Correction

In the Federal Register of April 28, 2023, in FR Doc. 2023-08952 (88 FR 26221), make the following corrections:

(1) On page 26223 in the first column, under Section III, insert the following language after the first paragraph:

System for Award Management and Unique Entity Identifier.

(a) At the time of application, each applicant must have an active registration in the System for Award Management (SAM) before submitting its application in accordance with 2 CFR part 25. To register in SAM, entities will be required to obtain a Unique Entity Identifier (UEI). Instructions for obtaining the UEI are available at https://sam.gov/content/entity-registration.

(b) Applicants must maintain an active SAM registration, with current, accurate and complete information, at all times during which it has an active Federal award or an application under consideration by a Federal awarding agency.

(c) Applicant must ensure they complete the Financial Assistance General Representations and Certifications in SAM.

(d) Applicants must provide a valid UEI in its application, unless determined exempt under 2 CFR 25.110.

(e) The Agency will not make an award until the applicant has complied with all SAM requirements including providing the UEI. If an applicant has not fully complied with the requirements by the time the Agency is ready to make an award, the Agency may determine that the applicant is not qualified to receive a Federal award and use that determination as a basis for making a Federal award to another applicant.

(2) On page 26223 in the third column, correct the last paragraph to read as follows:

In compliance with Agency guidance to determine the lender's (participants) eligibility, the Agency is responsible for screening lenders in the Do Not Pay Portal for the following: (1) Credit Alert System (CAIVRS); (2) System for Award Management Entity Registration Records (SAMENT); (3) System for Award Management Exclusion Records-Restricted (SAM-EXCL-RES) and (4) Treasury Offset Program Debt Check (DBCK). If the lender is a non-profit, the Agency will also screen for Internal Revenue Service (IRS) Automatic Revocation of Exemption List (ARL). Screening will take place when the lender submits a complete application to the Agency. At the time of application, each applicant must have an active registration in the System for Award (SAM) before submitting its application in accordance with 2 CFR 25.200. To register in SAM, entities will be required to create a Unique Entity Identifier (UEI). Instructions for obtaining the UEI are available at https://sam.gov/content/entity-registration. Further information regarding SAM registration and the UEI can be found in this notice.

(3) On page 26224 in the first column, correct the first paragraph to read as follows:

Also, as part of the complete application package, the lender must provide a list of all the lender's principals (in accordance with the definition below) in the organization. This information will be used to screen the lender's principals in the Do Not Pay Portal for SAM-EXCL-RES at the application stage.

(4) On page 26225 in the first column, correct the second paragraph to read:

i. In accordance with 2 CFR 180.300, the lender must verify and provide documentation to the Agency that the borrowing entity and the borrowing entity's principals; and the borrower's management agent and the management agent's principals are not excluded or disqualified by:

A. Checking SAM Exclusions ( https://sam.gov ); or

B. Collecting a certification; or

C. Adding a clause or condition to the covered transaction.

(5) On page 26225 in the second column, delete the fifth bullet under (2) that reads:

“The lender must provide to the Agency a certification from the borrower that the borrower is not under any State or Federal order suspending or debarring participation in State or Federal loan programs and that the borrower is not delinquent on any nontax obligation to the United States.”

(6) On page 26226 in the third column, correct the first bullet to read as follows:

□ In accordance with 2 CFR 180.300, the lender must verify and provide documentation to the Agency that the property management entity and the property management entity's principals are not excluded or disqualified by:

a. Checking SAM Exclusions ( https://sam.gov ); or

b. Collecting a certification; or

c. Adding a clause or condition to the covered transaction.

(7) On page 26227, in the second column, in the fourth complete paragraph, revise the first line to add “ 3 ” after Priority and before the emdash to be consistent with numbering sequence.

As explained in the SBA's “Size Standards Methodology” white paper available at www.sba.gov/size and at www.regulations.gov (Docket ID: SBA-2018-0004), SBA reviews small business size standards and makes necessary adjustments to them for three reasons: (i) changes in industry structure and Federal market conditions under the Small Business Jobs Act of 2010 (Jobs Act), Public Law 111-240, section 1344, Sep. 27, 2010; (ii) inflation in accordance with 13 CFR 121.102(c); and (iii) adoption of the latest North American Industry Classification System (NAICS) revision by the Office of Management and Budget. Updating size standards based on inflation—in addition to updating size standards based on the latest industry and Federal contracting data under the five-year rolling review—not only satisfies the Jobs Act's mandate that SBA review all size standards every five years, but also is consistent with Executive Order 13563 on improving regulation and regulatory review.

Although SBA is required to assess the impact of inflation on its monetary-based size standards at least once every five years (67 FR 3041; January 23, 2002) (13 CFR 121.102(c)), SBA may modify the timing of its adjustments to size standards and consider adjustments even more frequently than five-year intervals based on the prevailing economic conditions and the important policy objective of maintaining the value of size standards in inflation-adjusted terms.

Accordingly, on November 17, 2022 (87 FR 69118), SBA published a joint final rule and interim final rule (IFR) that finalized, without change, SBA's July 2019 IFR (84 FR 34261; July 18, 2019) that adjusted industry-based ( i.e., receipts- and assets-based) and certain program-specific monetary size standards for inflation that occurred since the previous inflation adjustment in 2014 (79 FR 33647; June 12, 2014). SBA's November 2022 rule also contained interim final provisions to increase by 13.65 percent all industry-specific monetary small business size standards, including receipts-based size standards for 496 industries and nine subindustries ( i.e., “exceptions” in the SBA Table of Size Standards), as well as assets-based size standards for four industries.

SBA assessed the impact of the general price increases on size standards before the normal five-year review for inflation was due, which would have been in 2024, due to the prevailing economic conditions and the rise in the general level of prices since the last adjustment in 2019. SBA's adjustments to industry-based monetary size standards for inflation were in addition to the changes to monetary-based size standards adopted in March and June of 2022 as part of SBA's second five-year rolling review of size standards, 1 as required by section 1344 of the Jobs Act.

SBA's November 2022 rule also contained interim final provisions to adjust for inflation three program-specific receipts-based size standards. These include the size standards for sales or leases of government property which was increased from $8 million to $9 million in average annual receipts, the size standards for stockpile purchases which was increased from $67.5 million to $76.5 million in average annual receipts, and the alternative size standard based on tangible net worth and net income for the Small Business Investment Company (SBIC) program. Inflation adjustment increased tangible net worth from $19.5 million to $24 million and net income from $6.5 million to $8 million.

Besides adjustment of industry and program-based monetary size standards described above, the interim final provisions of the November 2022 rule also adjusted other monetary thresholds primarily used in the 8(a) Business Development (8(a) BD) program and the Economically Disadvantaged Women-Owned Small Business (EDWOSB) program to determine eligibility of applicants and current participants as economically disadvantaged business concerns. Specifically, SBA adjusted for inflation the following Economic disadvantage thresholds for the 8(a) BD and EDWOSB programs: Net worth from $750,000 to $850,000 (13 CFR 124.104(c)(2)), Income (adjusted gross income or AGI) from $350,000 to $400,000 (13 CFR 124.104(c)(3)), and total assets from $6 million to $6.5 million (13 CFR 124.104(c)(4)). SBA also adjusted the dollar limit for combined total 8(a) contracts from $100 million to $168.5 million (13 CFR 124.519(a)).

In this final rule, SBA is adopting, without change, the interim final provisions contained in the November 2022 rule as described above. SBA's adoption of the interim final provisions provides assurances to the public that the Agency is monitoring inflation to determine whether to adjust size standards within a reasonable period since its last inflation adjustment. SBA's adoption of the interim final provisions also ensures that the recently reviewed industry-based monetary size standards under the Jobs Act are up-to-date for accurately determining small business status, and restores the eligibility of businesses that may have lost their small business status due solely to price level increases rather than from increases in business activity. Given the current developments in the U.S. economy, SBA will continue to monitor the inflation and other economic indicators and their impacts on size standards and adjust size standards, as needed.

The November 2022 rule requested comments from the public on SBA's methodology of using the gross domestic product (GDP) price index for adjusting size standards for inflation and suggestions for alternative measures of inflation, on whether SBA should adjust employee-based size standards for labor productivity growth and technical changes similar to adjusting monetary-based size standards for inflation, and on changes to program-specific size standards. Below is a discussion of those comments and SBA's responses.

As required under 13 CFR 121.102(e), SBA advises readers that interested eligible parties may file a petition for reconsideration of a revised, modified, or established size standard at SBA's Office of Hearings and Appeals (OHA) within 30 calendar days after publication of this final rule in accordance with 15 U.S.C. 632(a)(9) and 13 CFR part 134, subpart I. You may reach OHA using the following contact information: by mail at U.S. Small Business Administration, Office of Hearings and Appeals, 409 Third St. SW, Eighth Floor, Washington, DC 20416, by email at ohafilings@sba.gov, by phone: 202-401-8200 TTY/TRS: 711, or by fax at (202) 205-7059.

SBA received nine comments on the November 2022 rule, of which eight comments were relevant. Each of the eight relevant comments expressed general support for SBA's interim changes to NAICS-based industry size standards. Four commenters petitioned SBA to make adjustments to certain monetary thresholds other than monetary-based size standards that the Agency adjusted for inflation in the November 2022 rule, of which one commenter also petitioned SBA to consider changing its methodology for adjusting size standards for inflation generally. All comments are available at the Federal rulemaking portal, www.regulations.gov, and are summarized and discussed below.

SBA received eight pertinent comments to the November 2022 rule that expressed general support for SBA's interim changes to industry-based monetary size standards. Commenters supported SBA's changes for several reasons, including the timeliness of SBA's adjustments given the recent increases in inflation and SBA's decision to issue the changes through an interim final rulemaking with requests for comments instead of a proposed rule. Commenters also expressed support for SBA's changes due to the expanded runway that it provides to small business in accessing SBA's financial assistance and contracting programs. One commenter explained that SBA's support of small business and timely recognition of the impacts of inflation on the size standards and ability of small business to compete is laudatory. The commenter expressed that issuance of the inflation adjustments as an interim final rule while still soliciting public comment correctly balances the need for urgency and public interest. Another comment from a national organization representing over 15,000 minority-owned businesses expressed that minority-owned business enterprises (MBEs) will benefit greatly from this new rule change as it will help bring economic equity in the Federal contracting process. Another comment from a national trade association supported SBA's changes on the grounds that the changes will allow more small businesses to be eligible or remain eligible for SBA assistance.

SBA agrees with commenters supporting the rule that there are various benefits from adopting the interim final changes to size standards contained in the November 2022 rule. The most significant benefits were described in the Regulatory Impact Analysis section of the November 2022 rule. The primary benefits include: (1) Some businesses that are above the current size standards may gain small business status under the higher, inflation-adjusted size standards, thereby enabling them to participate in Federal small business assistance programs; (2) Growing small businesses that are close to exceeding the current size standards will be able to retain their small business status under the higher size standards, thereby enabling them to continue their participation in the programs; and (3) Federal agencies will have a larger pool of small businesses from which to draw for their small business procurement programs.

SBA estimated that the changes adopted in the November 2022 rule enabled approximately 17,700 firms in industries and subindustries with receipts-based size standards and about 170 firms in industries with assets-based size standards, above SBA's size standards at the time, to gain small business status and become eligible for SBA programs, resulting in about $1.3 billion in additional small business Federal contract dollars to the newly-qualified businesses.

Moreover, SBA agrees with commenters regarding the importance of SBA's timely adjustments to size standards, including adjustments even more frequently than regular five year intervals, as required by 13 CFR 121.102(c)), based on the prevailing economic conditions. Accordingly, in response to the recent sustained increases in the general level of prices in the economy, SBA issued the November 2022 rule which contained interim final changes to adjust monetary size standards for inflation that has occurred since the last adjustment in July 2019 (84 FR 34261; July 18, 2019). In this final rule, SBA is adopting, without change, the interim final provisions contained in the November 2022 rule to ensure that small businesses can successfully compete for Federal contracting opportunities and access SBA's financial assistance programs.

While eight commenters to SBA's November 2022 rule expressed general support for SBA's changes to NAICS-based industry size standards, three commenters petitioned SBA to adjust other monetary thresholds not included in the rule, namely, the alternative size standard applicable to SBA's 7(a) and Certified Development Company (CDC)/504 loan programs (collectively “Business Loan programs”), and the sole source/direct awards thresholds applicable to SBA's 8(a) and other SBA programs. Of these three commenters, one commenter also petitioned SBA to adjust size standards for inflation on an industry-by-industry basis. SBA received one comment urging SBA to revise its calculation of net worth.

Regarding SBA's alternative size standard, a national trade association for Certified Development Companies (CDCs) recommended that SBA immediately adjust for inflation the statutory alternative size standard applicable to SBA's 7(a) and 504 loan programs, and include it in future inflation adjustments on a five-year schedule, but did not recommend specific thresholds for the alternative size standard.

Regarding the sole source thresholds applicable to SBA's 8(a) and other SBA programs, SBA received one comment from a business recommending that SBA increase the current $4.5 million threshold for sole source awards applicable to 8(a) contracts for services by a significant amount; however, the commenter did not specify what size level would constitute a “significant” increase, nor provided any data to support their position.

Another commenter urged SBA to adjust the sole source thresholds in line with the House-passed National Defense Authorization Act (NDAA) 2023  2 and proposed amendments to the Federal Contracting Fairness Act of 2022. 3 The commenter recommended that SBA increase the sole source thresholds as follows: $12,000,000 in the case of a contract opportunity assigned a NAICS code for research and development or related Product Services Codes (PSCs); $14,000,000 in the case of a contract opportunity assigned a NAICS code for manufacturing or if the small business concern partners with an institution of higher education described in section 371(a) of the Higher Education Act of 1965 (20 U.S.C. 1067q(a)); or $10,000,000 in the case of any other contract opportunity.

One commenter in this group also petitioned SBA to consider adjusting size standards for inflation on an industry-by-industry basis instead of applying a general price increase to all industries. The commenter argued that the general value applied to all industries doesn't account for market trends and the rising costs of technology tools, software, and program implementation in certain industries.

Another commenter urged SBA to revise its calculation of net worth by allowing applicants to subtract real estate debt from the value of their real estate assets in order to counter housing price inflation. The commenter expressed concern that housing price inflation may create paper gains for real estate assets that have significant debt liabilities that may force a firm to leave an SBA program.

Regarding the comment that SBA should evaluate and immediately adjust for inflation the alternative size standard applicable to SBA's 7(a) and 504 loan programs, SBA affirms its commitment to meet its statutory obligation under section 3(a)(5) of the Small Business Act to establish an appropriate alternative size standard using maximum tangible net worth and average net income for its Business Loan Programs. The Jobs Act established for applicants for the SBA's Business Loan Programs an interim alternative size standard of not more than $15 million in tangible net worth and not more than $5 million in the average net income after Federal income taxes (excluding any carry-over losses) of the applicant for the two full fiscal years before the date of the application and it provided that this interim statutory alternative size standard would remain in effect until such time as SBA has established a new permanent alternative size standard for the Business Loan Programs through rulemaking. 15 U.S.C. 632(a)(5). Prior to that, SBA had a lower permanent regulatory alternative size standard that applied to the 504 Loan Program, and temporarily applied to the 7(a) Loan Program for the period beginning on May 5, 2009, and ending on September 30, 2010, 13 CFR 120.301(b)(2). SBA is not reviewing the alternative size standard applicable to its Business Loan Programs under this final rule. However, SBA intends to issue in the near future a separate proposed rule to adjust for inflation the interim alternative size standards for 7(a) and CDC/504 programs and solicit feedback and public comments on a permanent alternative size standard for SBA's Business Loan Programs.

As part of this effort, on March 22, 2018, SBA issued an advanced notice of proposed rulemaking (ANPRM) to solicit comments and data for use in its forthcoming proposed rule (83 FR 12506). SBA looks forward to receiving public comments on its proposed revisions to the alternative size standard under the future proposed rule for the alternative size standard for SBA's Business Loan Programs.

Regarding the comments that SBA should adjust for inflation the sole source thresholds applicable to SBA's 8(a) and other SBA programs, SBA notes that 13 CFR 124.506(a)(1) establishes that the Federal Acquisition Regulatory Council (FAR Council) has the responsibility of adjusting each acquisition-related dollar threshold on October 1, of each year that is evenly divisible by five. Accordingly, on October 2, 2020, the Department of Defense (DoD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA), which constitute the FAR Council, issued a final rule adjusting for inflation the sole source thresholds for the 8(a), HUBZone, and Women Owned Small Business programs (85 FR 62485). Specifically, the FAR Council raised the following small business thresholds in 48 CFR part 19: the sole-source thresholds in the 8(a) program to $7.5 million for manufacturing contracts and $4.5 million for all other contracts (previously $7 million and $4 million, respectively) (19.805-1); the threshold to require a justification for a sole-source 8(a) award to $25 million (previously $22 million) (19.808-1), of which DoD applies a $100 million threshold for these justifications (219.808-1); the sole-source thresholds in the HUBZone program to $7.5 million for manufacturing contracts and $4.5 million for all other contracts (previously $7 million and $4 million, respectively) (19.1306); the sole-source threshold in the Small Disadvantaged Veteran Owned Small Business (SDVOSB) program to $7 million for manufacturing contracts (previously $6.5 million) (19.1406); and the sole-source thresholds in the Woman Owned Small Business (WOSB) program to $7 million for manufacturing contracts and $4.5 million for all other contracts (previously $6.5 million and $4 million, respectively) (19.1506). Thus, given the recent adjustments to these size standards for inflation and SBA's regulations at 13 CFR 124.506(a)(1) establishing that the FAR Council has the responsibility of adjusting acquisition-related dollar thresholds, in this final rule, SBA is not further adjusting the above sole source thresholds applicable to SBA programs. However, such adjustments may be made through a future proposed rulemaking.

Regarding the comment petitioning SBA to consider adjusting monetary-based size standards for inflation on an industry-by-industry basis instead of applying a general price increase to all industries, SBA notes that small business size standards are used to determine eligibility of businesses for a wide variety of SBA's and other Federal programs. The majority of businesses participating in those programs are engaged in multiple industries producing a wide range of goods and services. Therefore, it is important that SBA use a broad measure of inflation to adjust its size standards. SBA's preferred measure of inflation has consistently been the chain-type price index for the U.S. Gross Domestic Product (GDP price index), published by the Bureau of Economic Analysis (BEA) within the U.S. Department of Commerce on a quarterly basis as part of its National Income and Product Accounts (NIPA). In the SBA's 2014 IFR adjusting size standards for inflation (79 FR 33647; June 12, 2014), besides the GDP price index, SBA reviewed several alternative inflation measures published by the Federal Government (including the consumer price index, the personal consumption expenditures price index, the producer price index, and the employment cost index) for their appropriateness to use for adjusting SBA's size standards. Among all these indexes, SBA determined that the GDP price index is the most comprehensive measure to capture movements in the general price level in the economy and consequently the most appropriate measure of inflation for adjusting SBA's size standards. Thus, as in the previous inflation adjustments in 2014 and 2019, SBA decided to use the GDP price index to adjust industry-based monetary size standards for the November 2022 inflation adjustment.

Moreover, as discussed earlier in this rule, SBA recently concluded the second five-year review of size standards under the Jobs Act. Under the second five-year review, SBA evaluated all industry-based monetary size standards and adopted revisions to size standards where appropriate based on SBA's evaluation of industry and Federal contracting factors. The inflation adjustments to size standards adopted in this final rule are in addition to SBA's changes to size standards under the second five-year review of size standards.

SBA believes that its five-year comprehensive review of size standards under the Jobs Act is the most appropriate regulatory venue to evaluate and address industry-specific economic characteristics and recent Federal contracting trends that may support a size standard different from SBA's current size standard. As part of its review of size standards, SBA must ensure that small business definitions vary from industry to industry to reflect industry differences as required by the Small Business Act (15 U.S.C. 632(a)) (Act). To that end, as part of the comprehensive review of size standards, SBA evaluates industry structure at the 6-digit NAICS level, such as average firm size, startup costs and entry barriers, industry concentration, and distribution of firms by business size. SBA also evaluates Federal contracting trends ( i.e., small business share of Federal contract dollars relative to small business share of total industry's receipts) for industries with significant contracting activities ( i.e., industries averaging $20 million or more in Federal contracts annually). Based on its analysis of the above industry and Federal contracting factors, and after considering all comments submitted to SBA during the proposed rule stage, in March and June of 2022, as part of SBA's second five-year review of size standards, SBA issued a series of five final rules reviewing all industry-based monetary size standards as required under the Jobs Act. 4 Thus, while SBA is not including a comprehensive review of industry factors in this final rule, SBA believes that it has satisfied the commenter's petition to consider industry-specific factors in the evaluation of size standards under the recently completed, second five-year review of size standards.

Regarding the comment urging SBA to revise its calculation of net worth by excluding real estate debt from the calculation of net worth, SBA assumes that the commenter is referring to SBA's net worth calculation for determining economic disadvantage for purposes of assessing eligibility for participation in the 8(a) BD program. SBA notes that under the current regulations at 13 CFR 124.104(a), economically disadvantaged individuals are defined as those whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business who are not socially disadvantaged. SBA disagrees that real estate debt should be excluded from the calculation of net worth because such exclusions may allow individuals with access to substantial capital and credit opportunities, as demonstrated by their significant real estate debts, to qualify as economically disadvantaged. This would be counter to SBA's definition of an economically disadvantaged individual, which requires that individuals demonstrate diminished capital and credit opportunities.

Prior to the SBA's November 2022 rule, the net worth of an economically disadvantaged individual had to be less than $750,000. In addition, their Income (AGI) (13 CFR 124.104(c)(3)) had to be less than $350,000, and their Total Assets (13 CFR 124.104(c)(4)) less than $6 million. In the November 2022 rule, SBA increased these thresholds for inflation. Currently, the net worth of an economically disadvantaged individual must be less than $850,000 (13 CFR 124.104(c)(2)), Income (AGI) (13 CFR 124.104(c)(3)) must be less than $400,000, and Total Assets (13 CFR 124.104(c)(4)) less than $6.5 million. In determining net worth, SBA excludes the individual's equity in their primary personal residence. However, exclusions for net worth purposes are not exclusions for asset valuation or access to capital and credit purposes. SBA continues to believe that it is appropriate to determine economic disadvantage for purposes of the 8(a) BD program based on these factors, and thus, is not adjusting the methodology for calculating net worth in this final rule.

With due consideration of all public comments as discussed above, in this final rule, SBA is adopting the increases in all industry-specific monetary size standards for inflation, as published in the November 2022 rule. SBA is also adopting the adjustments for inflation to three program-specific receipts-based size standards contained in the November 2022 rule. These include sales or leases of Government property for which SBA is adopting $9 million in average annual receipts, stockpile purchases for which SBA is adopting $76.5 million in average annual receipts, and the alternative size standard based on tangible net worth and net income for the Small Business Investment Company (SBIC) program for which SBA is adopting $24 million of tangible net worth and $8 million of net income.

SBA also adopts the adjustments to monetary thresholds used in the 8(a) BD and the EDWOSB programs to determine eligibility of applicants and current participants as economically disadvantaged business concerns, as contained in the November 2022 rule. Specifically, SBA is adopting the following economic disadvantage thresholds for the 8(a) BD and EDWOSB programs: $850,000 as the threshold for Net worth (13 CFR 124.104(c)(2)), $400,000 as the threshold for Income (AGI) (13 CFR 124.104(c)(3)), and $6.5 million as the threshold for Total Assets (13 CFR 124.104(c)(4)). SBA is also adopting $168.5 million as the dollar limit for combined total 8(a) contracts (13 CFR 124.519).

Accordingly, SBA is issuing this final rule to adopt and finalize, without change, the interim final changes contained in the rule published on November 17, 2022 (87 FR 69118).

The Office of Management and Budget (OMB) has determined that this final rule is not a “significant regulatory action” for purposes of Executive Order 12866. OMB also determined that the November 2022 rule was not a “significant regulatory action” for purposes of Executive Order 12866. However, in order to help explain the need for this rule and its potential benefits and costs, SBA provided a Cost Benefit Analysis of the rule in the November 2022 rule, which is summarized below.

SBA's statutory mission is to aid and assist small businesses through a variety of financial, procurement, business development, and advocacy programs. To assist the intended beneficiaries of these programs effectively, SBA must establish distinct definitions of which businesses are deemed small businesses. The Small Business Act (15 U.S.C. 632(a)) (Act) delegates to the SBA Administrator the responsibility for establishing small business definitions. The Act also requires that small business definitions vary from industry to industry to reflect industry differences. SBA is required to assess the impact of inflation on its monetary-based size standards at least once every five years (67 FR 3041; January 23, 2002) (13 CFR 121.102(c)). This final rule adopts, without change, the interim final changes contained in the November 2022 rule.

