows have either very low condition or are extirpated in terms of habitat factors.

We define a species' representation by assessing ecological and genetic diversity. As a narrow-range endemic, the entire range of the Sacramento Mountains checkerspot butterfly is approximately 32 square miles. However, suitable habitat within this range is limited to only about 2 square miles. Today, only 0.2 square miles might be occupied by the butterfly. This range contraction suggests that most of the original representation present within the subspecies has declined. The entirety of the butterfly's range represents one representation area because of the narrow range and limited ecological diversity. The extant populations are small and isolated in this single representation area with no current connectivity between those two populations. There is some connectivity between habitat patches, but there is no connectivity between extant populations. The occupied meadows are among spruce-fir forests, so some barriers limit the dispersal of individuals among the populations. Due to the limited habitat connectivity of populations, individual Sacramento Mountains checkerspot butterflies rarely, if ever, travel between populations. This effectively restricts the transfer of genetic material, thus limiting genetic diversity. There was likely greater habitat connectivity between populations in the past due to a more natural fire regime. Therefore, overall representation was always limited for this subspecies and has declined since 2010.

We define redundancy for the Sacramento Mountains checkerspot butterfly as multiple populations or metapopulations spread across the subspecies' range. There are only 2 extant Sacramento Mountains checkerspot butterfly populations located in adjacent meadows out of 10 documented populations within the single representation area. Given the historical distribution of the butterfly, it is likely that Sacramento Mountains checkerspot butterfly populations were more abundant within the Sacramento Mountains prior to European colonization of the area. Therefore, redundancy of the butterfly has declined over time. As a consequence of these current conditions, the viability of the Sacramento Mountains checkerspot butterfly primarily depends on maintaining and restoring the remaining isolated populations and reintroducing populations where feasible.

We incorporated the cumulative effects of the operative threats into our analysis when we characterized the current condition of the subspecies. Because our characterization of current condition considers not just the presence of the factors, but to what degree they collectively influence risk to the entire subspecies, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

Several habitat management actions might benefit the viability of the Sacramento Mountains checkerspot butterfly. To address the threat of overgrazing from large ungulates, the Lincoln National Forest erected exclosures to protect butterfly habitats from browsing. These efforts are currently focused within Bailey Canyon and Pines Meadow Campground, where adult butterflies are extant. Botanists involved with the Sacramento Mountains checkerspot butterfly working group have planted New Mexico beardtongue, orange sneezeweed, and other pollinator plants within exclosures for habitat restoration. These efforts will help ensure the individual needs of larvae and adult butterflies are met.

In 2021, the Institute for Applied Ecology, Forest Service, and other partners initiated a conservation project to address, enhance, and restore Sacramento Mountains checkerspot butterfly habitat. Biologists collected, cleaned, propagated, and mixed seeds containing New Mexico beardtongue and four nectar species, including orange sneezeweed. These plants and seeds were then planted into prepared sites within both grazing exclosure fences and protective tubing. Plants were watered by Forest Service staff. Survival rates of plantings were assessed by the Forest Service in late fall and determined to be high (greater than 90 percent). Funds were provided by the Forest Service and the Native Plant Society of New Mexico (Gisler 2022, pers. comm.).

The Forest Service has proposed that fire management aimed at reducing tree stocking within forested areas surrounding meadows might also help restore suitable habitat and connectivity throughout the range of the butterfly. Maintaining edge habitat and connectivity could greatly improve the butterfly's viability in the long term.

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

After evaluating threats to the subspecies and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we find that the Sacramento Mountains checkerspot butterfly has declined in abundance, density, and number of populations. Currently, there are only two extant populations where the subspecies exists in very low abundances and are isolated from one another. Furthermore, existing available habitat is reduced in quantity and quality relative to historical conditions. Our analysis revealed several threats that caused these declines and pose a meaningful risk to the viability of the subspecies. These threats are primarily related to habitat changes (Factor A) and include incompatible grazing, recreation, invasive and nonnative plants, and an altered wildfire regime, in addition to climate change (Factor E).