The most significant benefit to businesses of SBA's adjustments to size standards for inflation finalized in this final rule were described in detail in the November 2022 rule. The size standards adopted by SBA at that time enabled businesses that exceeded size standards simply due to inflation-driven revenue growth to regain or maintain eligibility for Federal small business assistance programs. The changes also helped businesses about to exceed their size standards to retain small business eligibility for Federal programs for a longer period. These programs included SBA's financial assistance programs, economic injury disaster loans (EIDL), and Federal procurement programs intended for small businesses. Federal procurement programs provide targeted opportunities for small businesses under SBA's business development programs, such as 8(a) BD, Small Disadvantaged Businesses (SDB), small businesses located in Historically Underutilized Business Zones (HUBZone), WOSB, EDWOSB, and SDVOSB. Federal agencies may also use SBA's size standards for a variety of other regulatory and program purposes. These programs assist small businesses to become more knowledgeable, stable, and competitive.

Besides small business contracting opportunities and financial assistance, small businesses also benefited through reduced fees, less paperwork, and fewer compliance requirements that are available to small businesses through Federal agencies that use SBA's monetary-based size standards.

In the November 2022 rule, SBA estimated that the changes would enable approximately 17,713 firms in industries and subindustries with receipts-based size standards and about 170 firms in industries with assets-based size standards, above SBA's size standards, to gain small business status and become eligible for these programs. SBA estimated that this change would increase the small business share of total receipts in industries and subindustries with receipts-based size standards from 29 percent to 30 percent and the small business share of total assets in industries with assets-based size standards from 5.4 percent to 5.9 percent.

SBA also estimated that firms gaining small business status under the inflation adjusted size standards could receive $1.3 billion in additional small business Federal contract dollars. This represented an increase of about 1.7 percent over the baseline. Additionally, by allowing businesses above the size threshold to regain small business status and advanced small businesses close to size standards to prolong their small status for a longer period, the November 2022 rule expanded the pool of qualified small firms for Federal agencies to draw upon to meet their small business requirements.

Moreover, SBA estimated that about seven additional loans totaling about $4.1 million could be made to the newly defined small businesses under SBA's 7(a) and 504 Loan Programs under the adjusted industry-based size standards.

To the extent that those 17,883 additional small firms under receipts-based and assets-based size standards could become active in Federal procurement programs, SBA estimated in the November 2022 rule that the adjusted size standards may entail some additional administrative costs to the government as a result of more businesses being eligible for Federal small business programs. For example, there could be more firms seeking SBA's guaranteed loans, more firms eligible for enrollment in the Dynamic Small Business Search (DSBS) database or in certify.sba.gov, more firms seeking certification as 8(a) or HUBZone firms or qualifying for small business, WOSB, EDWOSB, SDVOSB, and SDB status, and more firms applying for SBA's 8(a) BD and all small business mentor-protégé programs.

One may surmise that an expanded pool of small businesses under higher size standards due to inflation adjustment might result in a higher number of small business size protests and additional processing costs to agencies. However, SBA's historical data on size protests shows that the number of size protests actually decreased after an increase in the number of businesses qualifying as small as a result of size standards revisions as part of the first five-year review of size standards. Specifically, on an annual basis, the number of size protests dropped from about 600 during fiscal years 2011-2013 (review of most receipts-based size standards was completed by the end of FY 2013) to about 500 during fiscal years 2018-2020. That represents a 17 percent decline.

Aside from taking time to register in the System for Award Management (SAM) to be eligible to participate in Federal contracting and update the SAM profile annually, SBA estimated that small businesses incur no direct costs to gain or retain their small business status under the inflation adjusted size standards. All businesses willing to do business with the Federal Government must register in SAM and update their SAM profiles annually, regardless of their size status. SBA believes that a vast majority of businesses that are willing to participate in Federal contracting are already registered in SAM and update their SAM profiles annually. It is important to point out that most business entities that are already registered in SAM will not be required to update their SAM profiles. However, it will be incumbent on registrants to review, and update as necessary, their profiles to ensure that they have the correct NAICS codes. SAM requires that registered companies review and update their profiles annually, and therefore, businesses will need to pay particular attention to the changes to determine if they might affect them. They will also have to verify, and update, if necessary, their Representations and Certifications in SAM. More importantly, this rule does not establish the new size standards for the very first time; rather it intends to modify the existing size standards by adjusting them for the inflation that has occurred since the last inflation adjustment in 2019.

In the November 2022 rule, SBA also described how, due to the expanded pool of small businesses, contracts may move from unrestricted competition to small business set-aside contracts, resulting in competition among fewer total bidders. However, any additional costs associated with fewer bidders are expected to be minor since, by law, procurements may be set aside for small businesses under the 8(a)/BD, HUBZone, WOSB, EDWOSB, or SDVOSB programs only if awards are expected to be made at fair and reasonable prices.

Costs may also be higher when full and open contracts are awarded to HUBZone businesses that receive price evaluation preferences. However, with agencies likely setting aside more contracts for small businesses in response to the availability of a larger pool of small businesses under the higher inflation-adjusted size standards, HUBZone firms might receive fewer full and open contracts, thereby resulting in some cost savings to agencies. However, such cost savings are likely to be minimal as only a small fraction of unrestricted contracts are awarded to HUBZone businesses.

An increase in the number of new applicants to SBA's economic disadvantage programs and an increase in the number of participants eligible for 8(a) sole source awards has similar costs for the programs and for the new applicants and current participants, as discussed in the previous paragraphs. The increase in the number of participants in the programs will not affect the SBA costs of providing services to these business concerns, because the administrative structure is already in place.

SBA's adoption of increases in the economic disadvantage (ED) eligibility thresholds through inflation adjustment support gaining eligibility of the new applicants which would otherwise be not approved and maintaining eligibility of the existing participants in the 8(a) BD and EDWOSB programs. The new applicants affected by inflation impacting the value of their net worth (NW), adjusted gross income (AGI), and total assets (TA) will be approved into these programs. The inflation adjusted thresholds would also help current SBA ED participants who are about to exceed their NW, AGI, or TA thresholds to retain ED eligibility for Federal programs for a longer period.

Internal data on applicants to the 8(a) BD program from fiscal years 2019-2021 showed that since the ED thresholds were increased for new applicants in mid-2020 ( see Table 7, Increases in ED Thresholds Adopted on July 15, 2020, in the November 2022 rule), the number of approvals increased by 3.2 percent, and the number of denials for economic-disadvantage reasons decreased by 36.8 percent. The same data also showed that since 2019, the applicants' average net worth increased by 50 percent, the average AGI by about 20 percent, and the average total assets by 40 percent.

SBA's inflation adjustment to the ED thresholds provides current program participants with a longer runway to maintain eligibility and allows SBA to approve new applicants to the ED programs who may have been ineligible due to the impacts of the current inflation rate. SBA believes that finalizing the inflation adjustment of the ED thresholds helps to preserve the real value of the current thresholds.

For the above reasons, SBA estimates that the added administrative costs associated with SBA's adopted changes will be de minimis because necessary mechanisms are already in place to handle these added requirements.

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the Congressional Review Act or CRA, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. SBA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the CRA cannot take effect until 60 days after it is published in the Federal Register . OMB's Office of Information and Regulatory Affairs has determined that this rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under the Regulatory Flexibility Act (RFA), this final rule may have a significant impact on a substantial number of small businesses in the industries and subindustries with monetary size standards. As described above, this rule may affect small businesses in those industries seeking Federal contracts, loans under SBA's 7(a), 504 and EIDL Programs, and assistance under other Federal small business programs.

Immediately below, SBA sets forth a final regulatory flexibility analysis (FRFA) of this final rule addressing the following questions: (1) What are the need for and objective of the rule?; (2) What are SBA's description and estimate of the number of small businesses to which the rule will apply?; (3) What are the projected reporting, record keeping, and other compliance requirements of the rule?; (4) What are the relevant Federal rules that may duplicate, overlap, or conflict with the rule?; and (5) What alternatives will allow the Agency to accomplish its regulatory objectives while minimizing the impact on small businesses?

As discussed in the supplemental information, the revision to the monetary-based size standards for inflation more appropriately defines small businesses. This final rule is a procedural step that merely finalizes the changes already in place since December 19, 2022 (the effective date of SBA's November 2022 rule), that restored small business eligibility in real terms to businesses that exceeded the size standard due to inflation-led revenue growth rather than due to increased business activity.

Section 3(a) of the Small Business Act (15 U.S.C. 632(a)) gives SBA the authority to establish and change size standards. Within its administrative discretion, SBA implemented a policy in its regulations to review the effect of inflation on size standards at least once every five years (13 CFR 121.102(c)) and make any changes as appropriate. A review of the latest data indicated that inflation had increased a sufficient amount since the 2019 adjustment to warrant another inflation adjustment to the monetary-based size standards. Adjusting size standards for inflation is also consistent with a statutory requirement to review all size standards and make adjustments to reflect current market conditions every five years under the Jobs Act.

Based on the 2017 Economic Census tabulations, in the November 2022 rule, SBA estimated that the changes would enable approximately 17,713 firms in industries and subindustries with receipts-based size standards and about 170 firms in industries with assets-based size standards, above SBA's size standards, to gain small business status and become eligible for these programs. SBA estimated that this change would increase the small business share of total receipts in industries and subindustries with receipts-based size standards from 29 percent to 30 percent and the small business share of total assets in industries with assets-based size standards from 5.4 percent to 5.9 percent. The size standards adopted in the November 2022 rule enabled businesses that have exceeded the size standards for their industries to regain small business status. It also helped advanced small businesses to retain their small business status, and associated benefits, for a longer period.

The inflation adjustment to size standards imposes no additional reporting or record keeping requirements on small businesses. However, qualifying for Federal procurement and a number of other programs requires that businesses register in the SAM database and certify in SAM that they are small at least once annually. Therefore, any newly-eligible small businesses opting to participate in those programs would have had to comply with SAM requirements. However, SBA estimates that there are no additional costs associated with SAM registration or certification. While changing size standards alters the access to SBA's programs that assist small businesses, it does not impose a regulatory burden because such actions on the part of SBA neither regulate nor control business behavior.

Under section 3(a)(2)(C) of the Small Business Act, 15 U.S.C. 632(a)(2)(c), Federal agencies must use SBA's size standards to define a small business, unless specifically authorized by statute to do otherwise. In 1995, SBA published in the Federal Register a list of statutory and regulatory size standards that identified the application of SBA's size standards as well as other size standards used by Federal agencies (60 FR 57982; November 24, 1995). SBA is not aware of any Federal rule that would duplicate or conflict with establishing size standards.

However, the Small Business Act and SBA's regulations allow Federal agencies to develop different size standards if they believe that SBA's size standards are not appropriate for their programs, with the approval of SBA's Administrator (13 CFR 121.903). The Regulatory Flexibility Act authorizes an Agency to establish an alternative small business definition for Regulatory Flexibility Analysis purposes, after consultation with the Office of Advocacy of the U.S. Small Business Administration (5 U.S.C. 601(3)).

By law, SBA is required to develop numerical size standards for establishing eligibility for Federal small business assistance programs. Other than varying size standards by industry and changing the size measures, no practical alternative exists to the systems of numerical size standards.

SBA's only other consideration was whether to adopt the size standards presented in the November 2022 rule with no further increase for the inflation. However, SBA believes that the 13.65 percent inflation increase since the previous inflation adjustment in July 2019 sufficiently affects the real value of the size standards to warrant applying an increase at this time. SBA also believes that its inflation adjustments to the dollar limit for combined total 8(a) contracts and the economic disadvantaged thresholds applicable to 8(a) BD and EDWOSB are appropriate, as well as the adjustments to three program-specific monetary size standards: namely, the size standards for sales or leases of government property, the size standards for stockpile purchases, and alternative size standard based on tangible net worth and net income for the Small Business Investment Company (SBIC) program.

E.O. 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. A description of the need for this regulatory action and benefits and costs associated with this action including possible distributional impacts that relate to Executive Order 13563 is included above in the Benefit-Cost Analysis under Executive Order 12866 and in greater detail in the November 2022 rule which adopted the size standards effective December 19, 2022. Additionally, section 6 of E.O. 13563 calls for retrospective analyses of existing rules.

SBA updated the Small Business Procurement Advisory Council (SBPAC) on its November 15, 2022, and December 13, 2022, meetings about upcoming rules on size standards, including inflation adjustment. SBA also presented a similar update to the small business audience at the Small Business Alliance of Government Contractors and at various other industry events.

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

For purposes of Executive Order 13132, SBA has determined that this final rule will not have substantial, direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, SBA has determined that this final rule has no federalism implications warranting preparation of a federalism assessment.

For the purpose of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA has determined that this final rule will not impose any new reporting or record keeping requirements.

Background

The current performance standards for radio altimeters (also known as radar altimeters) are based on the presumption that no occupancy of an adjacent radio frequency spectrum would cause interference with radio altimeters. During 2021, the radio frequency (RF) operating environment surrounding radio altimeters substantially changed when wireless telecommunication service providers began offering 5G C-Band services near the 4.2-4.4 GHz band. In both the U.S. and internationally, this band is allocated on a primary basis for aeronautical radionavigation service, which is used by aviation radio altimeters. The FAA subsequently determined that radio altimeters could not be relied upon to perform their intended function if they experience interference from 5G wireless broadband operations in the C-Band.

Deployment of the new 5G C-Band services prompted the FAA to address the risks posed by RF interference to radio altimeters. On December 7, 2021, the FAA issued airworthiness directive (AD) 2021-23-12  1 for transport and commuter category airplanes equipped with a radio altimeter and AD 2021-23-13  2 for helicopters equipped with a radio altimeter. AD 2021-23-12 and AD 2021-23-13 prohibit certain flight operations requiring radio altimeter data when flying in the presence of 5G C-Band interference as identified by Notices to Air Missions (NOTAMs). In response to AD 2021-23-12, the aviation industry developed a method to show compatibility with 5G emissions in the United States national airspace system for the initial 5G deployment, which was limited to 3.7-3.8 GHz, and the 5G spurious emissions in the radio altimeter band (4.2-4.4 GHz). The FAA accepted this method as support for proposals for alternative methods of compliance (AMOCs) with AD 2021-23-12 and AD 2021-23-13. These AMOCs used standardized assessment parameters, values, and methods to estimate an installed altimeter system protection radii or distance. Aircraft with an altimeter operating beyond this distance from all 5G base stations would not expect harmful effects from RF incompatibility and indeed could depend upon the radio altimeter system to perform fully its intended function. These AMOCs were based on interference thresholds of specific individual radio altimeter transceivers. That is, each transceiver was tested to benchmark their performance in the presence of out-of-band and in-band C-Band signals. 3 The thresholds were then modified and tailored to installation factors specific to the installed platform ( e.g., measured antenna gains and cable losses). These values were then used to determine the necessary mitigations to protect the airport airspace most critical for the safety of operations. The mitigations included actions by wireless providers as well as flight limitations imposed by the FAA for the airspace areas identified by NOTAM, unless operating under an approved AMOC.

The deployment of new 5G C-Band stations continues. Their signals are expected to cover most of the contiguous United States at transmission frequencies between 3.7-3.98 GHz. 4

On May 26, 2023, the FAA superseded AD 2021-23-12 with AD 2023-10-02. 5 The flight limitations imposed by AD 2023-10-02 depend on whether an airplane has a radio altimeter system that demonstrates the tolerances specified in paragraph (g)(1) of the AD using a method approved by the FAA ( i.e., whether the aircraft is a “radio altimeter tolerant airplane”). 6

On June 22, 2023, the FAA superseded AD 2021-23-13 with AD 2023-11-07. 7 The flight limitations imposed by AD 2023-11-07 depend on whether a rotorcraft has a radio altimeter system that demonstrates the tolerances specified in paragraph (g)(1) of the AD using a method approved by the FAA ( i.e., whether the aircraft is a “radio altimeter tolerant rotorcraft”).

The FAA published a notice of availability and request for comments on proposed guidance for demonstrating an aircraft is a “radio altimeter tolerant aircraft” in the Federal Register on May 8, 2023 (88 FR 29554). The public comment period for the notice closed on June 7, 2023.

The FAA received comments from eight organizations: Thales Group, Airlines for America (A4A), MHI RJ Aviation ULC, Dassault Aviation (Dassault), Embraer S.A. (Embraer), the Cargo Airline Association (CAA), Gulfstream Aerospace Corporation (Gulfstream), and the Aviation Coalition. Comments fell into broad categories to include requests regarding how to show compliance; suggestions to harmonize language between the policy and the newly published ADs; statements regarding 5G bandwidth, and recommendations on content, editing, and formatting. One commenter urged the FAA to withdraw the policy.

A copy of the FAA's disposition of the public comments received is also available at regulations.gov in Docket No. FAA-2023-0938.

The FAA received several comments regarding how to show compliance with the policy statement and with AD 2023-10-02 or AD 2023-11-07.

Thales Group asked if performance justifications submitted for a prior AD must be re-submitted as evidence to support compliance with AD 2023-10-02 or AD 2023-11-07. Performance justification evidence must be re-submitted to the FAA to show compliance. Performance justifications for prior ADs were approved by the FAA before the method in the policy statement was defined. Although the FAA expects that aircraft with AMOCs approved for prior ADs may be able to meet the definition of a “radio altimeter tolerant airplane” or “radio altimeter tolerant rotorcraft,” design approval holders (DAHs) or operators will need to provide the FAA with data showing explicitly that the aircraft meets the tolerances in paragraph (g)(1) of AD 2023-10-02 or AD 2023-11-07 before the FAA will approve the method they propose to use. However, the FAA has updated the policy statement to clarify that data previously submitted for AMOCs with AD 2021-23-12 or AD 2021-23-13 may be referenced to support the method in PS-AIR-600-39-01 without re-submitting the referenced documents themselves.

Gulfstream commented that the policy allows for the use of existing data and analysis, which manufacturers collected for AMOCs with AD 2021-23-12 or AD 2021-23-13, to demonstrate compliance with the new AD. The FAA acknowledges that while the use of existing data is supported, additional data and analysis is not precluded. The use of power spectral density (PSD) curves for compliance demonstration is different.

Gulfstream and CAA requested that the FAA identify the radio altimeter technologies that meet the AD requirements. Gulfstream stated the policy creates a duplicative effort and burden on the aviation community in that it asks for data the FAA already possesses based on prior AMOC approvals. CAA stated that the policy creates an undue burden on operators to coordinate with DAHs and radio altimeter manufacturers.

The FAA disagrees. The FAA approved AMOCs for AD 2021-23-12 and AD 2021-23-13 before the radio altimeter tolerant PSD curves were defined. Although the FAA expects that the aircraft with AMOCs approved for AD 2021-23-12 or AD 2021-23-13 may be able to meet the definition of “radio altimeter tolerant” aircraft, DAHs will need to provide the FAA with data showing explicitly that the aircraft meets the tolerances in AD 2023-10-02 or AD 2023-11-07 before the FAA will approve the method they propose to use. Additionally, the FAA does not maintain a list of tolerant radio altimeters; the determination of a radio altimeter tolerant aircraft must consider the installation details, which vary from aircraft to aircraft. However, the FAA has added guidance to the policy to assist with obtaining FAA approval expeditiously.

CAA requested the FAA accept requests for AMOCs for operators to continue to operate without restrictions after July 1, 2023, given the same level of safety could be achieved. Operators will not need an AMOC provided their aircraft meets the fundamental and spurious emissions PSD curve thresholds specified in AD 2023-10-02 and AD 2023-11-07. No flight restrictions are mandated by AD 2023-10-02 and AD 2023-11-07 for radio altimeter tolerant aircraft.

Dassault requested the FAA confirm whether bench tests performed by the transceiver manufacturer would be sufficient for substantiation without additional tests. The FAA partially agrees. Bench tests of multiple units of a given transceiver model; antenna patterns, both in-band and out-of-band; and an analysis of the installed system to determine the appropriate cable loss are all necessary for substantiation. A test of the system (transceiver, antenna(s), and cabling) when installed on the aircraft is not necessary.

The guidance for spurious emissions in the proposed policy statement was based on a spurious emission level. When the FAA issued AD 2023-10-02 and AD 2023-11-07, the FAA replaced the proposed fixed emission level with a spurious PSD tolerance curve.

Embraer, Dassault, and the Aviation Coalition requested the FAA revise numerous references in the policy from the spurious level to the spurious emissions PSD curve to be consistent with AD 2023-10-02 and AD 2023-22-07. The FAA agrees and has revised the policy statement accordingly.

The Aviation Coalition requested the FAA clarify whether actual 5G C-band transmissions will present a condition where cumulative 5G signaling bandwidths in excess of 100 MHz will be in practice after July 1, 2023. It commented that the cumulative impact of multiple 100 MHz bands is not fully characterized for existing altimeters. The Aviation Coalition further stated the current accepted practice reflects the use of 100 MHz 5G signaling bandwidth for the purposes of compatibility assessment between 5G and radio altimeters. The FAA does not expect cumulative 5G signaling bandwidths in excess of 100 MHz for a given frequency at any one location in practice, based on communication with the FCC.

The Aviation Coalition asked why the policy specifies an interference tolerance threshold (ITT) measurement since the superseding ADs establish a curve for fundamental tolerance thresholds. The commenter stated it should be sufficient for an applicant to test to the appropriate tolerance levels of the curve and show that the radio altimeter performance at those levels is not unacceptably degraded. The FAA agrees that compliance with the curve can be determined without necessarily determining the transceiver's performance limit. The FAA changed the policy to reflect an interference tolerance (IT) measurement instead of an ITT measurement and updated the definition accordingly.

Dassault requested the FAA add the exact 5G fundamental frequency bandwidth to the guidance. The FAA agrees and has revised the document accordingly.

The FAA agreed with multiple requests from Dassault and the Aviation Coalition for editorial and formatting changes and reorganization, and revised the proposed policy statement accordingly, including the following:

Dassault asked whether the performance criteria in the policy section only applies to the transceiver. The performance criteria applies to the installed radio altimeter system. The FAA notes that the equations include terms to characterize the performance of the entire system. The FAA has replaced four instances of “radio altimeter” with “radio altimeter system” to clarify.

The FAA disagreed with the Aviation Coalition's request to revise the language in paragraph 2.a regarding base stations. The statement is correct as written, as it is a factual definition of 5G base station and aircraft compatibility. For clarity, the FAA moved the statement to the policy section before section 1 as background information.

A4A requested the FAA withdraw the proposed policy because operators who are not DAHs do not have the data and information to show compliance with the methods in the policy without significant assistance from aircraft original equipment manufacturers (OEMs) and radio altimeter manufacturers. A4A stated this would be infeasible given the short compliance timeframe, as well as duplicative since the same data and information associated with aircraft type and radio altimeter technology combination will have already been submitted to the FAA by the DAH/OEM. Lastly, A4A stated the FAA does not have the appropriate resources to timely coordinate and evaluate every operator's submissions while simultaneously reviewing data submitted by the DAH/OEM. Alternatively, A4A requested that operators who are not DAHs be permitted to submit a letter of compliance to their principal avionics inspector, citing either an FAA-published list of compliant aircraft model/radio altimeter combinations or a list from the DAH/OEM.

The FAA disagrees with withdrawing the policy, as it provides guidance for obtaining FAA approval of a method showing compliance with AD 2023-10-02 and AD 2023-11-07. However, the FAA has added guidance to the policy to assist with obtaining FAA approval expeditiously.

The Aviation Coalition noted that language in the proposed policy referring to horizontal separation distance by wing span may be appropriate for airplanes, but not for rotorcraft. Because of other changes made to the policy statement (replacing the proposed spurious emissions level with a spurious PSD curve), the language noted by the commenter has been removed from the document. As a result, no change to the policy is necessary.

The Aviation Coalition requested that the FAA add the word “should” to several places throughout the policy statement, to be consistent with nature of the policy as a guidance document. The FAA disagrees as the specified language identifies how to use the guidance in this policy as a means of compliance. In some instances, the language specified by the commenter defines a certain value and therefore the addition of “should” would be inappropriate.

MHI RJ Aviation ULC requested the FAA clarify an apparent inconsistency between figure 1 in AD 2023-10-02 and AD 2023-11-07 and the section of the policy on 5G spurious tolerance. The FAA understands the commenter to be comparing the fundamental PSD curve in AD 2023-10-02 with guidance for spurious tolerance in the policy statement.

The FAA's policy statement provides guidance for operators and manufacturers to demonstrate an aircraft is a radio altimeter tolerant aircraft, as defined in AD 2023-10-02 and AD 2023-11-07.You may view the final policy statement, PS-AIR-600-39-01, Demonstration of Radio Altimeter Tolerant Aircraft, at regulations.gov in Docket No. FAA-2023-0938 or on the FAA's Dynamic Regulatory System website at drs.faa.gov.

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2021-16-18, Amendment 39-21681 (86 FR 60560, November 3, 2021) (AD 2021-16-18). AD 2021-16-18 applied to all Airbus SAS Model A330-201, A330-202, A330-203, A330-223, A330-223F, A330-243, A330-243F, A330-301, A330-302, A330-303, A330-321, A330-322, A330-323, A330-341, A330-342, A330-343, A330-841, A330-941, A340-211, A340-212, A340-213, A340-311, A340-312, A340-313, A340-541, and A340-642 airplanes. AD 2021-16-18 required repetitive inspections of certain fuel pumps for cavitation erosion, replacement if necessary, revision of the operator's existing MEL, and accomplishment of certain maintenance actions related to defueling and ground fuel transfer operations. The FAA issued AD 2021-16-18 to address fuel pump erosion caused by cavitation.

The NPRM published in the Federal Register on April 18, 2023 (88 FR 23589). The NPRM was prompted by AD 2022-0197, dated September 22, 2022, issued by EASA (EASA AD 2022-0197), which is the Technical Agent for the Member States of the European Union (also referred to as the MCAI). The MCAI states that new, more erosion resistant pumps have been developed to address the unsafe condition. The MCAI states there have been reports of fuel pumps showing cavitation erosion. This condition, if not detected and corrected, could result, in a case where the pump is running dry, in an ignition source in the fuel tank, which may result in a fuel tank explosion and consequent loss of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0924.

In the NPRM, the FAA proposed to retain the requirements of AD 2021-16-18 and require replacement of affected parts, which would terminate the repetitive inspections, as specified in EASA AD 2022-0197. The NPRM also proposed to prohibit the installation of certain affected parts. The FAA is issuing this AD to address the unsafe condition on these products.

Note 4 of EASA AD 2022-0197 refers to EASA AD 2015-0194. EASA AD 2015-0194 corresponds to FAA AD 2016-20-10, Amendment 39-18676 (81 FR 71593, October 18, 2016) (AD 2016-20-10). AD 2016-20-10 requires the replacement of fuel pumps that have part number (P/N) 568-1-28300-001, 568-1-28300-002, 568-1-28300-100, or 568-1-28300-101 with a pump having a part number other than those part numbers. However, operators should be aware that this final rule prohibits installation of P/N 568-1-28300-103 as of the effective date of this AD.

AD 2016-20-10 also requires the replacement of P/N 568-1-28300-101 within 72 months or 96 months after November 22, 2016 (the effective date of AD 2016-20-10), depending on the configuration of the installed fuel pumps. Paragraph (5) of EASA AD 2022-0197 specifies to replace P/N 568-1-28300-101 at location A within 5 years after the effective date of that AD. Paragraph (6) of EASA AD 2022-0197 specifies to replace P/N 568-1-28300-101 at location B within 7 years after the effective date of that AD. These new compliance times do not apply to those affected by AD 2016-20-10. Therefore, the FAA has clarified the compliance time in paragraph (h)(10) of this AD.

The FAA received comments from Air line Pilots Association, International (ALPA), who supported the NPRM without change.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2022-0197 specifies procedures for repetitive inspections of all affected parts; replacement of affected parts if necessary; replacement of certain part-numbered affected parts, which allows a terminating action for the repetitive inspections; updating of the applicable Master Minimum Equipment List (MMEL), and certain maintenance actions related to defueling and ground fuel transfer operations. EASA AD 2022-0197 also prohibits certain affected parts from being installed.

The FAA also reviewed Eaton Service Bulletin 8810-28-06, Revision 2, dated March 1, 2019, which defines erosion cases and breakthrough.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 112 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

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

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Survitec Group Limited (RFD Beaufort Ltd.) Type 102 Mk 3, 102 Mk 4, and 105 Mk 1 life jackets. The NPRM published in the Federal Register on April 10, 2023 (88 FR 21117). The NPRM was prompted by AD G-2022-0009, dated April 21, 2022 (referred to after this as the MCAI), issued by The Civil Aviation Authority (CAA), which is the aviation authority for the United Kingdom (U.K.) (U.K. CAA AD G-2022-0009). The MCAI states Type 102 Mk 3 and Type 102 Mk 4 life jackets are designed for use by an adult or child. Type 105 Mk 1 life jackets are designed for use by an infant. Each is packed in a clear polyvinyl chloride (PVC) valise, which is marked ADULT/CHILD, CREW, or INFANT. Due to differences in parameters such as neck aperture and buoyancy, an infant life jacket cannot be used by an adult or child; likewise, an adult/child life jacket cannot be used by an infant. The MCAI states that Survitec has found that some life jackets were packed in the wrong valise. This could cause incorrect life jackets to be provided for passengers onboard an aircraft.

In the NPRM, the FAA proposed to require an inspection for a discrepancy (mismatch of the valise/container description and life jacket type) of life jackets and, if necessary, replacement of the life jacket. The NPRM also proposed to limit the installation of affected parts under certain conditions. The FAA is issuing this AD to address incorrectly labeled life jackets, which could, in the event of a water landing or evacuation, result in the unavailability of a life jacket with correct flotation, and possible drowning.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0666.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Survitec [RFD] Alert Service Bulletin 25-207-A, Version 1, dated November 24, 2021. This service information specifies procedures for specifies procedures for a general visual inspection for a discrepancy (mismatch of valise/container description and life jacket type) of affected life jackets, reporting of all inspection results to Survitec, and if a discrepancy is found, replacement of affected life jackets. (This service information is identified throughout as “Survitec,” while “RFD” is identified on only the first page of the document. Although both “Survitec” and “RFD” are current company names, the service information applies to RFD life jackets.) This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 4 life jackets installed on, but not limited to, aircraft of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition action that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need this on-condition action:

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

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

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

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model CL-600-2B16 (604 Variant) airplanes. The NPRM published in the Federal Register on January 30, 2023 (88 FR 5819). The NPRM was prompted by AD CF-2022-34, dated June 20, 2022, issued by Transport Canada, which is the aviation authority for Canada (referred to after this as the MCAI). The MCAI states oxygen leaks were caused by cracked, brittle, or broken oxygen hoses that were found during scheduled maintenance tests of the airplane oxygen system. A leak in the oxygen system may result in failure to provide oxygen to passengers and crew and result in an oxygen-enriched atmosphere creating a fire risk on the airplane. See the MCAI for additional background information.

In the NPRM, the FAA proposed to require replacing oxygen system hoses having any part number in the O2C20T1 and O2C20T14 series and to prohibit installation of affected oxygen hoses. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0025.

The FAA received comments from one commenter, NetJets. The following presents the comments received on the NPRM and the FAA's response to each comment.

The commenter noted that paragraph (h)(2) of the proposed AD referenced a test specified in paragraph (h)(2) of the proposed AD, but the test was specified in paragraph (h)(1) of the proposed AD. The commenter suggested the FAA revise paragraph (h)(2) of the proposed AD to read, “If, during a test specified in paragraph (h)(1) of this AD. . . .”

The FAA agrees and has revised paragraph (h)(2) of this AD.

The commenter stated that the compliance time specified in paragraph (g)(2) of the proposed AD, which reads, “For airplanes having, as of the effective date of this AD, more than 6 years from the completion of the interior modification specified in STC T02355NY: Within 7 months after the effective date of this AD,” does not consider the current supply chain issues and may cause undue hardship for owners/operators with multiple aircraft in its fleet. The commenter suggested that if parts are not available at the replacement time specified, there should be an alternative method to extend the replacement time for those aircraft.

The FAA disagrees. The FAA determined that the compliance time in paragraph (g)(2) of this AD allows ample time to obtain replacement parts. The FAA has not changed this AD as a result of this comment.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Bombardier Service Bulletin 605-35-006, Revision 01, dated January 28, 2022. This service information specifies procedures for replacing oxygen system hoses having any part number in the O2C20T1 and O2C20T14 series.

The FAA also reviewed Bombardier Service Bulletin 650-35-002, Revision 01, dated January 28, 2022. This service information specifies procedures for replacing oxygen system hoses having any part number in the O2C20T1 series. This service information also specifies optional mitigating actions for certain airplanes (repetitive testing until affected parts are replaced).

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 42 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any optional mitigating actions. The FAA has no way of determining the number of aircraft that might need this on-condition action:

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

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

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

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all BAE Systems (Operations) Limited Model 4101 airplanes. The NPRM published in the Federal Register on April 14, 2023 (88 FR 22920). The NPRM was prompted by AD G-2022-0019, dated October 31, 2022, issued by The Civil Aviation Authority (CAA), which is the aviation authority for the United Kingdom (U.K.) (referred to after this as the MCAI). The MCAI states that in-service cracking occurred on the Jetstream 41 passenger door edge member, seal carrier, and inner skin, adjacent to the roller guide bracket. BAE Systems (Operations) Limited reviewed the fatigue test data and existing inspection requirements, and concluded a new inspection is needed to address this potential unsafe condition.

In the NPRM, the FAA proposed to require a one-time inspection of the external visible surface of the inner skin, door edge member, and seal carrier adjacent to the roller bracket attachment brackets; and the inner skin, door edge member, and seal carrier at the roller bracket attachment bore, and repair if necessary. The FAA is issuing this AD to address undetected cracking of the passenger door. The unsafe condition, if not addressed, could result in a partial failure of the passenger door, and consequent reduced structural integrity of the passenger door.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0929.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed BAe JETSTREAM Series 4100 Service Bulletin J41-52-065, Revision 1, dated June 8, 2022. This service information specifies procedures for a one-time eddy current inspection of the external visible surface of the inner skin, door edge member, and seal carrier adjacent to the roller bracket attachment brackets for cracking; a one-time eddy current inspection of the inner skin, door edge member, and seal carrier at the roller bracket attachment bores for cracking; and repair.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 12 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition actions specified in this AD.

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

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

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

Background

The Entity List (supplement no. 4 to part 744 of the EAR (15 CFR parts 730 through 774)) identifies entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entities have been involved, are involved, or pose a significant risk of being or becoming involved in activities contrary to the national security or foreign policy interests of the United States, pursuant to § 744.11(b). The EAR impose additional license requirements on, and limit the availability of, most license exceptions for exports, reexports, and transfers (in-country) when a listed entity is a party to the transaction. The license review policy for each listed entity is identified in the “License Review Policy” column on the Entity List, and the impact on the availability of license exceptions is described in the relevant Federal Register document that added the entity to the Entity List. The Bureau of Industry and Security (BIS) places entities on the Entity List pursuant to parts 744 (Control Policy: End-User and End-Use Based) and 746 (Embargoes and Other Special Controls) of the EAR.

The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and makes all decisions to remove or modify an entry by unanimous vote.

The ERC determined to add Intellexa S.A., under the destination of Greece, Cytrox Holdings Zrt., under the destination of Hungary, Intellexa Limited, under the destination of Ireland, and Cytrox AD, under the destination of North Macedonia, to the Entity List for trafficking in cyber exploits used to gain access to information systems, thereby threatening the privacy and security of individuals and organizations worldwide. This activity is contrary to U.S. national security and foreign policy interests under § 744.11 of the EAR. For these four entities, BIS imposes a license requirement for all items subject to the EAR and will review license applications under a presumption of denial.

• Intellexa S.A.

• Cytrox Holdings Zrt.

• Intellexa Limited.

• Cytrox AD.

For the changes being made in this final rule, shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on July 18, 2023, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) before August 17, 2023. Any such items not actually exported, reexported or transferred (in-country) before midnight, on August 17, 2023, require a license in accordance with this final rule.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

1. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves an information collection approved by OMB under control number 0694-0088, Simplified Network Application Processing System. BIS does not anticipate a change to the burden hours associated with this collection as a result of this rule. Information regarding the collection, including all supporting materials, can be accessed at https://www.reginfo.gov/public/do/PRAMain.

3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to section 1762 of the Export Control Reform Act of 2018, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:

In FR Doc. 2023-04364, appearing on page 13692 in the Federal Register of Monday, March 6, 2023 (88 FR 13692), the following correction is made:

This document of the Drug Enforcement Administration was signed on July 5, 2023, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

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 final 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 we must establish this special local regulation by July 23, 2023.

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 regulation would be impracticable.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041. The Captain of the Port Detroit (COTP) has determined that potential hazards associated with the Ironman 70.3 Ohio Triathlon on July 23, 2023, will be a safety concern within 400 yards of the Dock Channel from the Jackson Street Pier to the Shelby Street Boat Launch for five and a half hours. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters near the Jackson St. Pier, Sandusky, OH.

This rule establishes a special local regulation from 4:30 a.m. through 10 a.m. on July 23, 2023. In light of the aforementioned hazards, the COTP has determined that a special local regulation is necessary to protect spectators, vessels, and participants. The special local regulation will encompass the following waterway: all U.S. navigable waters of Lake Erie within a 400 yard radius of the dock channel in Sandusky Bay in Sandusky, OH, between the Jackson Street Pier and the Shelby Street Boat Launch. The COTP or his designated on-scene representative will notify the public of the enforcement of this rule by all appropriate means, including a Broadcast Notice to Mariners.

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, duration and time-of-day of the special local regulation. Vessel traffic will not be able to safely transit around this regulated area which would impact a small designated area of Sandusky Bay for a short duration, during the morning when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek 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 area may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This special local regulation lasts five and one half hours that will prohibit entry within 400 yard radius of the Dock Channel in Sandusky Bay, between the Jackson Street Pier and the Shelby Street Boat Launch. It is categorically excluded from further review under paragraph L[61] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Corpus Christi 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. The Coast Guard must establish these security zones by July 10, 2023 to ensure security of these vessels and lacks sufficient time to provide a reasonable comment period and then 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 provide for the security of these vessels.

The Coast Guard may issue security zone regulations under authority in 46 U.S.C. 70051 and 70124. The Captain of the Port Sector Corpus Christi (COTP) has determined that potential hazards associated with the transit of the Motor Vessel (M/V) IRENE A, M/V CELSIUS CAROLINA and M/V ADRIANO KNUTSEN, when loaded, will be a security concern within a 500-yard radius of each vessel. This rule is needed to provide for the safety and security of the vessels, their cargo, and surrounding waterway from terrorist acts, sabotage or other subversive acts, accidents, or other events of a similar nature while they are transiting within Corpus Christi, TX, from July 10, 2023 through July 25, 2023.

The Coast Guard is establishing three 500-yard radius temporary moving security zones around M/V IRENE A, M/V CELSIUS CAROLINA and M/V ADRIANO KNUTSEN. The vessel names will be clearly marked on the port, starboard, and stern. The zones for the vessels will be enforced from July 10, 2023, through July 25, 2023. The duration of the zones are intended to protect the vessels and cargo and surrounding waterway from terrorist acts, sabotage or other subversive acts, accidents, or other events of a similar nature. No vessel or person will be permitted to enter the security zones without obtaining permission from the COTP or a designated representative.

Entry into these security zones is prohibited unless authorized by the COTP or a designated representative, who will be on scene to enforce the security zone. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of USCG Sector Corpus Christi. Persons or vessels desiring to enter or pass through each zone must request permission from the COTP or a designated representative on VHF-FM channel 16 or by telephone at 361-939-0450. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate for the enforcement times and dates for each security zone.

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, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, duration, and location of the security zones. This rule will impact a small, designated area of 500-yards around the moving vessels in the Corpus Christi Ship Channel and the La Quinta Channel as the vessels transit the channel over a seven day period. Moreover, the rule allows vessels to seek permission to enter the zones.

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 security zones 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 moving security zones lasting for the duration of time that the M/V IRENE A, M/V CELSIUS CAROLINA and M/V ADRIANO KNUTSEN are within the Corpus Christi Ship Channel and La Quinta Channel while loaded with cargo. It will prohibit entry within a 500-yard radius of M/V IRENE A, M/V CELSIUS CAROLINA and M/V ADRIANO KNUTSEN while the vessels are transiting loaded within Corpus Christi Ship Channel and La Quinta Channel. It is categorically excluded from further review under L60(a) in Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

I. Executive Summary A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

EPA is finalizing several tolerance actions that the Agency determined were necessary or appropriate during the registration review of several pesticide active ingredients. A “tolerance” represents the maximum level for residues of pesticide chemicals legally allowed in or on raw agricultural commodities and processed foods. Under the Federal Food, Drug, and Cosmetic Act (FFDCA), residues of a pesticide chemical that are not covered by a tolerance or exemption from the requirement of a tolerance render food adulterated and may not be distributed in interstate commerce. See 21 U.S.C. 331, 342, 346a(1).

This rule finalizes actions that were proposed in 2017 (82 FR 42531, September 8, 2017 (FRL-9963-03)), with a few exceptions discussed in more detail in Unit III. During registration review, EPA reviews all aspects of a pesticide case, including existing tolerances, to ensure that the pesticide continues to meet the standard for registration in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq., and that the pesticide's tolerances meet the safety standard of the FFDCA, 21 U.S.C. 346a. Specifically, as discussed in more detail in Unit III., EPA is finalizing the following actions:

• Revoking certain tolerances for aluminum tris ( O -ethylphosphonate), carbon disulfide, cyromazine, dichlobenil, oxydemeton-methyl, propachlor, and thiodicarb, and a tolerance exemption for d -limonene;

• Modifying certain tolerances for aluminum tris ( O -ethylphosphonate), cyromazine, and sulfentrazone;

• Establishing new tolerances for aluminum tris ( O -ethylphosphonate), cyromazine, and dichlobenil, and new tolerance exemptions for d -limonene and tartrazine;

• Revising the tolerance expressions for p -chlorophenoxyacetic acid and dichlobenil;

• Removing expired tolerances for disulfoton; and

• Correcting the listing of a tolerance for thiacloprid.

The tolerance actions contained in this final rule implement EPA decisions under FIFRA section 3(g), 7 U.S.C. 136a(g), which requires EPA to periodically review all registered pesticides and determine if those pesticides continue to meet the standard for registration under FIFRA. See also 40 CFR 155.40(a).

Under FFDCA section 408(e), 21 U.S.C. 346a(e), EPA may establish, modify, or revoke tolerances or exemptions from the requirement of a tolerance after providing an opportunity for public comment, which EPA has done here. FFDCA section 408(b) authorizes EPA to establish a tolerance if the Agency determines that the tolerance is safe; FFDCA section 408(c) authorizes EPA to establish an exemption from the requirement of a tolerance if the Agency determines that the exemption is safe. See 21 U.S.C. 346a(b) and (c). If EPA determines that a tolerance or exemption is not safe, EPA must modify or revoke that tolerance or exemption. FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” See 21 U.S.C. 346a(b)(2)(A)(ii), (c)(2)(A)(ii). This includes exposure through drinking water and in residential settings but does not include occupational exposure. FFDCA section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue[s.]” See 21 U.S.C. 346a(b)(2)(C). FFDCA section 408(b)(2)(D) contains several factors EPA must consider when making determinations about establishing, modifying, or revoking tolerances. See 21 U.S.C. 346a(b)(2)(D). FFDCA section 408(c)(2)(B) requires EPA, when making determinations about exemptions, to take into account, among other things, the considerations set forth in FFDCA section 408(b)(2)(C) and (D). See 21 U.S.C. 346a(c)(2)(B).

Consistent with its obligations under FIFRA section 3(g) and FFDCA section 408, EPA has reviewed the available scientific data and other relevant information and determined it is appropriate to take the tolerance actions in this document.

This final rule is effective upon publication in the Federal Register . In addition, for certain tolerances being revoked or decreased, the Agency is establishing an expiration date that is six months from the date of publication in the Federal Register to allow a reasonable interval for producers in exporting members of the World Trade Organization's (WTO's) Sanitary and Phytosanitary (SPS) Measures Agreement to adapt to the requirements.

Any commodities listed in this final rule treated with the pesticides subject to this final rule, and in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(l)(5), which specifies that any residues of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the U.S. Food and Drug Administration that:

1. The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA, and

2. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from tolerance. Evidence to show that food was lawfully treated may include records that verify the dates when the pesticide was applied to such food.

When establishing a tolerance for residues of a pesticide, EPA must determine whether the Codex Alimentarius Commission has established a Maximum Residue Limit (MRL) for that pesticide. See 21 U.S.C. 346a(b)(4). Codex is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. As part of registration review, EPA has considered Codex MRLs for each of the pesticides in this rulemaking and is harmonizing U.S. tolerances with those MRLs where appropriate. EPA may establish a tolerance that differs from a Codex MRL, provided that it explains the reasons for departing from the Codex level. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of the individual human health risk assessments that support the pesticide registration review cases for the tolerance actions identified in this final rule, and EPA's reasons for departing from the Codex level is discussed in Unit III. where applicable.

In 2017, EPA proposed to take several tolerance actions that the Agency determined were necessary or appropriate during the registration review of several pesticide active ingredients (82 FR 42531, September 8, 2017 (FRL-9963-03)). In that proposed rule, EPA proposed an effective date 6 months after the date of publication of the final rule in the Federal Register to allow a reasonable interval for producers in exporting members of the WTO's SPS Measures Agreement to adapt to the requirements of a final rule. EPA also proposed expiration dates for certain tolerances being revoked. At the time, the Agency believed that existing stocks of pesticide products labeled for the uses associated with the tolerances identified for revocation had been or would soon be completely exhausted and that treated commodities had cleared or would soon clear the channels of trade. As noted in Unit II.B., EPA did not receive any comments regarding existing stocks or whether the effective date or proposed expiration dates allow sufficient time for treated commodities to clear the channels of trade.

EPA received two comments on the proposed rule. This unit summarizes the comments and provides EPA's response.

1. Comment. Bayer CropScience (BCS) questioned whether the tolerance level for aluminum tris ( O -ethylphosphonate) in or on caneberry subgroup 13-07A, proposed to be established at 0.05 parts per million (ppm), should be 0.1 ppm because the Canadian MRL is currently 0.1 ppm.

EPA response. EPA's proposal to establish the caneberry subgroup 13-07A tolerance for aluminum tris ( O -ethylphosphonate) at 0.05 ppm to harmonize with Canada's MRL of 0.05 ppm, preceded the increase of the aforementioned Canadian MRL to 0.1 ppm by Health Canada's Pest Management Regulatory Agency (PMRA). EPA has determined that a 0.1 ppm level for the caneberry subgroup 13-07A tolerance for aluminum tris ( O -ethylphosphonate) is safe in a risk assessment memorandum dated September 27, 2021. Consequently, EPA is establishing a tolerance in 40 CFR 180.415(a) for aluminum tris ( O -ethylphosphonate) residues in or on caneberry subgroup 13-07A at 0.1 ppm to harmonize with the Canadian MRL.

2. Comment. An anonymous commentor mentioned support for the proposed rule if it tightened regulations on pesticides and opposition if it did not.

EPA response. Section 408 of the FFDCA authorizes EPA to establish tolerances for pesticide chemical residues if those tolerances are safe and to revoke tolerances if they are not. This commentor has provided no information to support a conclusion that tolerances are either safe or not safe.

In this final rule, the Agency is finalizing the tolerance actions as described in this unit.

EPA is finalizing its proposal to remove the tolerances for disulfoton, which have all expired.

EPA is finalizing its proposal to revise the tolerance expression for p -chlorophenoxyacetic acid to remove the p -chlorophenol metabolite and to describe more clearly the scope or coverage of the tolerance and the method for measuring compliance.

During registration review, EPA assessed the risks from exposure to p -chlorophenoxyacetic acid, taking into consideration all reliable data on toxicity and exposure, including for infants and children. Based on the supporting risk assessments and registration review documents, which demonstrate that the aggregate exposure is below the Agency's level of concern, EPA concludes there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to p -chlorophenoxyacetic acid residues. Thus, EPA has determined that the tolerances for residues of p -chlorophenoxyacetic acid are safe. Adequate enforcement methodology as described in the Food and Drug Administration's Pesticide Analytical Manual, Volume 2, is available to enforce the tolerance expression. For further details, see 4-Chlorophenoxyacetic acid. Human Health Risk Assessment in Support of Registration Review, which can be accessed using docket ID number EPA-HQ-OPP-2014-0544.

EPA is finalizing its proposal to revoke all tolerances for residues of propachlor. Because there are no U.S. registrations for propachlor and because the Agency received no comments requesting the tolerances be retained for imported commodities, these tolerances are no longer needed. These tolerances will expire on January 19, 2024.