Over the past two decades, the Sacramento Mountains checkerspot butterfly has declined, both in abundance and in the area occupied (Forest Service 2020, p. 2). Because of increased populations of ungulates ( i.e., horses), grazing has increased in the subalpine meadows that support the Sacramento Mountains checkerspot butterfly, reducing the availability of host plants and nectar sources. The reduction in habitat quality and quantity is further exacerbated by the impact of drought associated with climate change. Additionally, the altered wildfire regime has decreased habitat connectivity, and now populations are more isolated from one another, with no dispersal among populations.

We considered sites with butterfly detections during the last 3 years to be extant for the purposes of this determination. Because adults or larvae have not been observed in the past 3 consecutive years in 8 of the 10 populations, we consider those 8 populations functionally extirpated. The two remaining populations are extremely small and isolated. The habitat at those sites is currently in very low condition due to a lack of both host plants for larvae and nectar sources for adults.

Historically, the subspecies, with more abundant and larger populations, would have been more resilient to stochastic events. Even if such events extirpated some populations, they could be recolonized over time by dispersal from nearby surviving populations. Because many of the areas of suitable habitat may be small and support small numbers of butterflies, local extirpation of these small populations is probable. A metapopulation's persistence depends on the combined dynamics of these local extirpations and the subsequent recolonization of these areas by dispersal (Murphy and Weiss 1988, pp. 192-194). Habitat loss and the altered wildfire regime have reduced the size of and connectivity between patches of suitable butterfly habitat. The reduction in the extent of meadows and other suitable non-forested areas has likely eliminated connectivity among some localities and may have increased the distance beyond the normal dispersal capability of the Sacramento Mountains checkerspot butterfly, making recolonization of some patches following local extirpation more difficult. In addition, habitat deterioration or reduction lowers the quality of remaining habitat by reducing the diversity of microclimates and food plants for larvae and adult butterflies (Murphy and Weiss 1988, p. 190).

Preliminary genetic evidence suggests little gene flow between these units (Ryan 2021, pers. comm.). Connectivity, which would promote resiliency and representation, has been lost. Eight populations are functionally extirpated, and the remaining two populations are in very low condition in terms of demographic factors, are in low condition in terms of habitat factors, and are at high risk of loss. The Sacramento Mountains checkerspot butterfly is extremely vulnerable to catastrophic events ( i.e., high-intensity, large wildfires) in suitable butterfly habitats.

In summary, much of the remaining suitable butterfly habitat, and therefore the long-term viability of the subspecies, is at risk due to the direct and indirect effects of incompatible grazing, recreation, climate change, invasive and nonnative plants, and an altered wildfire regime. The remaining populations are fragmented, isolated from one another, and unable to recolonize naturally. The populations are largely in a state of chronic ongoing, intensifying degradation due to habitat loss, which is exacerbated by climate change, limiting the subspecies' resiliency. The limited geographic range of the Sacramento Mountains checkerspot butterfly increases the threat of extinction for this subspecies given the expected continuing loss and degradation of suitable habitat and increased risks of extinction from catastrophic events, such as wildfire. Historically, with a larger range of interconnected populations, the butterfly would have been more resilient to stochastic events because even if some populations were extirpated by such events, they could be recolonized over time by dispersal from nearby surviving populations. This connectivity, which would have made for a sufficiently resilient subspecies overall, has been lost, and with two populations in very low demographic condition and low habitat condition, the remnant populations are at serious risk of imminent loss. A threatened status for the Sacramento Mountains checkerspot butterfly is not appropriate because the subspecies has already shown significant declines in current resiliency, redundancy, and representation due to the threats mentioned above.

Thus, after assessing the best available information, we determine that the Sacramento Mountains checkerspot butterfly is in danger of extinction 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. We have determined that the Sacramento Mountains checkerspot butterfly is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portion of its range. Because the Sacramento Mountains checkerspot butterfly warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020) ( Everson ), which vacated the provision of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (Final Policy) (79 FR 37578, July 1, 2014) providing that if the Services determine that a species is threatened throughout all of its range, the Services will not analyze whether the species is endangered in a significant portion of its range.