EPA is finalizing its proposal to revise the tolerance expression for dichlobenil to describe more clearly the measurement and scope or coverage of tolerances. EPA is also finalizing its proposal to establish a new tolerance for dichlobenil residues in or on cherry at 0.15 ppm, concomitant with the revocation of the tolerance for fruit, stone, group 12 that is no longer needed. The 0.15 ppm tolerance for fruit, stone, group 12 will expire on January 19, 2024. Codex has not established any MRLs for dichlobenil in or on cherry.

This final rule does not include EPA's proposal to change the listing of significant figures for existing tolerances for dichlobenil because the Agency changed its rounding class practice effective March 27, 2019. On that date, EPA adopted the rounding class practice of the Organization for Economic Cooperation and Development (OECD), which eliminates any perceived trade barriers and helps harmonize U.S. tolerances with international MRLs.

During registration review, EPA assessed the risks from exposure to dichlobenil, taking into consideration all reliable data on toxicity and exposure, including for infants and children. Based on the supporting risk assessments and registration review documents, which demonstrate that the aggregate exposure is below the Agency's level of concern, EPA concludes there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to dichlobenil residues. Thus, EPA has determined that the tolerances for residues of dichlobenil are safe. Adequate enforcement methodology as described in the supporting documents is available to enforce the tolerance expression. For further details, see Dichlobenil—Draft Human Health Risk Assessment for Registration Review, which can be accessed using docket ID number EPA-HQ-OPP-2012-0395.

EPA is finalizing its proposal to revoke all tolerances for residues of oxydemeton-methyl. Since the proposed expiration date of December 31, 2017, has already passed, EPA is setting the expiration date for these tolerances as January 19, 2024.

EPA is not making any changes to tolerances with regard to significant figures or harmonization as discussed in the September 2017, proposal since the tolerances are being revoked when they expire.

EPA is finalizing its proposal to revoke the tolerances for broccoli; cabbage; cauliflower; corn, sweet, kernel plus cob with husks removed; and vegetable, leafy, except brassica, group 4. EPA is establishing an expiration date of January 19, 2024, for these tolerances. These tolerances are no longer needed because there are no thiodicarb products registered in the United States labeled for use on these commodities and no comments were received indicating the need to retain these tolerances for imported commodities.

EPA is finalizing its proposal to increase the tolerances for cyromazine residues in or on mango from 0.3 to 0.5 ppm, milk from 0.05 to 0.1 ppm, and mushroom from 1.0 to 8 ppm to harmonize with Canadian MRLs. This final rule does not include EPA's proposal to increase tolerances for pepper to 3 ppm; tomato to 1 ppm; Brassica, leafy greens to 35 ppm; leafy vegetables, except Brassica to 10 ppm; and onion, bulb, subgroup 3-07A to 0.3 ppm because these actions were finalized on October 7, 2019 (84 FR 53316) (FRL-9999-57). As a housekeeping measure, EPA is modifying tolerances for bean, dry, except cowpeas; Bean, lima; Bean, succulent; and Broccoli to remove trailing zeroes, in accordance with the 2019 change in the Agency's rounding class practice.

EPA is finalizing its proposal to consolidate the tolerances for meat byproducts of cattle, goat, hog, horse, and sheep to include kidney and to increase the tolerances from 0.2 to 0.3 ppm. EPA is also finalizing its proposal to revoke the tolerances for kidney of cattle, goat, hog, horse, and sheep; and meat byproducts, except kidney, of cattle, goat, hog, horse, and sheep because they are no longer needed. In addition, EPA is finalizing its proposal to increase tolerances for cyromazine residues in or on egg from 0.25 to 0.3 ppm; meat of cattle, goat, hog, horse, and sheep from 0.05 to 0.3 ppm; poultry, meat (from chicken layer hens and chicken breeder hens only) from 0.05 to 0.1 ppm; poultry, meat byproducts (from chicken layer hens and chicken breeder hens only) from 0.05 to 0.2 ppm; and vegetable, cucurbit, group 9 from 1.0 to 2 ppm. As a housekeeping measure, EPA is removing the tolerance for onion, potato, which has expired.

To address inadvertent residues of cyromazine used as a feed-through fly control agent for chicken manure used as a fertilizer, EPA is finalizing its proposal to establish tolerances for indirect and inadvertent residues of cyromazine resulting from crops grown in soil amended with cyromazine-treated fertilizer, to redesignate 40 CFR 180.414(d) as 180.414(d)(1), and to establish a new paragraph and table in 40 CFR 180.414(d)(2). EPA is establishing tolerances at 0.6 ppm for grain, cereal, forage, fodder and straw, group 16; grain, cereal, group 15; herbs and spices, group 19; oilseed, group 20; onion, bulb, subgroup 3-07A; strawberry; vegetable, foliage of legume, group 7; vegetable, fruiting, group 8-10; vegetable, leaves of root and tuber, group 2; vegetable, legume, group 6; and vegetable, root and tuber, group 1.

This final rule does not include EPA's proposal to change the listing of significant figures for tolerances of cyromazine because the Agency changed its rounding class practice in 2019. Nor does it include EPA's proposal to establish tolerances for indirect or inadvertent residues for cotton, undelinted seed at 0.10 ppm; corn, sweet kernel plus cob with husks removed; corn sweet forage; corn, sweet stover; radish roots; and radish, tops, all at 50 ppm because these actions were finalized on October 7, 2019 (84 FR 53316) (FRL-9999-57).

During registration review, EPA assessed the risks from exposure to cyromazine, taking into consideration all reliable data on toxicity and exposure, including for infants and children. Based on the supporting risk assessments and registration review documents, which demonstrate that the aggregate exposure is below the Agency's level of concern, EPA concludes there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to cyromazine residues. Thus, EPA has determined that the tolerances for residues of cyromazine are safe. Adequate enforcement methodology as described in the supporting documents is available to enforce the tolerance expression. For further details, see Cyromazine: Human Health Risk Assessment for Registration Review, which can be accessed using docket ID number EPA-HQ-OPP-2006-0108 and the October 7, 2019, final rule, Pesticide Tolerances: Cyromazine.

EPA is finalizing its proposal to establish tolerances for aluminum tris ( O -ethylphosphonate), also known as fosetyl-al, residues in or on bushberry subgroup 13-07B at 40 ppm and fruit, pome, group 11-10 at 10 ppm concomitant with the revocation of the tolerances on bushberry subgroup 13B at 40 ppm and fruit, pome, group 11 at 10 ppm.

The Agency is also finalizing its proposal to decrease the tolerance on ginseng from 0.1 to 0.05 ppm to harmonize with the Canadian MRL. The 0.1 ppm tolerance on ginseng will expire on January 19, 2024.

EPA is also finalizing its proposal to establish a new tolerance on caneberry subgroup 13-07A concomitant with the revocation of the tolerance on caneberry subgroup 13A. However, EPA is modifying its proposal to establish the caneberry subgroup 13-07A tolerance at 0.05 ppm. In response to a comment from Bayer CropScience, described in detail in Unit II.B, EPA is establishing this tolerance at 0.1 ppm.

This final rule does not include EPA's proposal to establish a tolerance for fruit, citrus group 10-10 at 9.0 ppm and to revoke the tolerance for fruit, citrus, group 10 at 5.0 ppm because these actions were finalized in 2018, March 21, 2018 (83 FR 12260) (FRL-9974-63). This final rule also does not include the proposed changes to the listing of significant figures for existing tolerances for aluminum tris ( O -ethylphosphonate) for pineapple; pea, succulent; onion, bulb; tomato; and onion, green to reflect a change to the Agency's rounding class practice in 2019.

Although Codex had not established any MRLs for aluminum tris ( O -ethylphosphonate) (also known as fosetyl-al) when this rule was proposed in 2017, EPA notes that Codex established several MRLs in 2018. Therefore, EPA expects to issue a new proposal at a future date to harmonize the tolerances in 40 CFR 180.415 with the Codex MRLs, where appropriate.

During registration review, EPA assessed the risks from exposure to aluminum tris ( O -ethylphosphonate), taking into consideration all reliable data on toxicity and exposure, including for infants and children. Based on the supporting risk assessments and registration review documents, which demonstrate that the aggregate exposure is below the Agency's level of concern, EPA concludes there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to aluminum tris ( O -ethylphosphonate) residues. Thus, EPA has determined that the tolerances for residues of aluminum tris ( O -ethylphosphonate) are safe. Adequate enforcement methodology as described in the supporting documents is available to enforce the tolerance expression. For further details, see Fosetyl-Aluminum: Registration Review Preliminary Risk Assessment, which can be accessed using docket ID number EPA-HQ-OPP-2007-0379, and the September 27, 2021, document, Fosetyl-Al Memo to Support AlCarChlCyDi Final Rule, which is in the docket for this final rule.

EPA is finalizing its proposal to revoke the tolerances for residues of carbon disulfide from the application of sodium tetrathiocarbonate in or on almond; almond, hulls; grape; grapefruit; lemon; orange, sweet; peach; and plum, prune, fresh. These tolerances will expire on January 19, 2024.

EPA is finalizing its proposal to modify the tolerance for flax to change the commodity definition from flax to flax, seed, to be consistent with the Agency's commodity vocabulary. This final rule does not include EPA's proposal to change the listing of significant figures for existing tolerances due to the 2019 change to the Agency's rounding class practice. Nor does this final rule include EPA's proposal to establish a tolerance for residues of sulfentrazone in or on nut, tree, group 14-2 at 0.15 ppm and to revoke the existing tolerances for residues of sulfentrazone in or on nut, tree, group 14 at 0.15 ppm and pistachio at 0.15 ppm because these actions were finalized on April 13, 2018 (83 FR 15977) (FRL-9975-77).

As proposed, the Agency is revoking a tolerance exemption for insecticidal uses of d -limonene at 40 CFR 180.539, and concomitantly establishing two tolerance exemptions in 40 CFR 180.1342 to cover both its existing insecticidal and herbicidal uses.

During registration review, EPA assessed the risks from exposure to d -limonene, taking into consideration all reliable data on toxicity and exposure, including for infants and children. Based on the supporting risk assessments and registration review documents, which demonstrate that the aggregate exposure is below the Agency's level of concern, EPA concludes there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to d -limonene residues. Thus, EPA has determined that the exemptions from the requirement of a tolerance for residues of d -limonene are safe and that an enforcement method is not necessary to enforce the tolerance exemption. For further details, see d-Limonene. Revised Human Health Risk Assessment in Support of Registration Review, which can be accessed using docket ID number EPA-HQ-OPP-2010-0673.

Because revocation of the exemption in 40 CFR 180.539 will not impact import of food commodities treated with d -limonene, this revocation is not considered a trade restrictive measure necessitating a six-month implementation delay under the WTO SPS Agreement.

EPA is finalizing its proposal to modify the tolerance for thiacloprid to correct the listing for the 0.05 ppm stone fruit tolerance from Peach subgroup 12-12C to Plum subgroup 12-12C. This corrects an inadvertent mistake promulgated in a final rule published on June 1, 2016 (81 FR 34902) (FRL-9943-73), which determined that the tolerance is safe. Codex has established an MRL for thiacloprid on stone fruit at 0.5 ppm. U.S. tolerances for Cherry subgroup 12-12A and Peach subgroup 12-12B are harmonized with Codex. EPA is not harmonizing the Plum subgroup 12-12C tolerance as part of this action because that increase was not proposed, and EPA has not yet evaluated its safety.

This final rule does not include EPA's proposal to establish a tolerance for residues of isoxaben in or on nut, tree, group 14-12 at 0.02 ppm and to revoke the existing tolerances for residues of isoxaben in or on nut, tree, group 14 at 0.02 ppm and pistachio at 0.02 ppm because these actions were finalized on February 7, 2018 (83 FR 5307) (FRL-9972-75).

EPA is finalizing its proposal to establish a new tolerance exemption for tartrazine, which is a component of the aquatic plant control product Aquashade, because treated water may be used for irrigation of crops, livestock watering, and fishing.

During the registration review for Aquashade, of which tartrazine is a component, EPA assessed the risks from exposure to tartrazine, taking into consideration all reliable data on toxicity and exposure, including for infants and children. Based on the supporting risk assessments and registration review documents, which demonstrate that the aggregate exposure is below the Agency's level of concern, EPA concludes there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to tartrazine residues. Thus, EPA has determined that the exemptions from the requirement of a tolerance for residues of tartrazine, as a component of Aquashade, is safe and that an enforcement method is not necessary to enforce the tolerance exemption. For further details, see Aquashade®. Scoping Document and Draft Risk Assessment for Registration Review, which can be accessed using docket ID number EPA-HQ-OPP-2015-0639.

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0128 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before September 18, 2023. At this time, the Office of Administrative Law Judges, in which the Hearing Clerk is located, encourages people to utilize the electronic system for filing. See Order Urging Electronic Service and Filing, https://www.epa.gov/sites/default/files/2020-05/documents/2020-04-10_-_order_urging_electronic_service_and_filing.pdf. The system for filing electronically can be found at this website, https://www.epa.gov/alj.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any CBI) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0128, to the Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submission and do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

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

This action is exempt from review by the Office of Management and Budget (OMB) under Executive Orders 12866, October 4, 1993 (58 FR 51735), as amended by Executive Order 14094 (88 FR 21879, April 11, 2023), because it establishes or modifies a pesticide tolerance or a tolerance exemption under FFDCA section 408. This exemption also applies to tolerance revocations for which extraordinary circumstances do not exist. As such, this exemption applies to the tolerance revocations in this final rule because the Agency knows of no extraordinary circumstances that warrant reconsideration of this exemption for those revocation actions.

This action does not impose an information collection burden under the PRA, 44 U.S.C. 3501 et seq., because it does not contain any information collection activities.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. In making this determination, EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities and that the Agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities because the rule has no net burden on small entities subject to the rule. As discussed in the proposed rule, this determination takes into account the EPA analyses for the establishment and modification of tolerances, and for import tolerances or tolerance revocations.

Moreover, for the pesticides listed in this final rule, EPA concludes that there is no reasonable expectation that residues of the pesticides for tolerances listed in this final rule for revocation will be found on the commodities discussed in this final rule, and the Agency knows of no extraordinary circumstances that exist as to the present final rule that would change EPA's previous analyses. Furthermore, the Agency did not receive any comments on these conclusions as presented in the proposed rules.

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

This action does not have federalism implications as specified in Executive Order 13132, August 10, 1999 (64 FR 43255). It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175, November 9, 2000 (65 FR 67249), because it will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.

Executive Order 13045 (62 FR 19885, April 23, 1997) directs federal agencies to include an evaluation of the health and safety effects of the planned regulation on children in federal health and safety standards and explain why the regulation is preferable to potentially effective and reasonably feasible alternatives. This action is not subject to Executive Order 13045 because it is not a significant regulatory action under section 3(f)(1) of Executive Order 12866 (See Unit V.A.), and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. However, EPA's Policy on Children's Health applies to this action.

This rule finalizes tolerance actions under the FFDCA, which requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue ...” (FFDCA 408(b)(2)(C)). Consistent with FFDCA section 408(b)(2)(D), and the factors specified therein, EPA has reviewed the available scientific data and other relevant information in support of these final tolerance actions. The Agency's consideration is documented in the pesticide specific registration review decision documents. See the pesticide specific discussions in Unit III. and access the chemical specific registration review documents in each chemical docket at https://www.regulations.gov.

This action is not subject to Executive Order 13211, May 22, 2001 (66 FR 28355), because it is not a significant regulatory action under Executive Order 12866.

This action does not involve technical standards under the NTTAA section 12(d), 15 U.S.C. 272.

Executive Order 12898 (59 FR 7629, February 16, 1994) directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color and/or indigenous peoples) and low-income populations. As discussed in more detail in the pesticide specific risk assessments conducted as part of the registration review for each pesticide as identified in Unit III., EPA has considered the safety risks for the pesticides subject to this rulemaking and in the context of the tolerance actions set out in this rulemaking. EPA believes that the human health and environmental conditions that exist prior to this action do not result in disproportionate and adverse effects on people of color, low-income populations, and/or indigenous peoples. Furthermore, EPA believes that this action is not likely to result in new disproportionate and adverse effects on people of color, low-income populations and/or indigenous peoples.

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons set forth in the preamble, EPA is amending 40 CFR part 180 as follows:

The proposed rule was published at 88 FR 15637 on March 14, 2023. The Petitioner filed comments in support of the petition reaffirming its commitment to apply for channel 17. No other comments were filed.

The Bureau believes the public interest would be served by substituting channel 17 for channel 9 at Kalispell, Montana. The Station has a long history of severe reception problems as a result of its operation on a VHF channel and the Commission has recognized that VHF poses challenges for stations providing digital television service on those channels due to propagation characteristics that allow undesired signals and noise to be receivable at relatively far distances and result in large variability in the performance of indoor antennas available to viewers, with most antennas performing very poorly on high VHF channels. Thus, the channel substitution proposal will serve the public by resolving the over-the-air reception problems and enhancing viewer reception in KCFW-TV's service area. Moreover, an analysis conducted using the Commission's TVStudy software tool indicates that all but approximately 75 persons will continue to receive the Station's signal and the proposed change to channel 17 will result in a predicted increase in service to more than 38,000 persons.

This is a synopsis of the Commission's Report and Order, MB Docket No. 23-79; RM-11947; DA 23-583, adopted July 5, 2023, and released July 5, 2023. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed 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). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

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

The proposed rule was published at 88 FR 13770 on March 6, 2023. The Petitioner filed comments in support of the petition reaffirming its commitment to apply for channel 34. No other comments were filed.

The Bureau believes the public interest would be served by substituting channel 34 for channel 11 at Coos Bay, Oregon. The Station has a long history of severe reception problems as a result of its operation on a VHF channel and the Commission has recognized that VHF channels pose challenges for stations providing digital television service on those channels due to propagation characteristics that allow undesired signals and noise to be receivable at relatively far distances and result in large variability in the performance of indoor antennas available to viewers, with most antennas performing very poorly on high VHF channels. Thus, the channel substitution will serve the public by resolving the over-the-air reception problems and enhancing viewer reception in KCBY-TV's service area. Moreover, an analysis conducted using the Commission's TVStudy software tool indicates that all but approximately 392 persons will continue to receive the Station's signal, and the channel change will result in a predicted increase in service to more than 11,000 persons.

This is a synopsis of the Commission's Report and Order, MB Docket No. 23-43; RM-11944; DA 23-584, adopted July 5, 2023, and released July 5, 2023. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed 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). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

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

Executive Summary

Why we need to publish a rule. Under the Act, if we determine a plant species no longer meets the definition of an endangered or threatened species, we remove it from the Federal List of Endangered and Threatened Plants ( i.e., we “delist” it). Delisting a species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process.

What this document does. This rule removes (delists) the golden paintbrush from the Federal List of Endangered and Threatened Plants because it no longer meets the Act's definition of either a threatened species or an endangered species.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of the following 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. The determination to delist a species must be based on an analysis of the same factors. Based on an assessment of the best available information regarding the status of and threats to the golden paintbrush, we have determined that the species no longer meets the definition of a threatened species or an endangered species under the Act.

We have determined that golden paintbrush is not in danger of extinction now nor likely to become so in the foreseeable future based on a comprehensive review of its status and listing factors. Specifically, our recent review indicated: (1) An increase in the known number of occurrences of the species within its geographic range, and increased abundance in many populations; (2) resiliency of the species to existing and potential threats; (3) 45 of 48 sites with golden paintbrush are in either public ownership; are owned by a conservation-oriented, nongovernmental organization; or are under conservation easement; and (4) the implementation of beneficial management practices for the species. Accordingly, the golden paintbrush no longer meets the definition of a threatened species or an endangered species under the Act.

Peer review and public comment. The purpose of peer review is to ensure that our determination regarding the status of the species under the Act is based on scientifically sound data, assumptions, and analyses. We prepared a species biological report (SBR) for golden paintbrush (Service 2019) and sought peer review on the report 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 sent the report to four appropriate and independent specialists with knowledge of the biology and ecology of the golden paintbrush and received three responses. The comments and recommendations of the peer reviewers have been incorporated into the SBR as appropriate, and they informed the proposed rule. We posted the peer reviews on https://www.regulations.gov under Docket No. FWS-R1-ES-2020-0060. Furthermore, in our June 30, 2021, proposed rule (86 FR 34695), we requested that all interested parties submit written comments on the proposal by August 30, 2021. We received 10 public comments in response to the proposed rule as discussed below in Summary of Comments and Recommendations.

Staff at the Washington Fish and Wildlife Office (WFWO), in consultation with other species experts, prepared the SBR for golden paintbrush (Service 2019). The report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past and present factors (both negative and beneficial) affecting the species. The report formed the scientific basis for our 5-year status review and this final rule. The report is posted on https://www.regulations.gov under Docket No. FWS-R1-ES-2020-0060.

On May 10, 1994, we published in the Federal Register (59 FR 24106) a proposed rule to list the golden paintbrush as a threatened species under the Act (16 U.S.C. 1531 et seq. ). On June 11, 1997, we published in the Federal Register (62 FR 31740) a final rule to list the species as a threatened species under the Act. The final rule included a determination that the designation of critical habitat for the golden paintbrush was not prudent.

In August 2000, we finalized a recovery plan for the species (Service 2000, entire), which we supplemented in May 2010 with the final recovery plan for the prairie species of western Oregon and southwestern Washington (Service 2010, entire).

On July 6, 2005, we initiated 5-year reviews for 33 plant and animal species, including the golden paintbrush, under section 4(c)(2) of the Act, and requested information on the species' status (see 70 FR 38972). The 5-year status review, completed in September 2007 (Service 2007, entire), resulted in a recommendation to maintain the status of the golden paintbrush as threatened. The 2007 5-year status review is available on the Service's website at https://ecos.fws.gov/docs/five_year_review/doc1764.pdf.

On January 22, 2018, we initiated 5-year status reviews for 18 plant and animal species, including the golden paintbrush, under section 4(c)(2) of the Act, and requested information on the species' status (see 83 FR 3014). In 2019, we completed our SBR (Service 2019).

On June 30, 2021, we published in the Federal Register (86 FR 34695) a proposed rule to remove golden paintbrush from the List, and we made available our draft post-delisting monitoring plan for public review and comment. Our proposed rule followed from the recommendation of the most recent 5-year review for the golden paintbrush, as well as the data and analysis contained in the SBR (Service 2019).

In preparing this final rule, we reviewed and fully considered comments from the public on the June 30, 2021, proposed rule (86 FR 34695) and the draft post-delisting monitoring plan. We updated information presented in the proposed rule based on comments and additional information provided as follows:

(1) We included updated survey information provided to the Service.

(2) We incorporated additional information regarding stressors and potential threats to the species.

(3) We made many small, nonsubstantive clarifications and corrections throughout this rule, including under Summary of Biological Status and Threats, below, in order to ensure better consistency, clarify some information, and update or add new references.

We considered whether this additional information altered our analysis of the magnitude or severity of threats facing the species. We conclude that the information we received during the comment period for the proposed rule did not change our previous analysis of the magnitude or severity of threats facing the species or our determination that golden paintbrush is no longer a threatened species and warrants delisting.

Below, we summarize information for the golden paintbrush directly relevant to this final rule. For more information on the description, biology, ecology, and habitat of the golden paintbrush, please refer to the SBR for golden paintbrush ( Castilleja levisecta ), completed in June 2019 (Service 2019, entire). The SBR is available under Supporting Documents on https://www.regulations.gov in Docket No. FWS-R1-ES-2020-0060. The SBR and other relevant supporting documents are available on the golden paintbrush's species profile page on the Environmental Conservation Online System (ECOS) at https://ecos.fws.gov/ecp/species/7706.

The golden paintbrush is native to the northwestern United States and southwestern British Columbia. It has been historically reported from more than 30 sites from Vancouver Island, British Columbia, to the Willamette Valley of Oregon (Hitchcock et al. 1959, entire; Sheehan and Sprague 1984, p. 5; Gamon 1995, pp. 5-7). The taxonomy of the golden paintbrush as a full species is widely accepted as valid by the scientific community (Integrated Taxonomic Information System (ITIS) 2020, entire).

The golden paintbrush is a short-lived perennial herb formerly included in the figwort or snapdragon family (Scrophulariaceae), with current classification in the Orobanchaceae family. The genus Castilleja is hemiparasitic, with roots of paintbrushes capable of forming parasitic connections to roots of other plants; however, paintbrush plants are probably not host-specific (Mills and Kummerow 1988, entire) and can grow successfully, though not as well, even without a host. Golden paintbrush has superior performance (survival, height, number of flowering stems, number of fruiting stems, number of seed capsules) where it co-occurs with certain prairie species, including several perennial native forbs ( e.g., common woolly sunflower or Oregon sunshine ( Eriophyllum lanatum ) and common yarrow ( Achillea millefolium )), as well as species in other functional groups, including grasses ( e.g., Roemer's fescue ( Festuca roemeri ) and California oatgrass ( Danthonia californica )) and shrubs ( e.g., snowberry ( Symphoricarpos albus )) (Schmidt 2016, pp. 10-17). Anecdotal observations suggest that golden paintbrush grows poorly when associated with annual grasses (Gamon 1995, p. 17).

Individual golden paintbrush plants have a median survival of 1 to 5 years, but some plants can survive for more than a decade (Service 2019, p. 7). Plants are up to 30 centimeters (cm) (12 inches (in)) tall and are covered with soft, somewhat sticky hairs. Stems may be erect or spreading, in the latter case giving the appearance of being several plants, especially when in tall grass. The lower leaves are broader, with one to three pairs of short lateral lobes. The bracts are softly hairy and sticky, golden yellow, and about the same width as the upper leaves.

Golden paintbrush plants typically emerge in early March, with flowering generally beginning the last week in April and continuing until early June. Most plants complete flowering by early to mid-June, although occasionally plants flower throughout the summer and into October. Based on historical collections and observations, flowering seems to occur at about the same time throughout the species' range. Individual plants of golden paintbrush typically need pollinators to set seed. Bumble bee species ( Bombus ) appear to be the most common pollinators visiting golden paintbrush (Wentworth 1994, p. 5; Kolar and Fessler 2006, in litt.; Waters 2018, in litt.; Kaye 2019, in litt.), although sweat bees (Halictidae), miner bee ( Andrena chlorogaster ), syrphid fly ( Eristalis hirta ), and bee fly ( Bombylius major ) have also been observed visiting golden paintbrush plants (Kolar and Fessler 2006, in litt.; Waters 2018, in litt.).

Fruits typically mature from late June through July, with seed capsules beginning to open and disperse seed in August. By mid-July, plants at most sites are in senescence (the process of deterioration with age), although this can vary considerably depending on available moisture. Capsules persist on the plants well into the winter, and often retain seed into the following spring. Seeds are likely shaken from the seed capsules by wind, with most falling a short distance from the parent plant (Godt et al. 2005, p. 88). The seeds are light (approximately 8,000 seeds per gram) and could possibly be dispersed short distances by wind (Kaye et al. 2012, p. 7). Additionally, there is at least one reported instance of short-distance movement of seeds via vole activity (Kolar and Fessler 2006, in litt.). Therefore, natural colonization of new sites would likely occur only over short distances as plants disperse from established sites. Germination tests in different years with seed from various populations suggest that germination rates can vary extremely widely both between sites and between years (Wentworth 1994, entire). Germination tests also revealed that seeds likely remain viable in the wild for several years (Wentworth 1994, p. 17).

Individuals of the golden paintbrush require open prairie soils, near-bedrock soils, or clayey alluvial soils with suitable host plants. These suitable habitats occur from zero to 100 meters (330 feet) above sea level (Service 2000, p. 5). The golden paintbrush may have historically grown in deeper soils, but nearly all of these soils within the known range of the species have been converted to agriculture (Lawrence and Kaye 2006, p. 150; Dunwiddie and Martin 2016, p. 1). Reintroduction efforts have targeted sites or microsites, with features such as mounds or swales and deeper soils where these efforts were more likely to be effective (Dunwiddie and Martin 2016, p. 15).

Populations currently occur on the mainland in the States of Washington and Oregon, and on islands in the State of Washington and in British Columbia, Canada. Mainland and island populations form two broad categories of populations that can vary slightly in habitat setting. Individuals in mainland populations are found in open, undulating remnant prairies dominated by Roemer's fescue and red fescue ( Festuca rubra ) on gravelly or clayey glacial outwash. Individuals in island populations are often on the upper slopes or rims of steep, southwest- or west-facing, sandy bluffs that are exposed to salt spray. Individuals in island populations may also occur on remnant coastal prairie flats on glacial deposits of sandy loam. Island prairies may have historically been dominated by forbs and foothill sedge ( Carex tumulicola ) rather than grasses (Washington Department of Natural Resources (WDNR) 2004b, pp. 11, 17); however, many island sites are now dominated by red fescue or weedy forbs. All golden paintbrush sites are subject to encroachment by woody vegetation if not managed.

Historically, fire was significant in maintaining open prairie conditions in parts of the range of the golden paintbrush (Boyd 1986, p. 82; Gamon 1995, p. 14; Dunwiddie et al. 2001, p. 162). The golden paintbrush is a poor competitor, intolerant of shade cast by encroaching tall nonnatives and litter duff in fire-suppressed prairies. Native perennial communities are likely to support more host species appropriate for the golden paintbrush than those dominated by nonnative annuals (Lawrence and Kaye 2011, p. 173). Thus, habitats with low presence of nonnative annuals and high presence of a diverse assemblage of perennial, native prairie species are more likely to provide the best conditions for survival of golden paintbrush plants year-to-year (Dunwiddie and Martin 2016, p. 1).

The golden paintbrush is endemic to the Pacific Northwest, historically occurring from southeastern Vancouver Island and adjacent islands in British Columbia, Canada, to the San Juan Islands and Puget Trough in western Washington and into the Willamette Valley of western Oregon (Fertig 2021, pp. 33-34).

Currently, the species occurs within British Columbia, Washington, and Oregon, representing, generally, four geographic areas (British Columbia, North Puget Sound, South Puget Sound, and the Willamette Valley). The species' historical distribution—before European settlement and modern development in the Pacific Northwest—is unknown. However, the species' current distribution is generally representative of the areas where we suspect the species occurred historically.

Since its Federal listing in 1997, only one new population of golden paintbrush that was likely extant at the time of listing has been discovered across the species' range (Service 2007, p. 6). All other new populations across the range are the result of reintroductions through outplanting or direct seeding. Seeds used to grow plugs for outplanting, and plant stock for seed production, were derived from populations that were extant at the time of listing (referred to as “wild sites” in the SBR and other documents) (Service 2019, p. 5). Please note that in previous Service documents (Service 2000, Service 2007, Service 2019), the terms “site” and “population” were used interchangeably. For the purpose of this document, we will use “population” to be more consistent with how the data have been reported over time (Fertig 2019, pp. 11-38).

At the time of listing (see 62 FR 31740; June 11, 1997), there were 10 known golden paintbrush populations: 8 in Washington and 2 in British Columbia. No golden paintbrush populations were known from Oregon at the time of listing (Sheehan and Sprague 1984, pp. 8-9; WDNR 2004b, p. 2). Despite its limited geographic range and isolation of populations, the golden paintbrush retained exceptionally high levels of genetic diversity, possibly because there were several large populations that remained (Godt et al. 2005, p. 87).

Since its Federal listing, the distribution and abundance of golden paintbrush have increased significantly as a result of outplanting (seeding or plugging). During the last rangewide assessment, a minimum of 48 populations were documented (Service 2019, pp. 11-14). Based on these data, in Washington, there are 19 populations: 5 in the South Puget Sound prairie landscape, 6 in the San Juan Islands, 7 on Whidbey Island, and 1 near Dungeness Bay in the Strait of Juan de Fuca. In Oregon, there are 26 extant populations within the Willamette Valley. In British Columbia, there are three extant populations, each located on a separate island. Of these 48 populations, only 3 are on private property (Service 2019, p. 12). The remaining 45 golden paintbrush populations are in either public ownership; are owned by a conservation-oriented, nongovernmental organization; or are under conservation easement.

Trends in abundance for the golden paintbrush have been consistently monitored since 2004 (Fertig 2021, pp. 11-38), with refinements to monitoring protocols made in 2008 and 2011 (Arnett 2011, entire). Rangewide abundance has substantially increased from approximately 11,500 flowering plants in 2011, to more than 560,000 flowering plants counted in 2018 (Fertig 2021, p. 22). In 2019, the number of flowering plants declined to 325,320 (Fertig 2021, p. 22). Although this appears to be a drop in abundance, we attribute the rapid increase in abundance in 2018 to the development of direct seeding techniques for establishing new populations, as opposed to outplanting individual plants (or plugs) grown in greenhouses. Most of the populations in Washington and Oregon's Willamette Valley were established by incorporating direct seeding. The 2018 rangewide population abundance was not necessarily reflective of the eventual long-term population level at a site. A number of reestablished populations have been going through a period of prairie development/progression and species succession. For example, at some reestablished populations, abundance initially increased over several years then dropped to about 15-20 percent of the peak abundance (Fertig 2021, pp. 23-27). Drops in abundance are somewhat expected as the populations experience variability after direct seeding, and we anticipate that long-term population levels at these reestablished sites will meet recovery criteria.

In 2020, there was a reduction of survey effort due to limitations related to the COVID pandemic, and while the majority of populations were surveyed consistently in Washington, 25 populations in Oregon were not surveyed. The last 4 years of monitoring rangewide (2017-2020) represent the 4 years with greatest abundance, even without data from the 25 sites in Oregon that were not monitored in 2020 (Fertig 2021, p. 14). The year 2020 also represents the second highest abundance of golden paintbrush in the State of Washington at 202,208 flowering plants, which was a 47.8 percent increase from 136,846 in 2019 (Fertig 2021, p. 11).

In contrast to the newly established golden paintbrush populations (referred to as “outplantings”), there has been a steady decline in overall abundance of the populations extant at the time of listing since 2012. Abundance at these populations dropped from just over 15,500 flowering plants in 2012, to 2,223 flowering plants in 2020 (Fertig 2021, p. 11).

The Service considers the demographics and site conditions of all golden paintbrush populations across the species' range when determining the status of the species, including populations extant at the time of listing, as well as new populations outplanted since the time of listing. In past Service documents, the sites with populations extant at the time of listing have often been referred to as “wild” sites, and trends of abundance have been tracked separately from outplanted populations (see Fertig 2021, p. 14, and Service 2019, p. 30). Because seed from many of the populations extant at the time of listing was used to establish populations across the range, all outplanted populations have representation from original source populations, though the outplanted populations have increased genetic diversity from their source populations due to mixed-source production beds (St. Clair et al. 2020,p. 590). While declines in abundance have been occurring steadily in the populations extant at the time of listing, we do not believe these sites should be considered “wild” or different from outplanted populations, as many have been managed and/or augmented over time and many share genetics with the outplanted populations. Success of golden paintbrush outplantings has been associated with microsites with deeper soils and high richness of native perennial forbs (Dunwiddie and Martin 2016, p. 1); these microsites were likely where golden paintbrush persisted historically, but many of these were tilled for agricultural purposes or developed. Many of the golden paintbrush populations extant at the time of listing may represent marginal or less optimal remnant habitats or sites that were not suitable for other uses (Dunwiddie et al. 2016, pp. 207-209). For the purposes of assessing recovery of the species across its range, the Service acknowledges that individual populations will vary in viability, and these differences between populations have been accounted for in our current condition analysis within the SBR (Service 2019, entire) and in our evaluation of the species' overall resiliency, redundancy, and representation.

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the Lists of Endangered and Threatened Wildlife and Plants.

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

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

Here, we provide a summary of progress made toward achieving the recovery criteria for the golden paintbrush. More detailed information related to conservation efforts can be found below under Summary of Biological Status and Threats. We completed a final recovery plan for the golden paintbrush in 2000 (Service 2000, entire), and later supplemented the plan for part of the species' range in 2010 (Service 2010, entire). The 2000 plan includes objective, measurable criteria for delisting; however, the plan has not been updated for more than 20 years, so some aspects of the plan may no longer reflect the best scientific information available for the golden paintbrush.

Since about 2012, a significant increase in the number of new populations has occurred, because of direct seeding within the species' historical range in Washington and Oregon, with perhaps the most significant being the reestablishment of the golden paintbrush at a number of sites in Oregon's Willamette Valley, where the species was once extirpated. In addition to improved propagation techniques, substantial research has been conducted on the population biology, fire ecology, and restoration of the golden paintbrush (Dunwiddie et al. 2001, entire; Gamon 2001, entire; Kaye and Lawrence 2003, entire; Swenerton 2003, entire; Wayne 2004, entire; WDNR 2004b, entire; Lawrence 2005, entire; Dunwiddie and Martin 2016, entire; Lawrence 2015, entire; Schmidt 2016, entire).

The results of these studies have been used to guide management of the species at sites being managed for native prairie and grassland ecosystems. Active management to promote the golden paintbrush is being done to varying degrees (from targeted to infrequent) across prairie and grassland sites. An active seed production program has been maintained to provide golden paintbrush seeds and other native prairie plant seeds to land managers for population augmentation and restoration projects across the species' range in Washington and Oregon. Additionally, as recommended by the recovery plan for the golden paintbrush (Service 2000, p. 31), the State of Washington prepared a reintroduction plan for the Service as both internal and external guidance (WDNR 2004a, entire).

Below are the delisting criteria described in the 2000 golden paintbrush recovery plan (Service 2000, p. 24), as supplemented in 2010, and the progress made to date in achieving each criterion.

Criterion 1 is that there are at least 20 stable populations distributed throughout the historical range of the species. To be deemed stable, a population must maintain a 5-year running average population size of at least 1,000 individuals, where the actual count never falls below 1,000 individuals in any year. The golden paintbrush technical team recommended in the 2007 5-year status review that this criterion should be modified. Because it is impractical to count individual vegetative plants, the team recommended that the criterion should be modified to specifically account for a recovered population as equal to 1,000 flowering individuals and known to be stable or increasing as evidenced by population trends (Service 2007, p. 3). While we did not officially amend or make an addendum to the recovery plan to incorporate this recommendation, we accepted this as the best way to count population abundance, since monitoring has consistently counted flowering plants, following a standardized methodology set by the Washington Department of Natural Resources Natural Heritage Program (WNHP) (Arnett and Birkhauser 2008, entire; Arnett 2011, entire).

The Service supplemented this criterion in its 2010 recovery plan for the prairie species of western Oregon and southwestern Washington by identifying locations for golden paintbrush reintroductions, specifically to establish five additional populations distributed across at least three of the following recovery zones: Southwest Washington, Portland, Salem East, Salem West, Corvallis East, Corvallis West, Eugene East, and Eugene West. Priority was given to reestablishing populations in zones with historical records of golden paintbrush (Southwest Washington, Portland, Salem East, Corvallis East) (Service 2010, p. IV-37).

At the time of the proposed rule (data through 2018), 23 populations averaged at least 1,000 individuals per year over the 5-year period, with 8 populations with a 5-year running average of at least 1,000 individuals. As of 2020, 17 populations averaged at least 1,000 individual plants per year over the 5-year period with most recent data from 2016 to 2020 (2015 to 2019 for sites with no data in 2020). Of these 17 populations, 7 had a 5-year running average of at least 1,000 individuals, and an additional 6 populations had a 3-year running average of at least 1,000 individuals (Gray 2022, in litt.). As noted above, we only count flowering plants during monitoring, so in most years a proportion of individual plants may not be represented in annual counts because they are not flowering during surveys. While the most recent data do not meet the recovery criteria (of 20 such populations), we find that many of the species' populations are sufficiently resilient to make up for the smaller number of populations based on the following analysis.

Eight populations currently number in the tens of thousands of individuals, the largest totaling 82,692 flowering plants (Glacial Heritage) (Fertig 2021, pp. 16-20). Prior to listing, the largest known population totaled just over 15,000 individuals (Rocky Prairie Natural Area Preserve) (62 FR 31740; June 11, 1997). Abundance at these eight populations is greater (approximately 10,000 or more flowering plants) than the 1,000-individual threshold established at the time of the drafting of the recovery plan for this species (Service 2019, pp. 12-13). These large populations are distributed across the species' range in both Oregon and Washington, contributing to the species' ability to withstand stochastic or catastrophic events. Although it is likely that a number of the more recently established populations are still experiencing variability and may experience an initial peak in abundance followed by a decline to a lower abundance level, these larger populations are more likely to be self-sustaining in the wild over time, are more able to withstand stochastic disturbance, have higher viability, and face an overall lower risk of extirpation than populations at or just above the threshold of 1,000 individuals.

In addition, there are now a minimum of 26 golden paintbrush populations in western Oregon's Willamette Valley, and these populations are distributed across 4 (Corvallis West, Salem West, Portland, Eugene West) of the recovery zones (Kaye 2019, pp. 11-23) identified in the 2010 supplement to the species' recovery plan (Service 2010, pp. IV-4, IV-37). In summary, we conclude that significant progress has been made toward achieving this criterion, and for some populations, the progress is well beyond numerical levels that were anticipated at the time of recovery criteria development. Although we acknowledge annual variability of abundance across sites, at least eight sites across Washington and Oregon number in the tens of thousands of individuals (Fertig 2021, pp. 16-20), which significantly surpasses the minimum 1,000-individual threshold. This number of individuals increases our confidence that the overall viability of the species is secured, despite having fewer than 20 populations with a 5-year running average of at least 1,000 individuals. In addition, new populations can now be more quickly established through direct seeding and there are multiple sites where the species has recently been seeded. There are also plans to add new outplantings into the future (Fertig 2021, p. 11).

Criterion 2 is that at least 15 populations over 1,000 individuals are located on protected sites. In order for a site to be deemed protected, it must be either owned or managed by a government agency or private conservation organization that identifies maintenance of the species as the primary management objective for the site, or the site must be protected by a permanent conservation easement or covenant that commits present and future landowners to the conservation of the species.

This recovery criterion has not been met as phrased in the recovery plan, because the primary management objective of the protected sites is not always to protect only golden paintbrush. However, we find that the goal of the criterion, a significant number of populations under conservation ownership protective of the species that are likely to be self-sustaining over time, has been greatly exceeded. Forty-five of the 48 golden paintbrush sites are in either public ownership; are owned by a conservation-oriented, nongovernmental organization; or are under conservation easement (Service 2019, p. 62). Such ownership is expected to protect sites from development and land use that would have long-term, wide-ranging deleterious effects on this species. Additionally, 37 sites currently have management practices that at least preserve essential characteristics of golden paintbrush habitat, and 24 sites have management plans and resources for their implementation for multiple years (Service 2019, pp. 40, 42-44). In addition, at least two of the five conservation easement sites are also enrolled in the Service's Partners for Fish and Wildlife Program, which provides technical and financial assistance to private landowners to restore, enhance, and manage private land to improve native habitat. At least 3 sites in Washington and 14 sites in Oregon also support other prairie-dependent species currently listed as endangered or threatened species under the Act, and another 5 are part of designated critical habitat for one of these species. Therefore, we anticipate prairie management or maintenance will be ongoing at these golden paintbrush sites for the foreseeable future. Two of the three extant sites in British Columbia that are managed by Parks Canada are also located within designated “ecological reserves” (Service 2019, p. 14). The level of management specific to golden paintbrush varies at each site, but all sites are generally being managed to conserve or restore native prairie or grassland habitats. For additional detail on species management status at sites, see the discussion under Summary of Biological Status and Threats, below.

Criterion 3 is that genetic material, in the form of seeds adequately representing the geographic distribution or genetic diversity within the species, is stored in a facility approved by the Center for Plant Conservation.

This recovery criterion is met. Seeds are being stored at two approved facilities, the Rae Selling Berry Seed Bank at Portland State University and the Miller Seed Vault at the University of Washington Botanic Garden. In addition, the active seed production programs at the Center for Natural Lands Management in the South Puget Sound, Washington, and two smaller nurseries in the North Puget Sound, Washington, continue to provide golden paintbrush seeds to land managers for population augmentation and prairie restoration projects. Production programs were started using seeds from nearly all the populations extant at the time of listing to maintain existing genetic diversity across the species' historical range and to allow for the greatest opportunity for local adaptation at reintroduction sites.

Criterion 4 is that post-delisting monitoring of the condition of the species and the status of all individual populations is ready to begin.

We have developed a post-delisting monitoring plan in cooperation with our lead State partners in Washington (Washington Department of Natural Resources (WDNR)) and in Oregon (Oregon Department of Agriculture (ODA)). The final post-delisting monitoring plan is available for public review on https://www.regulations.gov under Docket No. FWS-R1-ES-2020-0060. We anticipate that the WDNR's WNHP and ODA will coordinate future monitoring. In the post-delisting monitoring plan, we include the monitoring of, at a minimum, all populations established and counted in 2018 that were identified in the SBR (Service 2019, pp. 12-13). These populations will be monitored every other year after final delisting for a 5-year period ( i.e., three times, in years 1, 3, and 5, after this final rule is effective). Several key prairie conservation partners may choose to monitor these golden paintbrush sites more frequently and may also choose to monitor additional golden paintbrush sites as more become established across the species' range in Oregon and Washington. Parks Canada oversees periodic monitoring of the three extant populations within British Columbia, Canada. Therefore, this recovery criterion is met.

Criterion 5 is that post-delisting procedures for the ecological management of habitats for all populations of golden paintbrush have been initiated.

This criterion has not been met as phrased in the recovery plan, as procedures for ecological management for all populations are not in place. However, we find that the intent of this criterion has been met because a substantial proportion of known golden paintbrush sites, i.e., 37 out of 48,—more than the 20 populations originally envisioned for these recovery criteria—meet this criterion. At least 24 of the 48 golden paintbrush sites have had prairie or grassland management plans in place for multiple years. An additional 13 sites that lack a long-term management plan for the golden paintbrush receive basic maintenance to preserve the prairie characteristics of golden paintbrush habitat (Service 2019, pp. 42-44). As described earlier, significant strides have been made in the ecological management techniques for restoration and maintenance of prairie landscapes and the reintroduction and management of golden paintbrush at these and other sites. The current level of management varies across extant sites, influenced by need, conservation partner capacity, and funding availability. We anticipate ongoing management at a minimum of 37 of these sites, although the level of management will continue to vary across sites based on these same factors (Service 2019, pp. 40, 42-44) (see additional discussion regarding ongoing site management under Summary of Biological Status and Threats, below). The most actively managed sites may include plantings, fencing, prescribed fire, herbicide use for weed control, mowing, and controlled public use. As described above under Criterion 2 for Delisting, at least 17 sites currently contain multiple, prairie-dependent species and an additional 5 sites are designated critical habitat for another prairie-dependent species. Those golden paintbrush sites that support multiple, prairie-dependent species listed under the Act are anticipated to receive the most consistent ecological management into the future. While this recovery criterion has not been fully achieved ( i.e., not all populations have post-delisting management procedures in place), ecological management of habitat is expected to occur on the vast majority of the known sites and management will occur on far more than the originally projected 15 sites identified above under Criterion 2 for Delisting.

With the more recently identified threat of hybridization from harsh paintbrush ( Castilleja hispida ), additional measures are being implemented and refined to address the impacts to golden paintbrush on contaminated sites and prevent the spread of harsh paintbrush to uncontaminated golden paintbrush sites in the South Puget Sound geographic area in Washington. The Service has developed a strategy and guidance document for securing golden paintbrush sites and outlining solutions necessary for the long-term protection of golden paintbrush from hybridization (Service et al. 2021, entire). In addition, the Service has signed a memorandum of understanding (MOU) with our State conservation partners to ensure hybridization is contained and the conservation strategy is followed to benefit golden paintbrush while supporting recovery of other sympatric (occurring within the same geographical area) prairie species listed under the Act (Service et al. 2020, entire). We provide more information and discussion on the hybridization conservation strategy and how it fits into the conservation of golden paintbrush in Summary of Biological Status and Threats, and our response to (15) Comment, below.

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

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

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

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

For species that are already listed as endangered or threatened species, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the downlisting or delisting and the removal of the Act's protections. A recovered species is one that no longer meets the Act's definition of an endangered species or a threatened species. For the golden paintbrush, we consider 30 years to be a reasonable period of time within which reliable predictions can be made for stressors and species' response. This time period includes multiple generations of the golden paintbrush, generally includes the term of and likely period of response to many of the management plans for the species and/or its habitat, and encompasses planning horizons for prairie habitat conservation efforts ( e.g., Dunwiddie and Bakker 2011, pp. 86-88; Service 2011, entire; Altman et al. 2017, pp. 6, 20); additionally, various global climate models and emission scenarios provide consistent predictions within that timeframe (Intergovernmental Panel on Climate Change (IPCC) 2014, p. 11). We consider 30 years a relatively conservative timeframe in view of the long-term protection afforded to 93 percent of the species' occupied populations (45 of 48), which occur on conserved/protected lands (Service 2019, p. 62).

The SBR documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species. The report does not represent our decision on whether the species should be delisted under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the report, which can be found at Docket FWS-R1-ES-2020-0060 on https://www.regulations.gov.