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

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

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

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

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

Once this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of New Mexico will be eligible for Federal funds to implement management actions that promote the protection or recovery of the Sacramento Mountains checkerspot butterfly. Information on our grant programs that are available to aid species recovery can be found at https://www.fws.gov/service/financial-assistance.

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

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

Federal agency actions within the species' habitat that may require conference, consultation, or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Forest Service.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any species listed as an endangered species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

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

(1) Possession, delivery, or movement, including interstate transport and import into or export from the United States, involving no commercial activity, of dead specimens of this taxon that were collected prior to the effective date of this final rule (see DATES , above);

(2) Activities authorized, funded, or carried out by Federal agencies ( e.g., grazing management, non-forested area management, private or commercial development, recreational trail or forest road development or use, road construction, prescribed burns, timber harvest, pesticide/herbicide application, or pipeline or utility line construction crossing suitable habitat) when such activity is conducted in accordance with a biological opinion from the Service on a proposed Federal action;

(3) Low-impact, infrequent, dispersed human activities on foot or horseback that do not degrade butterfly habitat ( e.g., bird watching, sightseeing, backpacking, hunting, photography, camping, hiking);

(4) Activities on private lands that do not result in the take of the Sacramento Mountains checkerspot butterfly, including those activities involving loss of habitat, such as normal landscape activities around a personal residence, proper grazing management, road construction that avoids butterfly habitat, and pesticide/herbicide application consistent with label restrictions; and

(5) Activities conducted under the terms of a valid permit issued by the Service pursuant to section 10(a)(1)(A) or 10(a)(1)(B) of the Act.

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

(1) Capture ( i.e., netting), survey, or collection of specimens of this taxon without a permit from the Service pursuant to section 10(a)(1)(A) of the Act;

(2) Incidental take of Sacramento Mountains checkerspot butterfly without a permit pursuant to section 10(a)(1)(B) of the Act;

(3) Sale or purchase of specimens of this taxon, except for properly documented antique specimens of this taxon at least 100 years old, as defined at section 10(h)(1) of the Act;

(4) Use of pesticides/herbicides that results in take of Sacramento Mountains checkerspot butterfly;

(5) Unauthorized release of biological control agents that attack any life stage of this taxon;

(6) Removal or destruction of the native food plants being used by Sacramento Mountains checkerspot butterfly, defined as Penstemon neomexicanus, Helenium hoopesii, or Valeriana edulis, within areas that are used by this taxon that results in harm to this butterfly; and

(7) Destruction or alteration of Sacramento Mountains checkerspot butterfly habitat by grading, leveling, plowing, mowing, burning, herbicide or pesticide spraying, incompatible grazing, or otherwise disturbing non-forested openings that result in the death of or injury to eggs, larvae, or adult Sacramento Mountains checkerspot butterflies through significant impairment of the taxon's essential breeding, foraging, sheltering, or other essential life functions.

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

Section 4(a)(3) of the Act and implementing regulations (50 CFR 424.12) require that we designate critical habitat at the time a species is determined to be an endangered or threatened species, to the maximum extent prudent and determinable. In the January 25, 2022, proposed listing rule (87 FR 3739), we determined that designation of critical habitat was prudent but not determinable because specific information needed to analyze the impacts of designation was lacking. We are still in the process of assessing this information. We plan to publish a proposed rule to designate critical habitat for the Sacramento Mountains checkerspot butterfly in the near future.

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 solicited information from the Mescalero Apache Nation within the range of the Sacramento Mountains checkerspot butterfly to inform the development of the current condition assessment report, but we did not receive a response. We also provided the Mescalero Apache Nation the opportunity to review a draft of the current condition assessment report and provide input prior to making our final determination on the status of the Sacramento Mountains checkerspot butterfly, but also did not receive a response. As we move forward with recovery planning and developing a proposed critical habitat designation for the Sacramento Mountains checkerspot butterfly, we will continue to coordinate with affected Tribes.

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

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

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