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

Below, we review the biological condition of the species and its resources, and the threats that influence the species' condition in order to assess the species' overall viability and the risks to that viability. In addition, the SBR (Service 2019, entire) documents our comprehensive biological status review for the species, including an assessment of the potential threats to the species. The following potential threats were identified for this species at the time of listing: (1) Succession of prairie and grassland habitats to shrub and forest lands (due to fire suppression, interspecific competition, and invasive species); (2) development of property for commercial, residential, and agricultural use; (3) low potential for expansion and refugia due to constriction of habitat (from surrounding development or land use); (4) recreational picking (including associated trampling); and (5) herbivory (predation on plants and seeds) (62 FR 31740; June 11, 1997). For our analysis, we assessed the influence of these potential threats on the current status of the species, as well as the influence of two potential threats not considered at the time of listing: hybridization of golden paintbrush with harsh paintbrush, and the impacts of climate change. We also assessed current voluntary and regulatory conservation mechanisms relative to how they reduce or ameliorate existing threats to golden paintbrush.

At the time of listing, the principal cause of ongoing habitat loss was succession of prairie and grassland habitats to shrub and forest due to fire suppression, interspecific competition, and invasive species (62 FR 31740; June 11, 1997). The potential for development at, or surrounding, extant sites for commercial, residential, and agricultural purposes also posed a threat to the golden paintbrush at the time of listing. Both of these threat factors were preventing or limiting extant populations from expanding and recruiting into new or adjacent areas and afforded no refugia for the species in the case of catastrophic events.

Currently, ongoing prairie or grassland management or maintenance occurs at the majority of extant golden paintbrush sites. This management includes removal or suppression of trees and both native and nonnative woody shrubs, as well as control of nonnative, invasive grassland plant species through a number of different approaches ( e.g., mowing, prescribed fire, mechanical removal, selective-herbicide application, restoration reseeding, etc.). Most golden paintbrush sites have either had prairie or grassland management plans in place for multiple years or receive basic maintenance to preserve the prairie characteristics of golden paintbrush habitat (Service 2019, pp. 42-44). Three golden paintbrush sites in Washington also currently support other prairie- or grassland-dependent species listed under the Act—the endangered Taylor's checkerspot butterfly ( Euphydryas editha taylori ) and three threatened subspecies of Mazama pocket gopher ( Thomomys mazama spp.) (Olympia pocket gopher ( Thomomys mazama pugetensis ), Tenino pocket gopher ( Thomomys mazama tumuli ), and Yelm pocket gopher ( Thomomys mazama yelmensis ))—while an additional five sites in Washington are included in designated critical habitat for the Taylor's checkerspot butterfly.

Although these five critical habitat sites are currently unoccupied by the Taylor's checkerspot butterfly, they were designated because they were found to be essential for the conservation of the butterfly (78 FR 61506; October 3, 2013). Harsh paintbrush ( Castilleja hispida ) is a host plant for Taylor's checkerspot butterfly in the South Puget Sound geographic area in Washington. As we discuss further below (see Hybridization ), golden paintbrush generally cannot co-occur with harsh paintbrush due to the threat of hybridization. However, as we continue to work with our conservation partners to follow the hybridization strategy and guidance document to prioritize sites for both golden paintbrush and Taylor's checkerspot butterfly we also continue to explore opportunities to conserve both species on individual sites where appropriate. In addition, at least 14 golden paintbrush sites in Oregon's Willamette Valley currently support one or more other prairie- or grassland-dependent species listed under the Act that do not present the threat of hybridization—the endangered Fender's blue butterfly ( Icaricia icarioides fenderi ), endangered Willamette daisy ( Erigeron decumbens ), threatened Kincaid's lupine ( Lupinus oreganus var. kincaidii, listed as Lupinus sulphureus ssp. kincaidii ), and threatened Nelson's checker-mallow ( Sidalcea nelsoniana ) (Institute for Applied Ecology 2019, in litt.).

We expect a number of golden paintbrush sites in both Washington and Oregon to continue to be managed in a way that supports the recovery of other prairie- or grassland-dependent species in addition to the long-term conservation of the golden paintbrush. As long as periodic management or maintenance continues to occur at golden paintbrush sites across the species' range, the threat of prairie or grassland succession is expected to remain adequately addressed into the foreseeable future. State and Federal management plans include specific objectives to continue to protect and conserve the golden paintbrush at a number of sites. States, Federal agencies, and conservation organizations have invested significant resources into golden paintbrush recovery, as well as general prairie and grassland restoration and conservation for a variety of at-risk, prairie-dependent species. We do not anticipate habitat for these prairie-dependent species to contract further given the limited amount of remaining prairie habitat and the long-term investments conservation partners have made, and continue to make, to restore, rebuild, maintain, and conserve these relatively rare regional ecosystems (Dunwiddie and Bakker 2011, entire; Center for Natural Lands Management 2012, in litt., entire; The News Tribune 2014, in litt.; Altman et al. 2017, entire; The Nature Conservancy 2019, in litt., entire).

Golden paintbrush now occurs within 48 separate populations as a result of the numerous reintroduction efforts implemented to recover this species. Only three of these populations are on lands possibly subject to future development. The remaining 45 populations are all under some type of public or conservation ownership (Service 2019, pp. 11-14). Of the 48 extant populations, at least 81 percent (n=39) are on land with some known level of protected status (at a minimum, formally protected as a natural area or other such designation, although not all of these designations are permanent) (Service 2019, pp. 42-44). In addition, of the 39 populations with some protected land status, 19 also include stipulations for, or statements of specific protection of, perpetual management of the golden paintbrush.

Although the total area occupied by the golden paintbrush at 19 of the 48 sites is relatively small (less than 0.4 hectare (ha) (1 acre (ac)), 14 of the 48 sites have between 0.4 to 1.6 occupied ha (1 to 3.9 ac), and another 14 of the 48 sites have from between 2 to 18.6 occupied ha (5 to 46 ac). We lack this information at one site (Service 2019, pp. 37-38). All but 4 of the 48 sites have available land for future golden paintbrush population expansion or shifts in distribution. Of the 33 sites with less than 2 ha (5 ac) of occupied habitat, 10 have an estimated range of 0.8 to 2 ha (2 to 5 ac) of additional habitat for expansion, and at least 13 have an estimated range of 2 to 6 ha (5 to 15 ac) of additional habitat for future expansion (Service 2019, pp. 37-38). In addition, the species is much less reliant on expanding site-use and refugia than at the time of listing, when only 10 extant populations of the golden paintbrush remained. The reintroduction and seed production techniques developed for golden paintbrush recovery have provided the means to more easily establish or reestablish populations at prairie restoration sites than were previously possible. Many of these sites have been specifically acquired for their potential overall size, conservation value, and conservation status. The golden paintbrush has been reintroduced and established at prairie restoration sites that are well-distributed across the species' historical range, well beyond the 10 extant sites at the time of listing. As a result of these conditions, we do not anticipate development in or around these sites to become a threat to the golden paintbrush in the foreseeable future.

At the time of listing, we considered overutilization from recreational picking (flowers) to be a threat (62 FR 31740; June 11, 1997). Our concern with recreational picking or collection of flowers was that it would reduce overall potential seed-set at a population. Concern has also been noted regarding the direct harvesting of seed capsules (Dunwiddie 2018, in litt.). Although there is evidence of occasional recreational or possible commercial collection of capsules that reduced the amount of seed available on a site, collection is no longer considered a significant stressor to the species across its range (Service 2019, p. 47). In addition, the current number of established and protected golden paintbrush populations, many with limited or restricted access, largely ameliorates this previously identified threat. We acknowledge that the golden paintbrush is likely a desirable species for some gardeners or plant collectors. However, when delisted (see DATES , above), golden paintbrush seeds or plants are likely to become available through controlled sale to the public from regional prairie conservation partners and/or regional native plant nurseries, similar to what occurs with other non-listed prairie plant species. For these reasons, we do not expect the possible collection of golden paintbrush flowers or seeds to become a threat to the species in the foreseeable future.

At the time of listing, we identified trampling of golden paintbrush plants by recreationalists as impacting the species at some sites with high levels of public use, especially where and when associated with recreational picking of golden paintbrush flowers. Although some risk of trampling to plants will always be present across public sites ( e.g., State parks, national wildlife refuges), most sites often have some level of restricted access when golden paintbrush plants are in bloom ( e.g., fenced from deer or inaccessible to the public) or there are defined walking or viewing areas. Therefore, when compared with the potential impact of trampling at the time of listing, the current impact is likely insignificant, due to the number of reestablished golden paintbrush populations, the large size of many of these sites, and considerable abundance of golden paintbrush plants at some of these sites. For the above reasons, we also do not anticipate that trampling will become a threat in the foreseeable future.

At the time of listing, we considered predation (herbivory) on the golden paintbrush by native (voles and deer) and introduced (rabbits) species to be a threat to the plant (62 FR 31740; June 11, 1997); however, the best available information does not indicate it is a current or future threat. Although deer and elk exhibit herbivory on the golden paintbrush at some sites, there is annual and site-specific variability in the overall level of herbivory (Service 2019, p. 48; Martin 2021, p. 9). Herbivory impacts from rabbits and voles on the golden paintbrush have not been broadly or consistently observed and also appear to be variable across sites and years. Where herbivory by deer or rabbits or both has been significant, control with fencing has been successfully implemented, but controlling herbivory through fencing over large areas is limited by cost (Service 2019, p. 48). In addition, encouraging localized reduction of deer populations through lethal removal near some sites (Washington Department of Fish and Wildlife 2019, in litt.; Pelant 2019, in litt.) and installing raptor perch poles to control rodents and rabbits at some sites are also being implemented to reduce impacts of herbivory on the golden paintbrush (Service 2019, p. 48). As a consequence of the significant increase in the number of golden paintbrush populations that have been successfully established across the species' range since it was listed, and because the impact of herbivory is being adequately managed in at least a portion of those sites where noted as significant (potential site- or population-level effect), we conclude predation (herbivory) no longer has a significant impact across the majority of the golden paintbrush's 48 sites/populations, nor at the species level, and it is unlikely to become a threat to the species in the foreseeable future.

As noted above, a potential threat to the golden paintbrush identified after the species was listed in 1997 was the impact of hybridization with the harsh paintbrush. The harsh paintbrush is one of the host plants introduced to prairie sites targeted for endangered Taylor's checkerspot butterfly recovery efforts. Our 2007 5-year status review recommended, “the evaluation of the potential for genetic contamination of golden paintbrush populations by hybridization with other species of Castilleja ” (Service 2007, p. 15). After initial evaluation, the potential risk of hybridization was considered relatively low and manageable (Kaye and Blakeley-Smith 2008, p. 13). However, after further evaluation and additional observations in the field, hybridization with the harsh paintbrush has now been identified as a significant potential threat to golden paintbrush populations where the two species occur together or in close proximity (Clark 2015, entire; Sandlin 2018, entire). Three former golden paintbrush recovery sites have now been discounted by the Service for the purposes of recovery due to the level of hybridization at these sites (Service 2019, p. 15). At least one other site is currently vulnerable to the effects of hybridization, but management efforts to date (removal of plants that exhibit hybrid characteristics and creation of a zone of separation between harsh paintbrush and golden paintbrush areas at the site) have maintained this golden paintbrush population. Currently, hybridization appears to be confined to those areas located in the South Puget Sound prairie region where both species of Castilleja were used at some of the same habitat restoration sites. The only known incident of hybridization outside of this region was at Steigerwald Lake National Wildlife Refuge in southwestern Washington, where we unknowingly used a seed mix that included the harsh paintbrush. This site has since been eradicated of both Castilleja species, but we anticipate reintroducing the golden paintbrush to the site in the future (Ridgefield National Wildlife Refuge Complex 2019, in litt., entire).

As a response to this emerging threat, efforts were implemented, and are ongoing, to reduce or eliminate the risk of hybridization to the golden paintbrush. These include efforts such as maintaining isolated growing areas for the golden paintbrush and harsh paintbrush at native seed production facilities used in prairie restoration efforts, maintaining buffers between golden paintbrush and harsh paintbrush patches at sites where both species are currently present, and delineating which of the two species will be used at current and future prairie conservation or restoration sites. We recently developed a strategy and guidance document for securing golden paintbrush sites to address containment of hybridization at existing contaminated sites and prevention of unintentional spread of hybridization to other regions within the golden paintbrush's range, specifically north Puget Sound and the Willamette Valley (Service et al. 2021, entire). We have also entered into an associated MOU with the Washington Department of Fish and Wildlife (WDFW) and WDNR to ensure the strategy is implemented as agreed to by all prairie conservation partners in the range of the golden paintbrush (Service et al. 2020, entire). The three agencies have authority over these species and will oversee most prairie restoration efforts in Washington, particularly in South Puget Sound. This MOU is expected to facilitate awareness and compliance with the hybridization strategy and guidance by our prairie conservation partners across the range of the golden paintbrush. The formal adoption and implementation of the hybridization strategy and guidance is expected to prevent hybridization from becoming a threat to the golden paintbrush in the foreseeable future. Please see our response to (12) Comment, below, for additional discussion regarding hybridization.

At the time of listing, the potential impacts of climate change on the golden paintbrush were not discussed. The term “climate” refers to the mean and variability of relevant quantities ( i.e., temperature, precipitation, wind) over time (IPCC 2014, pp. 119-120). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate ( e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to internal processes or anthropogenic changes (IPCC 2014, p. 120).

Scientific measurements spanning several decades demonstrate that changes in climate are occurring. In particular, warming of the climate system is unequivocal, and many of the observed changes in the last 60 years are unprecedented over decades to millennia (IPCC 2014, p. 2). The current rate of climate change may be as fast as any extended warming period over the past 65 million years and is projected to accelerate over the next 30 to 80 years (National Research Council 2013, p. 5). Thus, rapid climate change is adding to other sources of extinction pressures, such as land use and invasive species, which will likely place extinction rates in this era among just a handful of the severe biodiversity crises observed in Earth's geological record (American Association for the Advancement of Science (AAAS) 2014, p. 7).

Global climate projections are informative, and in some cases, the only or the best scientific information available for us to use. However, projected changes in climate at the global scale and related impacts can vary substantially across and within different regions of the world ( e.g., IPCC 2013 and 2014, entire) and within the United States (Melillo et al. 2014, entire). Therefore, we use “downscaled” projections when they are available and have been developed through appropriate scientific procedures, because such projections provide higher resolution information that is more relevant to spatial scales used for analyses of a given species (see Glick et al. 2011, pp. 58-61, for a discussion of downscaling).

Climate change trends predicted for the Pacific Northwest (Oregon, Washington, Idaho, and Montana) broadly consist of an increase in annual average temperature; an increase in extreme precipitation events; and, with less certainty, variability in annual precipitation (Bachelet et al. 2011, p. 413; Dalton et al. 2013, pp. 31-38, figure 1.1; Snover et al. 2013, pp. 5-1-5-4).

Based on a 2014 climate change vulnerability assessment, the golden paintbrush was considered “presumed stable” (Gamon 2014, entire). After the completion of the SBR (Service 2019, entire), a new assessment was conducted on sites in Washington, which evaluated only the populations extant at the time of listing (11 extant and 11 populations that were extirpated; none of the 10 outplanted sites in Washington); this new assessment considered golden paintbrush as “highly vulnerable” to climate change (Young et al. 2016, entire; Kleinknecht et al. 2019, entire). Please see our response to (10) Comment, below, for more discussion regarding this new information.

Prolonged or more intense summer droughts are likely to increase in the Pacific Northwest due to climate change (Snover et al. 2013, p. 2-1). Regional climate change literature suggests that prairie ecosystems were established under warmer and drier conditions and are unlikely to be disadvantaged from future increased summer drought (Bachelet et al. 2011, p. 417). However, although the golden paintbrush senesces as the prairies dry out in the summer, increased intensity or length of drought conditions will likely stress plants and increase mortality, resulting in reduced numbers of individuals in populations at less-than-optimal sites (Kaye 2018, in litt.).

As is the case with all stressors we assess, even if we conclude that a species is currently affected or is likely to be affected in a negative way by one or more climate-related impacts, it does not necessarily follow that the species meets the definition of an “endangered species” or a “threatened species” under the Act.

Predicted environmental changes resulting from climate change may have both positive and negative effects on the golden paintbrush, depending on the extent and type of impact and depending on site-specific conditions within each habitat type. The primary predicted negative effect includes drought conditions resulting in inconsistent growing seasons. Likewise, future temperature changes may influence the timing of native prairie plant phenology, which could lead to asynchronies with pollinators (Reed et al. 2019, entire). This effect will likely be buffered by the ability of the golden paintbrush to survive in a range of soil conditions, as is evident by its establishment on a wide variety of sites across its 300-mile geographic range, with a number of different host plants, and under a range of precipitation levels. We have not identified any predicted environmental effects from climate change that may be positive for the golden paintbrush at this time. Climate change could result in a decline or change in bumble bee diversity within the range of the golden paintbrush (Soroye et al. 2020, entire); the bumble bee is an important pollinator for the golden paintbrush (Service 2019, pp. 6-7). However, there are limited data at this time to indicate the potential loss of bumble bee diversity is a specific and present threat to the golden paintbrush. Also, observations of reduced seed production at some Washington sites in recent years (2019-2021) could be the result of recent drought events, although it remains unclear how these observations translate to population abundance and trends over time. Golden paintbrush populations can experience high variability in abundance between years (Fertig 2021, pp. 24-27), and while climate change is a stressor, given the species' high abundance and distribution across the 300-mile range from British Columbia to Oregon, we expect the golden paintbrush has sufficient resiliency and redundancy to remain viable into the foreseeable future. Establishing plant populations such as the golden paintbrush across the full geographic and climatic range of Pacific Northwest prairies has been identified as a “climate-smart” strategy given the extensive north-south range encompassing variable temperature and precipitation patterns (Bachelet et al. 2011, p. 420). The species appears to have sufficient resiliency and redundancy across its range to maintain sufficient viability during drought years. As evidence, the last 4 years of monitoring (2017-2020) represent the 4 years with greatest abundance rangewide despite extreme drought experienced between 2015 and 2016 in Oregon and Washington (Fertig 2021, p. 30; National Oceanic and Atmospheric Administration National Integrated Drought Information System (NOAA NIDIS) 2022, entire). In addition, the year 2020 also represents the second-highest abundance of golden paintbrush in the State of Washington at 202,208 flowering plants, which was a 47.8 percent increase from 136,846 in 2019. Additionally, several outplantings have been initiated at new locations since 2018 in Washington, and we are continuing to work with our partners to plan new outplantings across the species' range that will further add to the species' resiliency and redundancy.

In summary, climate change is affecting, and will continue to affect, temperature and precipitation events within the range of the golden paintbrush. The extent, duration, and impact of those changes are unknown, but could potentially increase or decrease precipitation in some areas and increase temperatures found within the range of the golden paintbrush. Golden paintbrush may experience climate change-related effects in the future, most likely at the individual or local population scale; however, we anticipate the species will remain viable, because: (1) It is more resilient than at the time of listing as a result of increased abundance, number of sites, and geographic distribution in a variety of ecological settings, contributing to the species' resiliency, redundancy, and representation; (2) available information indicates the golden paintbrush is somewhat adaptable to some level of future variation in climate conditions (Service 2019, pp. 22-25, 45); (3) there are ongoing efforts to expand the golden paintbrush to additional suitable sites across the species' range; and (4) we now have the technical ability to effectively and more readily establish populations, which could help to mitigate future population losses. Therefore, based upon the best available scientific and commercial information, we conclude that climate change does not currently pose a threat to the golden paintbrush, nor is it likely to become a threat to the golden paintbrush in the foreseeable future (next 30 years).

For current federally listed species, we consider existing regulatory mechanisms relative to how they reduce or ameliorate threats to the species absent the protections of the Act. Therefore, we examine whether other regulatory mechanisms would remain in place if the species were delisted, and the extent to which those mechanisms will continue to help ensure that future threats will be reduced or eliminated. In the final listing rule (62 FR 31740; June 11, 1997), we noted that habitat management for the golden paintbrush was not assured, despite the fact that most populations occurred in areas designated as reserves or parks that typically afforded the golden paintbrush and its habitat some level of protection through those designations. As discussed in our SBR (Service 2019, pp. 47-52), the threat of habitat loss from potential residential or commercial development has decreased since the time of listing due to the establishment of new golden paintbrush populations on protected sites. Although a few privately owned sites are still at some potential risk, development is no longer considered a significant threat to the viability of the golden paintbrush due to the number of sites largely provided protection from development (Service 2019, pp. 12-14).

Sikes Act —The Sikes Act (16 U.S.C. 670 et seq. ) provides the authority and defines the responsibilities to facilitate effectual planning, development, maintenance, and coordination of wildlife, fish, and game conservation and rehabilitation on military installations. The Sikes Act requires that conservation goals are cooperatively developed and recorded in a planning document called an integrated natural resources management plant (INRMP). One golden paintbrush population currently occurs on a Federal military installation (Forbes Point, Naval Air Station Whidbey Island in Island County, Washington) and is managed under an INRMP (U.S. Department of Defense (USDOD) 2013, pp. 3-7) authorized by the Sikes Act. Special management and protection requirements for golden paintbrush habitat in the INRMP include maintenance of a 10-ac management area for the species, including: maintaining and improving a fence around the population to exclude both people and herbivores; posting signs that state the area is accessible to “authorized personnel only”; mowing and hand-cutting competing shrubs in the area; outplanting nursery-grown plants from seeds previously collected onsite; and implementing additional habitat management actions, such as controlled burns or herbicide control of competing vegetation, that are identified in the future to enhance the golden paintbrush population (USDOD 2013, pp. 3-7). These protections are effective in protecting the golden paintbrush on this site and are expected to continue in the absence of protections under the Act because the Sikes Act mandates the Department of Defense to conserve and rehabilitate wildlife, fish, and game on military installations.

National Wildlife Refuge System Improvement Act —Ten golden paintbrush populations currently occur on National Wildlife Refuge (NWR) lands (Dungeness NWR in Washington; and Ankeny, William L. Finley, Tualatin River, and Baskett Slough NWRs in Oregon). As directed by the National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105-57), refuge managers have the authority and responsibility to protect native ecosystems, fulfill the purposes for which an individual refuge was founded, and implement strategies to achieve the goals and objectives stated in management plans. For example, William L. Finley NWR (Benton County, Oregon) includes extensive habitat for the golden paintbrush, including four known populations, while a number of additional NWRs in Oregon (Ankeny NWR, Marion County; Tualatin River NWR, Washington County; and Baskett Slough NWR, Polk County) and Washington (Dungeness NWR, Clallam County) each also support at least one golden paintbrush population.

The Willamette Valley comprehensive conservation plan (CCP) for William L. Finley, Ankeny, and Baskett Slough NWRs is a land management plan finalized in 2011 with a 15-year term that directs maintenance, protection, and restoration of the species and its habitat and identifies specific objectives related to establishment of populations and monitoring, as well as related habitat maintenance/management (Service 2011, pp. 2-45-2-46, 2-66-2-70). Given the 15-year timeframe of CCPs, these protections would remain in place until at least 2026, regardless of the golden paintbrush's Federal listing status.

Tualatin River NWR finalized a CCP in 2013 (Service 2013a, entire), and although it does not have conservation actions specific to the golden paintbrush identified in the plan, it does have maintenance and management activities for oak savanna habitat on the NWR, which supports the golden paintbrush (Service 2013a, pp. 4-9-4-10). These activities include various methods ( e.g., mechanical and chemical) for reducing encroachment of woody species, controlling nonnative and invasive plant species, and reestablishing native grasses and forbs. Given the 15-year timeframe of CCPs, protections outlined in the Tualatin River NWR CCP are expected to remain in place until at least 2028, regardless of the golden paintbrush's Federal listing status.

Dungeness NWR also finalized a CCP in 2013 (Service 2013b, entire). The CCP does not have any conservation actions specific to the golden paintbrush identified; however, it does identify general actions taken to control nonnative and invasive plant species that invade habitats on the refuge, including those inhabited by the golden paintbrush (Service 2013b, pp. 4-44-4-45). The golden paintbrush population at this NWR's headquarters continues to be maintained and protected.

In addition to specific protections for the golden paintbrush provided under CCPs, the species is permanently protected by the mission of all NWRs to manage their lands and waters for the conservation of fish, wildlife, and plant resources and their habitats.

National Park Service Organic Act —One golden paintbrush site currently occurs on National Park Service (NPS) lands (American Camp, San Juan Island National Historical Park, Washington). The NPS Organic Act of 1916 (54 U.S.C. 100101 et seq. ), as amended, states the NPS will promote and regulate the use of the National Park system to conserve the scenery, natural and historic objects, and wildlife therein, to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations (54 U.S.C. 100101(a)). Further, in title 36 of the Code of Federal Regulations (CFR) at § 2.1(a)(1)(ii), NPS regulations specifically prohibit possessing, destroying, injuring, defacing, removing, digging, or disturbing from their natural state plants, or the parts or products thereof, on lands under NPS jurisdiction. This prohibition extends to the golden paintbrush where it exists on NPS-managed lands. In addition, the General Management Plan for the San Juan Island National Historical Park includes the NPS's goal of restoring a prairie community that support functions and values of native habitat, including habitat for native wildlife and rare species, such as the golden paintbrush (NPS 2008, p. 249).

Endangered Species Act —The golden paintbrush often co-occurs with other plant and animal species that are listed under the Act, such as the endangered Willamette daisy and endangered Taylor's checkerspot butterfly. Therefore, some of the general habitat protections ( e.g., section 7 consultation and ongoing recovery implementation efforts, including prairie habitat restoration, maintenance, and protection) for these other prairie-dependent, listed species will indirectly extend to some golden paintbrush sites when we delist the golden paintbrush. We acknowledge that some sites that support Taylor's checkerspot butterfly will not be available for golden paintbrush due to the threat of hybridization between golden and harsh paintbrush; however, given that hybridization has only impacted populations in the South Puget Sound area of Washington, and the extensive range of golden paintbrush in other areas where hybridization is currently not a threat, we assume that management for prairie-dependent species across the range will benefit golden paintbrush beyond delisting. Likewise, the hybridization strategy and guidance document and our partnership with State agencies in Washington will ensure that hybridization is minimized or avoided into the future (Service et al. 2020, entire; Service et al. 2021, entire).

Protections in Canada —The golden paintbrush in Canada is currently federally listed as “endangered” under the Species at Risk Act (SARA) (COSEWIC 2007, entire). SARA regulations protect species from harm, possession, collection, buying, selling, or trading (Statutes of Canada 2002, c. 29). SARA also prohibits damage to or destroying the habitat of a species that is listed as an endangered species. The population at Trial Island is on Canadian federal lands protected under SARA (COSEWIC 2011, in litt., p. 5). The golden paintbrush is not currently protected under any provincial legislation in British Columbia. However, the golden paintbrush occurs in the ecological reserves that include Trial Island and Alpha Islet, which are protected under the British Columbia Park Act (COSEWIC 2011, in litt., p. 5). The British Columbia Park Act allows lands identified under the Ecological Reserve Act to be regulated to restrict or prohibit any use, development, or occupation of the land or any use or development of the natural resources in an ecological reserve (Revised Statutes of British Columbia 1996, c. 103). This includes particular areas where rare or endangered native plants and animals in their natural habitat may be preserved.

Washington Natural Heritage Plan —Washington State's Natural Heritage Plan identifies priorities for preserving natural diversity in Washington State (WDNR 2018, entire). The plan aids WDNR in conserving key habitats that are currently imperiled, or are expected to be imperiled in the future. The prioritization of conservation efforts provided by this plan is expected to remain in place if we delist the golden paintbrush. The golden paintbrush is currently identified as a priority 2 species (species likely to become endangered across their range or in Washington within the foreseeable future) in the State's 2018 plan (WDNR 2018a, in litt., p. 4), which is a recent change from the species' priority 1 designation (species are in danger of extinction across their range, including Washington) in 2011 (WDNR 2018b, in litt., p. 2). The State's conservation status is not necessarily impacted by Federal delisting and is ultimately at the discretion of WDNR. We anticipate that WDNR will continue to monitor the species where it occurs on their own lands and more broadly as a partner in the post-delisting monitoring plan. We also anticipate that WDNR will continue to actively manage their golden paintbrush sites because these areas are not only important to the long-term conservation of golden paintbrush, but also to other at-risk prairie species.

Washington State Park Regulations and Management —In Washington, State park regulations, in general, require an evaluation of any activity conducted on a park that has the potential to damage park resources, and require mitigation as appropriate (see title 352 of the Washington Administrative Code). Wildlife, plants, all park buildings, signs, tables, and other structures are protected; removal or damage of any kind is prohibited (Washington State Parks and Recreation Commission 2019, in litt., p. 2). One golden paintbrush site currently exists on Fort Casey Historical State Park. One of the objectives for natural resources on Fort Casey Historical State Park under the Central Whidbey State Parks Management Plan is to protect and participate in the recovery of the golden paintbrush, including protecting native plant communities, managing vegetative succession, and removing weeds through integrated pest management (Washington State Parks and Recreation Commission 2008, p. 15). The plan further states that areas where the golden paintbrush occurs will be classified as “heritage affording a high degree of protection,” and the Nass Natural Area Preserve (also known as Admiralty Inlet Natural Area Preserve) is included in the long-term park boundary to also assure continued preservation of the golden paintbrush in this area (Washington State Parks and Recreation Commission 2008, p. 26).

Oregon Revised Statutes (ORS), Chapter 564 —Oregon Revised Statutes, chapter 564, “Wildflowers; Threatened or Endangered Plants,” requires State agencies to protect State-listed plant species found on their lands. Any land action on Oregon land owned or leased by the State, for which the State holds a recorded easement, and which results, or might result, in the taking of an endangered or threatened plant species, requires consultation with Oregon Department of Agriculture staff (see ORS section 564.115). The golden paintbrush is currently State-listed as endangered in Oregon. At this time, no populations of the golden paintbrush are known to occur on State lands in Oregon. However, should populations of the golden paintbrush occur on Oregon State lands in the future, the removal of Federal protections for the golden paintbrush would not affect State protection of the species under this statute.

In summary, conservation measures and existing regulatory mechanisms have minimized, and are continuing to address, the previously identified threats to the golden paintbrush, including habitat succession of prairie and grassland habitats to shrub and forest lands; development of property for commercial, residential, and agricultural use; recreational picking (including associated trampling); and herbivory (on plants and seeds). As indicated above, we anticipate the majority of these mechanisms will remain in place regardless of the species' Federal listing status.

When multiple stressors co-occur, one may exacerbate the effects of the other, leading to effects not accounted for when each stressor is analyzed individually. The full impact of these synergistic effects may be observed within a short period of time, or may take many years before it is noticeable. For example, high levels of predation (herbivory) on the golden paintbrush by deer could cause large temporary losses in seed production in a population, but are not generally considered to be a significant threat to long-term viability, as populations that are relatively large and well-distributed should be able to withstand such naturally occurring events. However, the relative impact of predation (herbivory) by deer may be intensified when it occurs in conjunction with other factors that may lessen the resiliency of golden paintbrush populations, such as prolonged woody species encroachment (prairie succession); extensive nonnative, invasive plant infestations; or possible increased plant mortality resulting from the effects of climate change ( i.e., prolonged drought).

Although the types, magnitude, or extent of potential cumulative impacts are difficult to predict, we are not aware of any combination of factors that is likely to co-occur resulting in significant negative consequences for the species. We anticipate that any negative consequence of co-occurring threats will be successfully addressed through the same active management actions that have contributed to the ongoing recovery of the golden paintbrush and the conservation of regional prairie ecosystems that are expected to continue into the future.

To assess golden paintbrush viability, we evaluated the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). We assessed the current resiliency of golden paintbrush sites (Service 2019, pp. 52-63) by scoring each site's management level, site condition, threats addressed, site abundance of plants, and site protection, resulting in a high, moderate, or low condition ranking. One-third of sites were determined to have a high condition ranking, one-third a moderate condition ranking, and one-third a low condition ranking (Service 2019, p. 63). This represents 32 sites in a moderate or higher condition based on those important factors directly informing resiliency of individual sites or populations within the SBR (Service 2019, p. 63). This number of sites exceeds the 15 to 20 populations in stable condition on protected lands that the recovery criteria identified as needed to achieve recovery; this therefore provides sufficient resiliency for the species.

Golden paintbrush sites are well-distributed across the species' historical range and provide representation across the four geographic areas within that range (British Columbia, North Puget Sound, South Puget Sound, and the Willamette Valley). Multiple sites or populations exist within each of these geographic areas, providing a relatively secure level of redundancy across the historical range, with the lowest relative level of redundancy within British Columbia. The resiliency of the golden paintbrush is variable across the historical range given differences in site or population abundance, level of management at a site, and site condition. The best scientific and commercial data available indicate that the golden paintbrush is composed of multiple populations, primarily in moderate to high condition (Service 2019, p. 63), which are sufficiently resilient, well-distributed (redundancy and representation), mostly in protected areas, and managed such that they will be relatively robust or resilient to any potential cumulative effects to which they may be exposed.

In our June 30, 2021, proposed rule (86 FR 34695), we requested that all interested parties submit written comments on the proposal by August 30, 2021. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposed rule. Newspaper notices inviting general public comment were published in The Oregonian on July 11, 2021, and the Seattle Times on July 9 through July 13, 2021. We did not receive any requests for a public hearing. All substantive information provided during the comment period either has been incorporated directly into this final rule or is addressed below.

We received 10 public comments in response to the proposed rule. We reviewed all comments we received during the public comment period for substantive issues and new information regarding the proposed rule. Eight commenters provided substantive comments or new information concerning the proposed delisting for golden paintbrush. Below, we provide a summary of the substantive issues raised in the public comments we received; however, comments outside the scope of the proposed rule, and those without supporting information, do not warrant an explicit response and, thus, are not presented here. Identical or similar comments have been consolidated into responses based on comment theme.

(1) Comment: We received multiple comments from WDNR and others stating that golden paintbrush has not met all the recovery criteria specified in the recovery plan.

Response: Recovery plans provide roadmaps to species recovery but are not required in order to achieve recovery of a species, or to evaluate it for delisting. In addition, recovery plans are also nonbinding documents that rely on voluntary participation from landowners, land managers, and other recovery partners. A determination of whether a valid, extant species should be delisted is made solely on the question of whether it meets the Act's definitions of an “endangered species” or a “threatened species.” Recovery criteria and objectives are developed based on the information known at that time, and much is learned about a species between the time the recovery plan is developed and the time we reassess whether it meets the Act's definition of endangered or threatened. Based on the best available information, we have determined that golden paintbrush no longer meets either of these definitions.

(2) Comment: We received several comments from WDNR and others questioning the metric in recovery criterion 1 to evaluate a stable population, suggesting it was no longer based on the best available science and providing examples of populations that have declined. A comment from WDNR also presented updated information on progress towards meeting this criterion from 2018-2020.

Response: We updated this final rule to reflect the most up-to-date progress toward this criterion (see discussion under Criterion 1 for Delisting, above). As discussed earlier in this document, that criterion states that to be deemed stable, a population must maintain a 5-year running average population size of at least 1,000 individuals, where the actual count never falls below 1,000 individuals in any year. The 2007 5-year review recommended counting only flowering individuals and incorporating a stable or increasing population trend as based on a zero or positive overall trend over 5 years (Service 2007, p. 3). While we did not officially amend or make an addendum to the recovery plan, we accepted that the most practical way to determine population abundance was to count flowering plants. The recommendation to evaluate populations based on stable or increasing trends in abundance was not formally incorporated into an amended recovery plan. However, in addition to evaluating progress toward the recovery criteria, we also evaluated in the SBR (Service 2019, entire) the resiliency, redundancy, and representation across the species' range in relation to the potential threats to the species. In the SBR, we evaluated the current condition of the species at sites using various parameters, including the level of management, site condition, threats addressed, abundance, and site protection status. We elicited the advice of experts to evaluate sites based on these parameters. Populations were also separately evaluated in the SBR with a site viability index that took into account population stability and trend. All of this information was considered when evaluating and making our determination as to whether delisting is warranted.

Some populations that once maintained higher levels of abundance have declined, and that abundance can vary markedly across populations and annually within populations (Fertig 2021, p. 23). Despite this variability in abundance, the species has sufficient resiliency and redundancy across its range to maintain viability. In the current condition analysis of the SBR, 16 sites were ranked as high condition, with 9 of these sites in Oregon and 7 in Washington. This distribution of high condition sites across the range of the species contributes to the redundancy of golden paintbrush. We developed a post-delisting monitoring plan that will help verify that golden paintbrush remains secure into the future without the protections of the Act.

(3) Comment: The WDNR stated opposition to the proposed delisting rule. Despite improvements in species condition from the time of listing, the WDNR stated that delisting was premature based on concerns regarding uncertainties related to golden paintbrush's long-term abundance and viability. The WDNR and other commenters expressed concern about the funding available for continued management and monitoring once delisted.

Response: Our review of the best available scientific and commercial data indicates that the threats to the golden paintbrush have been eliminated or reduced to the point that the species no longer meets the definition of an endangered or threatened species under the Act (see Determination of Golden Paintbrush's Status, below). Individual sites may experience variability in abundance, and while some have declined, others have increased in recent years (see Range, Distribution, Abundance, and Trends of Golden Paintbrush, above). Despite variability in abundance, the successful establishment of outplanted golden paintbrush populations, primarily in moderate to high condition, and mostly in protected areas with management help to increase the resiliency, redundancy, and representation of the species and contribute to its viability. For more discussion of golden paintbrush's population trends and viability, see Range, Distribution, Abundance, and Trends of Golden Paintbrush Summary of Biological Status and Threats, and Recovery Criteria, above.

Golden paintbrush is a management-dependent species, and even with sufficient resources, populations can decline due to various factors. Although the majority of populations are under conservation ownership that includes management practices to preserve essential characteristics of golden paintbrush habitat, declines can still occur. Conservation management will continue in these habitats, but not necessarily to the same degree at all locations due to variations in capacity, need, or constraints. As part of the current condition analysis in the SBR, the management level was assessed for each site based on expert elicitation and the best available information (see Service 2019, pp. 40-44). This analysis indicated that the majority of the sites will receive, at minimum, maintenance to preserve essential characteristics of golden paintbrush habitat, with several sites operating under long-term management plans with committed resources for management (see Service 2019, pp. 40-44). The number of and distribution of populations established across the range contributes to the resiliency and redundancy of the species, and its ability to maintain sufficient viability despite some variability in management. Management will also continue to adapt over time to address future challenges in maintaining and restoring prairie ecosystems. Funding for some management activities will likely decline post-delisting as some funding sources are focused on the recovery of listed species; however, the commitments of our partners to golden paintbrush conservation, as well as the number of sites sharing similar habitat and conservation objectives for other prairie species of concern, will help ensure continued management of the species into the future. Additionally, our post-delisting monitoring plan will assess abundance as well as site management and protection over a minimum 5-year period after delisting.

Regarding continued monitoring by WNHP, golden paintbrush is currently State-listed as priority 2 in the Washington State Natural Heritage Plan, and State listing and prioritization is ultimately at the discretion of the State. Like many State-listed plant species and other plant species of State concern, we anticipate that the WDNR through its WNHP and ODA will continue to monitor golden paintbrush in Washington and Oregon, respectively, although monitoring efforts may not occur as often as they have in the past.

(4) Comment: Several commenters stated concern over the likelihood for post-delisting management to continue and be effective. Comments included site-specific examples such as Forbes Point, American Camp, Rocky Prairie, and Glacial Heritage where decline in golden paintbrush abundance due to invasion by exotic grasses or other unknown factors occurred despite support or management for the species.

Response: As we describe above in our response to Comment (3) management will also continue to adapt over time to address future challenges in maintaining and restoring prairie ecosystems and the PDM plan will assess abundance as well as site management and protection over a minimum 5-year period after delisting. Please see our response to Comment (3), above, for a discussion of variation in abundance and management for the species and our response to Comment (5), below, about declines in abundance in some populations.

Regarding the site-specific examples provided by commenters, the Forbes Points and American Camp sites are in low condition, the Rocky Prairie site is in moderate condition and the Glacial Heritage site is in high condition based on our current condition analysis in the SBR which considered management level among other factors that can impact site condition including habitat condition, threats, abundance, and site protection status (Service 2019, p. 54).

(5) Comment: We received comments from WDNR and others providing updated survey data from 2019 and 2020 for outplanted populations, describing the variable survey effort and an overall decline in abundance from 2018.

Response: WDNR and others provided updated abundance information for outplanted populations since 2018, which we considered and incorporated into this Final Rule (see Range, Distribution, Abundance, and Trends of Golden Paintbrush, above). As described in their comments, outplanted populations reached their highest peak to date in 2018 at 562,726 flowering plants and declined to 325,320 plants in 2019. In 2020, there was a reduction of survey effort, and 25 populations in Oregon were not surveyed due to COVID restrictions. If 2019 data were substituted for the 25 populations in Oregon that were not surveyed in 2020, it is assumed, based on extrapolation, that the estimated 2020 rangewide abundance would be greater than 370,000 plants (Fertig 2021, p. 22). Even without the 25 sites that were not monitored in 2020, the last 4 years of monitoring (2017-2020) represent the 4 years with greatest abundance rangewide. The year 2020 also represents the second-highest abundance of golden paintbrush in Washington State at 202,208, which was a 47.8 percent increase from 136,846 in 2019. Several new outplantings have been initiated since 2018, and we are continuing to work with our partners to plan new outplantings in Oregon and Washington. Individual sites may experience variability, and while some have declined, others have increased in recent years (Service 2019, pp. 27-29; Fertig 2021, pp. 11-29). The species appears to have sufficient resiliency and redundancy across its range to maintain sufficient viability, despite variability in abundance.

(6) Comment: We received a comment from WDNR and several other commenters highlighting concerns over population declines since 2012 in the populations extant at the time of listing.

Response: At the time of listing in 1997, there were 10 known golden paintbrush populations in Washington and British Columbia, and the species was considered extirpated from Oregon. The SBR identified 48 populations established across the range of the species in 2018, including 26 populations established in Oregon (Service 2019, p. 11). The ten populations extant at the time of listing make up a small proportion of the current total abundance of this species established across its range. While many of the historical populations across the range of the species were likely extirpated due to land-use changes, such as development and agriculture, along with encroachment of trees and other woody plants, the persistence of these ten extant populations may be due to their protected locations that are not available for conversion for agriculture or development. Studies suggest that like other rare species, golden paintbrush may have been eliminated from the most suitable sites with the remaining extant populations relegated to marginal sites that did not provide optimal habitat at the time of listing (Falk et al. 1996, p. 472; Dunwiddie and Martin 2016, p. 12). Sites with deeper soils and more moisture availability, along with a more diverse native plant community are more likely to support the species (Dunwiddie and Martin 2016, entire), and successful reintroduction to prairies in former agriculture lands with deeper soils have had great success (Delvin 2013, p. 7). Thirty-seven outplanted populations of golden paintbrush have been established and represent the majority of the abundance of the species across its historical range, including 26 populations in Oregon where the species was previously extirpated. These outplanted populations help to increase the resiliency, redundancy, and representation of the species and contribute to its viability. While the 10 sites extant at the time of listing remain and continue to contribute to the species' recovery, these sites likely do not represent the ideal site characteristics for the species. Although the 10 populations at the time of listing have exhibited decline, the efforts at outplanted sites across the range represent the recovery of golden paintbrush. For more information, see the discussion above on populations extant at the time of listing under Range, Distribution, Abundance, and Trends of Golden Paintbrush.

(7) Comment: We received several comments addressing the difficulties of establishing new populations, and highlighting the variability in seeding success, even on sites with established populations.

Response: We identified the difficulties in establishing new populations and the variability in seeding success in the SBR for golden paintbrush (Service 2019, p. 51) and took this into account in our determination. It is not uncommon to have failed reintroduction or introduction attempts for any species. For golden paintbrush, despite some outplanting failures, outplanted populations have been largely successful and represent the majority of the abundance of golden paintbrush across the range. Furthermore, in Oregon, where the species was previously extirpated, 26 populations have been established due to outplanting. Golden paintbrush continues to be outplanted by our partners at other conservation sites with the expectation of establishing even more populations across the species' range in the future.

(8) Comment: The WDNR and several other commenters disagreed that direct seeded populations may initially undergo a period of rapid growth followed by a period of decline to a more stabilized number. The commenters stated that it is unknown if population stabilization will occur.

Response: While there may be an initial period of rapid growth following an establishment period, population trends following a peak appear to vary greatly by site (Fertig 2021 pp. 24-27). After some large declines, several sites rangewide increased from 2019 to 2020, although not to the level of the initial spike in abundance. While some populations show a boom-bust population trend as was documented at some outplanted sites in Oregon (Kaye 2019, pp. 26-27), not all populations across the range are experiencing consistent decline. Rangewide abundance from 2017-2020 represent the four greatest abundances across all of the years monitored, including 25 sites that were not monitored in Oregon in 2020 (Fertig 2021, p. 22). As some commenters mentioned, the addition of seed to some of these populations complicates the assessment of population trends over time. Furthermore, population variability seen following the initial peak could be attributed to other impacts to the species from other stressors such as drought, herbivory, or competition from invasive species at the site level. Taken together, we find that the available information supports that while golden paintbrush populations may peak in abundance following initial establishment and may decline to lower levels, the pattern does not suggest a species-level decline overall rangewide. We will continue to monitor populations over 5 years using the post-delisting monitoring plan, which will contribute data and increase our understanding of population dynamics and persistence over those years.

(9) Comment: The WDNR commented that there was no mention of the viability index developed by Dr. Tom Kaye for golden paintbrush in the proposed rule. In addition to providing us with 2019 and 2020 golden paintbrush survey data and their updated viability index for the species, the WDNR stated that as of 2020, 9 of 52 populations had a viability index score of 3, indicative of populations with positive growth over time, relatively stable numbers, and greater than 1,000 flowering individuals averaged over 5 years.

Response: The Service considered the viability index developed by Dr. Tom Kaye and summarized this information in the SBR which provides the best available information to inform our listing decision under the Act. In addition, in response to the information submitted by the WDNR, we re-calculated the viability index with data that include the most-recent survey year (either 2019 or 2020), since many sites were not surveyed in 2020. This resulted in 10 out of 46 populations having a score of three, an increase from the 6 out of 43 populations with a score of 3 identified in the SBR, indicating there are now more populations with high viability than what we identified in 2018. As we mentioned in the SBR, indices of this type are useful for synthesizing several pieces of information, but they can simplify or oversimplify available information. This index was intended to provide a broad evaluation of the species' population size and stability, and while these data were taken into consideration, they were considered along with the current condition analysis in the SBR. Additionally, we used updated survey data to evaluate the status relative to the recovery criteria (see Recovery Criteria, above).

(10) Comment: We received several comments (from WDNR and others) expressing concern over potential impacts of climate change on the species. We also received several comments from WDNR and others highlighting WDNR's 2019 report updating an earlier climate change vulnerability assessment of golden paintbrush.

Response: In this final rule, we have incorporated the new information from the climate change vulnerability assessment (Kleinknecht et al. 2019, entire) and have added to our discussion on climate change. The Service reviews the best scientific and commercial information available when conducting a threats analysis. In considering what factors might constitute a threat, we look beyond the mere exposure of the species to the factor to determine whether the exposure causes actual impacts to the species. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that listing (or maintaining a currently listed species) on the Federal Lists of Endangered or Threatened Wildlife and Plants is appropriate. In determining whether a species meets the definition of a threatened or endangered species, we must evaluate all identified threats by considering the species' expected response 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, as well as the cumulative effect of the threats.

Drought, particularly in the spring and summer, likely impacts golden paintbrush populations, with potentially larger impacts on populations with low viability. Research conducted on microsite needs for the species suggested that deeper soils with high richness of native perennial forbs were more likely to support the species (Dunwiddie and Martin 2016, entire). Establishing populations can be difficult, particularly with annual variability in climate and drought seen in recent years, and as a result, multiple outplantings have failed. Despite this, seven new outplantings have been initiated since 2018 in Washington, including one on Protection Island. While it is difficult to assess the success of these outplantings due to variable monitoring efforts in recent years, two have been noted as likely unsuccessful due to presence of nonnative weedy annuals, but the others show promise (Martin 2021, pp. 10, 23-25).

On a rangewide scale, the species demonstrates sufficient resiliency and representation to adapt to projected changes in climate. We have established 17 populations with a 5-year average of greater than 1,000 individuals over the species' range from British Columbia to Oregon, on sites representing environmental diversity consisting of wet and dry prairie, and valley foothills (Kaye 2019, p. 10). Total abundance was greater than 325,320 flowering plants across the range in 2019, and 288,699 in 2020 (excluding 25 populations that were not surveyed due to COVID restrictions); substituting 2019 data for populations not surveyed in 2020 yields an estimated abundance of greater than 370,000 flowering plants rangewide (Fertig 2021, p. 22). Despite drought seen in recent years, abundance of populations extant at the time of listing increased in 2020, and Washington populations reached their second-highest total abundance of 202,208 flowering plants, a 47.8 percent increase from 2019 (Fertig 2021, p. 11). Despite evidence of the potential effects of drought on golden paintbrush abundance in recent years (see Fertig 2021, p. 30; Martin 2021, p. 6), periods of drought have not been documented to consistently impact abundance across populations.

Regional climate change literature suggests that prairie ecosystems were established under warmer and drier conditions and are unlikely to be disadvantaged from future increased summer drought (Bachelet et al. 2011, p. 417). Golden paintbrush populations can experience high variability in abundance between years (Fertig 2021, pp. 24-27), and while climate change is a stressor, given the species' high abundance and distribution across the range from British Columbia to Oregon, golden paintbrush should have sufficient resiliency and redundancy to remain viable into the future. Establishing plant species such as the golden paintbrush to populate the full geographic and climatic range of Pacific Northwest prairies has been identified as a “climate-smart” strategy (Bachelet et al. 2011, p. 420). The post-delisting monitoring plan will facilitate the evaluation of the species beyond delisting and detect unanticipated levels and/or extent of declines in abundance.

Since the publication of the proposed rule (86 FR 34695; June 30, 2021), we received an updated climate change vulnerability index (CCVI) report from our State partners at the WDNR's Washington Natural Heritage Program (Kleinknecht et al. 2019, entire). This report was provided as a comment from WDNR. We evaluated the report and compared it to a similar assessment that was conducted in 2014 (Gamon 2014, entire). The CCVI was conducted using a NatureServe protocol, which relies on a species' natural history, distribution, and landscape to inform whether and to what degree it will be impacted by climate change (Young et al. 2016, entire). In the 2019 report, golden paintbrush was ranked as “Highly Vulnerable” to climate change, a change from the 2014 report which ranked it as “Presumed Stable” (Kleinknecht et al. 2019, entire; Gamon 2014, entire).

While this 2019 CCVI report has helped inform our decision, it does not change our final determination. The 2019 assessment looked only at a small proportion of the species' range. It assessed only a subset of sites from Washington, based on 22 native occurrences (11 extant and 11 extirpated or historical), not including the 10 outplanted sites in Washington or any of the populations in Oregon. The distribution of points used in the assessment were primarily in North Puget Sound, and given that half of these represent sites that have already undergone extirpation, this report is not necessarily representative of the potential impact on golden paintbrush across its currently occupied range.

Additionally, the guidelines for the CCVI describe that it works best for the scale from the size of a National Park to a State, and at larger scales may mask the vulnerability of local populations to climate change (Young et al. 2016, p. 9). Based on the larger scale of golden paintbrush's range, from Oregon to British Columbia, the CCVI method is not likely to be appropriate to assess climate change vulnerability.

(11) Comment: We received a comment from WDNR and several others expressing concern about the impacts of herbivory on golden paintbrush's viability. Commenters provided examples of impacts at specific sites, the difficulties in managing herbivory, and the potential impacts to seed production.

Response: Herbivory was noted as a threat at the time of listing in 1997, especially due to the limited number (10) of extant populations. Despite having a potential impact on abundance, a total of 48 golden paintbrush populations are now represented across the species' range in a variety of habitats and constitute a large geographic distribution contributing to the species' resiliency and redundancy, and to the species' ability to withstand stochastic events, including herbivory. Active, targeted management may be important in curtailing significant impacts, but it is not likely to occur across all sites at the same level, and it is not intended to result in the complete elimination of herbivory impacts on this species. Despite the recent examples of herbivory provided in the comments and anecdotal observations for specific sites and years, there are no consistent data linking herbivory to population declines, especially at the rangewide scale. Herbivory can vary by site, year, frequency, and level of impacts. Populations of the species will likely retain moderate to high levels of viability given the species' established redundancy across its range and the suitable condition of the habitat despite variable herbivory impacts; however, the post-delisting monitoring plan is designed to help track site-specific management and potential impacts to species abundance for at least 5 years following delisting. For more information, please see the discussion of herbivory under Summary of Biological Status and Threats, above.

(12) Comment: We received a comment from WDNR and others expressing concern over potential impacts of hybridization to golden paintbrush, as well as expressing concern that the hybridization strategy and guidance document was not available for review during the June 30, 2021, proposed rule's public comment period.

Response: Hybridization is a potential threat to golden paintbrush that must continue to be managed, and we continue to work collaboratively with our partners to find solutions and management for sites that are already impacted by hybridization. Although a public commenter noted two sites on Whidbey Island as having potential hybridization impacts given a previous experimental study that seeded both paintbrush species, given low recruitment of harsh paintbrush at these sites, hybridization has never been identified by experts as a concern in those sites.

While the details of the hybridization strategy and guidance were not available during the June 30, 2021, proposed rule's public comment period, when the document was finalized, we organized a public roll-out where we presented details of the hybridization strategy and guidance, answered questions, and highlighted to our conservation partners that comments would be accepted to inform the next iteration of the document to make further improvements to the strategy. The document was posted on our website, and no comments were received. Solutions presented in the hybridization strategy and guidance document include, but are not limited to, preventing hybridization in other geographic areas, implementing a decision-making framework for new sites under consideration for paintbrush plantings, actively managing sites that are hybridized, and mapping the distribution of both golden and harsh paintbrush. Through the MOU and hybridization strategy and guidance document, we and our State agency partners are committed to managing hybridization and working collaboratively with our other prairie conservation partners to ensure this potential threat is adequately managed after the delisting of golden paintbrush.

(13) Comment: We received a comment from WDNR and several others noting the lack of seed production at some populations in recent years (2019-2021), emphasizing the potential for declines given the species' short-lived seed bank and the species' reliance on bumble bees for pollination.

Response: Although we agree with the need to track and better understand the magnitude and extent of possible impacts of reduced seed production, based on the best available information, the observed reduced seed production at some sites does not appear to be resulting in notable demographic changes impacting the resiliency of golden paintbrush populations. Any decline in seed production could negatively impact a golden paintbrush population given its short-lived seedbank, and there are many unknowns associated with the potential effects of climate change on both golden paintbrush and pollinator communities. To date, however, there are uncertainties regarding the frequency, distribution, and scale of the lack of seed production, and uncertainty whether these represent short-term, isolated events or a large-scale change. Likewise, while golden paintbrush is reliant on bumble bees as its primary pollinator, it is unknown if pollinator decline is occurring across the range of golden paintbrush. Two bumble bees identified at the species level in the SBR, Bombus vosnesenskii and B. bifarius, were assessed as stable in the Pacific Northwest, and one bumble bee, B. californicus (sometimes recognized as B. fervidus ), is less common in the Pacific Northwest than historically (Hatfield et al. 2021, pp. 15, 32, 72-73). However, the status and trends of these and other pollinators have not been evaluated in golden paintbrush populations. These anecdotal observations present important information, yet it remains unclear how they translate to trends in population abundance over time and the scope of the impact across the species' range. We do not have information to conclude that these concerns are impacting the species to a degree that would result in the species meeting the Act's definition of either an endangered species or a threatened species. Post-delisting monitoring will enable us to monitor population abundance for at least 5 years after the species has been delisted.

(14) Comment: We received a comment from WDNR and several others expressing concern over the number of small populations (fewer than 100 individuals) and the small size of habitat occupied by golden paintbrush at some sites (less than 1 acre), suggesting that small populations and small patches of habitat should be eliminated from consideration regarding contribution towards recovery.

Response: We describe in the SBR that larger sites are likely better for population viability, as they allow for the development of larger populations and greater genetic diversity (Service 2019, pp. 35-36); however, there is no basis to remove populations existing on less than 1 acre or those with abundance of fewer than 100 individuals from our assessment of sites contributing to recovery. While small populations may inherently have a greater relative risk of extirpation than larger populations, that does not mean they cannot or do not contribute to species recovery. Site abundance is an important consideration with regard to the potential for the species to persist over time, and we used site abundance as part of our analysis of current condition in the SBR (Service 2019, p. 27). These data were incorporated into a population viability index as well as an assessment of current condition, which were both considered when evaluating whether the species needs protections under the Act. Habitat patch size was discussed in the SBR (Service 2019, pp. 35-38), and as noted, there are uncertainties regarding the importance of habitat patch size for populations of golden paintbrush. The number of sites with more than 1,000 individuals and the wide distribution across the species' historical range will likely provide sufficient resiliency and redundancy to protect the species from stochastic events.

(15) Comment: We received multiple comments disagreeing with our evaluation of progress toward recovery criterion 2 and our assessment of the level of protection based on land ownership.

Response: In this final rule, we note that this criterion was not precisely met as stated in the recovery plan (see Criterion 2 for Delisting, above). However, a significantly greater number of populations under conservation-focused ownership provide protection to either the species or its habitat compared to the minimum number identified in the criterion; this will help the species retain sufficient viability into the future. Forty-five of the 48 golden paintbrush populations are in either public ownership; are owned by a conservation-oriented, nongovernmental organization; or are under conservation easement (Service 2019, p. 62). This number is much higher than the number (15) required to provide protection in the recovery plan's criterion 2. Such ownership is expected to protect sites from development and land use that would have long-term, wide-ranging deleterious effects on this species. Prairies are management-dependent habitats, and while habitat management will likely continue to occur across the majority of the sites, it will not necessarily occur to the same degree due to variations in capacity, need, or constraints across sites. We have developed a post-delisting monitoring plan to monitor abundance, site management, and the protection status of populations over at least 5 years following delisting.

(16) Comment: We received multiple comments expressing concern regarding the potential of recovery sites being shared between golden paintbrush and Taylor's checkerspot butterfly, given the threat of hybridization between golden paintbrush and harsh paintbrush, the latter a common host plant for Taylor's checkerspot butterfly.

Response: Sites that support Taylor's checkerspot butterfly with harsh paintbrush will not be available to support golden paintbrush. However, there may be opportunities for Taylor's checkerspot butterfly and golden paintbrush to share sites, particularly if other hosts plants (in addition to golden paintbrush) are used, including English plantain ( Plantago lanceolata ). Likewise, sites in Oregon that have golden paintbrush and other host plants do support populations of Taylor's checkerspot butterfly. In this final rule, we address the fact that hybridization with harsh paintbrush has led to the abandonment of three recovery sites for golden paintbrush. Hybridization is a serious potential threat, and we have entered into an MOU concerning hybridization with our State partners (WDFW and WDNR) and created a hybridization strategy and guidance document to ensure the threat of hybridization with harsh paintbrush is managed and coordinated between partners into the future.

(17) Comment: We received several comments providing information on recent difficulties with seed availability at some sites, the potential impacts to nursery seed production, and challenges with seed production.

Response: These observations are concerning given the short-lived seedbank of the species; however, it remains unclear if the local, episodic events (due to herbivory or drought) represent a new long-term scenario with consistent impacts across the range of the species. Our post-delisting monitoring plan will direct efforts to track populations to help determine if these observations continue and whether or not there are broader impacts to golden paintbrush.

If populations of golden paintbrush decline below a certain threshold, seed collection from certain sites could prove difficult or inadvisable, and seed production for this species could be affected. Seed production efforts might need to be supplemented by some outplanted populations that originated from the populations extant at the time of listing and could incorporate increased genetic diversity into nursery production (St. Clair et al. 2020, pp. 587-590). While a comment highlighted past difficulties in seed production for the species at a seed farm in Washington, seed production efforts across the range have been sufficient to support numerous outplantings that have contributed to the recovery of the species across its range. Currently, there are seed production programs at the Center for Natural Lands Management, along with smaller scale operations in North Puget Sound representing seed collected from the populations extant at the time of listing on Whidbey Island, the San Juan Islands, and South Puget Sound. New mixed-source beds for golden paintbrush have been recently established at the Center for Natural Lands Management and the Pacific Rim Institute, and we will continue to work with our partners to ensure that seed sources for this species remain available as long as considered necessary. These combined seed production efforts will continue to support ongoing establishment of new populations and augmentation of existing populations throughout the range of the species.

(18) Comment: We received a few comments describing historical habitat loss of Pacific Northwest prairies. We also received a comment discussing the importance of these rare habitats to Tribes from a public commenter unaffiliated with any Tribe.

Response: The rarity of prairies on the landscape presents challenges to conservation of prairie-dependent species, including golden paintbrush. Pacific Northwest prairies have experienced significant declines from their historical distribution due to habitat loss from development and agriculture, as well as changes in disturbance regimes and the maintenance provided by indigenous Tribes for thousands of years. While these comments were not submitted by a Tribe, we know the success of prairie-dependent species conservation is tied directly to the habitats that support the species and to the extensive network of partners, including Tribes, working to restore and maintain prairies across the species' range;. These partnerships will continue to focus on restoration and maintenance of golden paintbrush and other species that rely on these rare prairie communities into the future. For more information, please see the discussion of habitat loss under Summary of Biological Status and Threats, above.

(19) Comment: We received a comment that disagrees with the information presented on genetic diversity in the June 30, 2021, proposed rule, stating that golden paintbrush has reduced genetic diversity because seed used to establish populations was sourced from seed from the populations extant at the time of listing.

Response: Genetic studies have indicated that despite its limited geographic range and isolation of its populations, golden paintbrush has high levels of diversity (Godt et al. 2005, p. 87; Lawrence and Kaye 2011, p. 173). Additionally, a recent study indicates that genetic diversity has increased in reintroduced populations relative to extant populations as a result of multiple source populations propagated together in a nursery production setting (St. Clair et al. 2020, pp. 589-591). Establishing populations across the species' range and in a variety of ecological settings will further contribute to the genetic diversity and representation of the species.

(20) Comment: We received a comment disagreeing with the established methodology of counting flowering plants to determine abundance estimates, The commenter stated that survey information could be unreliable due to the lack of non-flowering plant information.

Response: We developed the abundance estimate methodology in coordination with the golden paintbrush technical team to provide a consistent and reliable measure of adult plant abundance within populations to track population status (Service 2007, p. 3). We and the technical team determined it was impractical to count non-flowering golden paintbrush plants, and recommended modifying Recovery Criterion 1 to specify a flowering plant metric (Service 2007, p. 3). Although counting flowering plants could mean that populations might actually be undercounted, because vegetative plants are not counted, flowering plant abundance better informs the number of individuals most likely to reproductively contribute to the population, and may also be the best method to estimate a reasonable minimum population size.

(21) Comment: We received multiple comments highlighting potential impacts on the golden paintbrush and its habitat from invasive plant species given projected warmer temperatures.

Response: Habitat loss has been considered a threat to the species since the time of listing (1997), and part of that consideration is focused on invasive species. While invasive species will always be a potential threat that will need adequate management, given the ongoing invasive species management commitments across the species' range, golden paintbrush is expected to maintain moderate to high viability. Many of the exotic species in the Pacific Northwest have wide distributions and are likely adaptable to climate change (Bachelet et al. 2011, p. 417). As commenters mentioned, there are ongoing studies focused on how to manage Vulpia ssp. (a winter annual grass) in South Puget Sound prairie communities that will provide valuable information on how to control this nonnative species within golden paintbrush habitat across its range. Management techniques are constantly evolving as new challenges arise from invasive species, climate change, and unforeseen circumstances. This progression in management will likely continue into the future; however, the level of success is not always certain. We developed a post-delisting monitoring plan to track population status, site-specific management actions, and the presence of invasive species that will continue for at least 5 years following delisting.

(22) Comment: We received multiple comments expressing concern over the adequacy of the post-delisting monitoring plan to track the species' condition over the 5-year timeframe. The commenters suggest that estimating population size into categories (more than 1,000 flowering plants and more than 10,000 flowering plants) would be inadequate to detect changes in size and population trend and reduces the ability to understand why changes are occurring.

Response: The population size categories referenced in the post-delisting monitoring plan are not meant to be a population target but rather a threshold at which to review significance, methods, and potential threats with States and other collaborators before numbers might fall below the recovery objective. These thresholds are also consistent with those used in the SBR current condition analysis. Following delisting, the Act requires us to monitor effectively for not less than 5 years the status of the species in cooperation with the States that are within the range of the species (16 U.S.C. 1533(g)(1)). We developed a draft post-delisting monitoring plan for the golden paintbrush, coordinated review of the plan with State agencies in Washington and Oregon, and made the draft plan available for public review and comment. Sustaining post-delisting monitoring efforts can be challenging and subject to competing priorities for available resources. Nonetheless, we designed the post-delisting monitoring assuming limited resources. We are coordinating with State agencies in Washington and Oregon to find funding to support post-delisting monitoring efforts, but we fully anticipate some of the conservation landowners will continue to monitor populations on their own because of their ongoing interest in and commitment to conserving this species and others. We will continue to work with our conservation partners to ensure implementation of an effective and feasible post-delisting monitoring plan for the golden paintbrush.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of “endangered species” or “threatened species.” The Act defines 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 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 species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we find, based on the best available information, and as described in our analysis above, stressors identified at the time of listing and several additional potential stressors analyzed for this assessment do not affect golden paintbrush to a degree that causes it to be in danger of extinction either now or in the foreseeable future. Development of property for commercial, residential, and agricultural use (Factor A) has not occurred to the extent anticipated at the time of listing and is adequately managed; existing information indicates this condition is unlikely to change in the foreseeable future. Potential constriction of habitat for expansion and refugia (Factor A) also has not occurred to the extent anticipated at the time of listing, and existing information indicates this condition is unlikely to change in the foreseeable future. Habitat modification through succession of prairie and grassland habitats to shrub and forest lands (Factor A) is adequately managed, and existing information indicates this condition is unlikely to change in the foreseeable future. Recreational picking and associated trampling (Factor B) has not occurred to the extent anticipated at the time of listing; the species appears to tolerate current levels of this activity, and existing information indicates that this condition is unlikely to change in the foreseeable future. Herbivory on plants and seeds (Factor C) has not occurred to the extent anticipated at the time of listing; the species appears to tolerate current levels of herbivory, and existing information indicates that this condition is unlikely to change in the foreseeable future. Hybridization with the harsh paintbrush (Factor E) is adequately managed, and existing information indicates this condition is unlikely to change in the foreseeable future. Finally, golden paintbrush appears to adequately tolerate the effects of climate change (Factor E), and existing information indicates that this tolerance is unlikely to substantially change in the foreseeable future. In addition, there are means to help further mitigate for those effects of climate change ( e.g., continued outplanting across varied site conditions). The existing regulatory mechanisms (Factor D) are sufficient to ensure protection of the species at the reduced levels of threat that remain.

Thus, after assessing the best available information, we determine that golden paintbrush is not in danger of extinction, nor likely to become so in the foreseeable future, throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. Having determined that the golden paintbrush is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we now consider whether it may be in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range—that is, whether there is any portion of the species' range for which both (1) the portion is significant; and (2) the species is in danger of extinction now or likely to become so in the foreseeable future in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

In undertaking this analysis for the golden paintbrush, we choose to evaluate the status question first. We began by identifying portions of the range where the biological status of the species may be different from its biological status elsewhere in its range. For this purpose, we considered information pertaining to the geographic distribution of (a) individuals of the species, (b) the threats that the species faces, and (c) the resiliency condition of populations.

For the golden paintbrush, we considered whether the threats or their effects on the species are greater in any biologically meaningful portion of the species' range such that the species is in danger of extinction now or likely to become so in the foreseeable future in that portion. We examined the following threats: (1) Habitat succession of prairie and grassland habitats to shrub and forest due to fire suppression, interspecific competition, and invasive species; (2) development of property for commercial, residential, and agricultural use; (3) low potential for expansion and refugia due to constriction of habitat by surrounding development or land use; (4) recreational picking (including associated trampling); (5) herbivory (on plants and seeds); (6) hybridization with harsh paintbrush; and (7) the effects of climate change, including cumulative effects. Although the impact of hybridization with the harsh paintbrush is most evident in the South Puget Sound region of the species' range, this impact was due to the unintended consequences of seeding harsh paintbrush in aid of another species, so as a potential stressor, it is being addressed throughout the species' range with the hybridization strategy and guidance. We found no biologically meaningful portion of the golden paintbrush' range where threats are impacting individuals differently from how they are affecting the species elsewhere in its range, or where the condition of the species differs from its condition elsewhere in its range such that the status of the species in that portion differs from its status in any other portion of the species' range.

Therefore, we find that the species is not in danger of extinction now or likely to become so in the foreseeable future in any significant portion of its range. This does not conflict with the courts' holdings in Desert Survivors v. Department of the Interior, 336 F. Supp. 3d 1131 (N.D. Cal. 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d. 946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we did not apply the aspects of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014), including the definition of “significant” that those court decisions held to be invalid.

Our review of the best available scientific and commercial information indicates that the golden paintbrush does not meet the definition of an endangered species or a threatened species in accordance with sections 3(6) and 3(20) of the Act. Therefore, we remove the golden paintbrush from the List of Endangered and Threatened Plants.

This final rule revises 50 CFR 17.12(h) by removing the golden paintbrush from the List of Endangered and Threatened Plants. On the effective date of this rule (see DATES , above), the prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, no longer apply to the golden paintbrush. Federal agencies will not be required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect the golden paintbrush. There is no critical habitat designated for this species, so there is no effect to 50 CFR 17.96.

Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a system to monitor effectively, for not less than 5 years, all species that have been recovered and delisted. Post-delisting monitoring (PDM) refers to activities undertaken to verify that a species delisted due to recovery remains secure from the risk of extinction after the protections of the Act no longer apply. The primary goal of PDM is to monitor the species to ensure that its status does not deteriorate, and if a decline is detected, to take measures to halt the decline so that proposing it as endangered or threatened again is not needed. The monitoring is designed to detect the failure of any delisted species to sustain itself without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that the protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing under section 4(b)(7) of the Act. Section 4(g) of the Act explicitly requires us to cooperate with the States in development and implementation of post-delisting monitoring programs, but we remain responsible for compliance with section 4(g) and, therefore, must remain actively engaged in all phases of post-delisting monitoring. We also seek active participation of other entities that are expected to assume responsibilities for the species' conservation post-delisting.

We prepared a PDM plan that describes the methods for monitoring the species after its delisting. Monitoring of flowering plants at each golden paintbrush site extant in 2018 will take place every other year, over a minimum of 5 years, beginning the first spring after the effective date of this final delisting rule (see DATES , above). Monitoring efforts will be slightly modified from prior protocols, by only requiring a visual estimation of population size when the population clearly exceeds 1,000 flowering individuals but is fewer than 10,000, or when a population clearly exceeds 10,000 flowering individuals as opposed to an actual count or calculated estimate of flowering plants. This modification should streamline monitoring efforts. It is our intent to work with our partners to maintain the recovered status of golden paintbrush. The final PDM plan can be found at https://www.regulations.gov under Docket No. FWS-R1-ES-2020-0060.

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, environmental analyses pursuant to the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq. ) need not be prepared in connection with determining a species' listing status under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we 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 Native American culture, and to make information available to Tribes.

We do not believe that any Tribes will be affected by this rule, and we did not receive any comments on our June 30, 2021, proposed rule from a Tribe. There are currently no golden paintbrush sites on Tribal lands, although some sites may lie within the usual and accustomed places for Tribal collection and gathering of resources.

A complete list of all references cited in this rule is available on the internet at https://www.regulations.gov at Docket No. FWS-R1-ES-2020-0060, or upon request from the State Supervisor, Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this final rule are the staff of the Washington Fish and Wildlife Office in coordination with the Pacific Regional Office in Portland, Oregon.

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

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands management area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

NMFS closed directed fishing for POP in the Bering Sea subarea of the BSAI under § 679.20(d)(1)(iii) (88 FR 14926, March 10, 2023) and as corrected (88 FR 18258, March 28, 2023).

NMFS has determined that approximately 4,500 metric tons of POP remain in the directed fishing allowance. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2023 total allowable catch of POP in the Bering Sea subarea of the BSAI, NMFS is terminating the previous closure and is opening directed fishing for POP in Bering Sea subarea of the BSAI, effective 1200 hrs, A.l.t., July 15, 2023, through 2400 hrs, A.l.t., December 31, 2023. This will enhance the socioeconomic well-being of harvesters dependent on POP in this area.

The Administrator, Alaska Region considered the following factors in reaching this decision: (1) the current catch of POP in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels participating in this fishery.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for POP in the Bering Sea subarea of the BSAI. NMFS was unable to publish a notification providing time for public comment because the most recent, relevant data only became available as of July 10, 2023.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Without this inseason adjustment, NMFS could not allow the fishery for Pacific ocean perch in the Bering Sea subarea of the BSAI to be harvested in an expedient manner and in accordance