I. Authority II. Background and Summary of the Supplemental Notice of Proposed Rulemaking III. Discussion of Specific Proposed Sections A. Proposed § 850.22—Permissible Exposure Limits B. Proposed § 850.23—Action Level C. Proposed Conforming Amendments to §§ 850.11 and 850.25 IV. Regulatory Review A. Review Under Executive Orders 12866, 13563, and 14094 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 12988 F. Review Under Executive Order 13132 G. Review Under Executive Order 13175 H. Review Under the Unfunded Mandates Reform Act of 1995 I. Review Under Executive Order 12630 J. Review Under Executive Order 13211 K. Review Under the Treasury and General Government Appropriations Act, 1999 L. Review Under the Treasury and General Government Appropriations Act, 2001 V. Public Participation—Submission of Comments VI. Approval by the Office of the Secretary of Energy I. Authority

DOE has broad authority to regulate worker safety and health with respect to its nuclear and nonnuclear functions pursuant to the Atomic Energy Act of 1954 (AEA), 42 U.S.C. 2011 et seq.; the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5801 et seq.; and the Department of Energy Organization Act (DOEOA), 42 U.S.C. 7101 et seq. Specifically, the AEA authorized and directed the Atomic Energy Commission (AEC), a predecessor agency to DOE, to protect health and promote safety during the performance of activities under the AEA. See Sec. 31a.(5) of the AEA, 42 U.S.C. 2051(a)(5); Sec. 161 b. of the AEA, 42 U.S.C. 2201(b); Sec. 161 i.(3) of the AEA, 42 U.S.C. 2201(i)(3); and Sec. 161 p. of the AEA, 42 U.S.C. 2201(p). In addition, Congress amended the AEA in 2002 by adding section 234C, 42 U.S.C. 2282c, which, among other things, directed DOE to “promulgate regulations for industrial and construction health and safety at Department of Energy facilities that are operated by contractors covered by agreements of indemnification under section 2210(d)” of title 42 of the United States Code.

The ERA abolished the AEC and replaced it with the Nuclear Regulatory Commission (NRC), which became responsible for the licensing of commercial nuclear activities, and the Energy Research and Development Administration (ERDA), which became responsible for the other functions of the AEC under the AEA, as well as several nonnuclear functions. The ERA authorized ERDA to use the regulatory authority under the AEA to carry out its nuclear and nonnuclear functions, including those functions that might become vested in ERDA in the future. See Sec. 105(a) of the ERA, 42 U.S.C. 5815(a); and Sec. 107 of the ERA, 42 U.S.C. 5817. The DOEOA transferred the functions and authorities of ERDA to DOE. See Sec. 301(a) of DOEOA, 42 U.S.C. 7151(a); Sec. 641 of DOEOA, 42 U.S.C. 7251; and Sec. 644 of DOEOA, 42 U.S.C. 7254.

Additional authority for the rule, insofar as it applies to DOE Federal employees, is found in section 19 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 668) and Executive Order 12196, “Occupational Safety and Health Programs for Federal Employees” (5 U.S.C. 7902 note), which require Federal agencies to establish comprehensive occupational safety and health programs for their employees.

On December 8, 1999, DOE published its final rule establishing the CBDPP (64 FR 68854), which became effective January 7, 2000. In the CBDPP, DOE adopted, among other things, OSHA's PEL in 29 CFR 1910.1000, which was 2.0 μg/m 3 measured as an 8-hour TWA, and any more stringent TWA PEL that may be promulgated by OSHA as a health standard in the future. The AEC first applied the 2.0 μg/m 3 TWA PEL in 1949 and it had been continuously applied by DOE and its predecessor agencies through the years. Additionally, DOE set an “action level” for worker exposure to airborne concentrations of beryllium at 0.2 μg/m 3 , calculated as an 8-hour TWA exposure. The “action level” is the level of airborne concentrations of beryllium which, if met or exceeded, would require a DOE office or contractor to implement certain worker protection provisions. Since the rule's January 7, 2000, effective date, DOE facilities have been expected to maintain worker exposures to beryllium at levels at or below OSHA's PEL, as well as operate with an action level.

Other than OSHA's PEL, DOE employers are not subject to any other OSHA beryllium-specific requirements in 29 CFR 1910.1024. Section 4(b)(1) of the Occupational Safety and Health Act of 1970 [29 U.S.C. 653(b)(1)] (OSH Act) states that “[n]othing in [the OSH Act] shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.”

To avoid confusion among its contractors and their employees regarding with which standard to comply, the Department amended 10 CFR part 851, Worker Safety and Health Program (80 FR 69564, November 10, 2015). The amendment clarified that it is DOE's intent to only adopt OSHA's 8-hour PEL for beryllium, and that the ancillary provisions ( e.g., exposure assessment, personal protective clothing and equipment, medical surveillance, medical removal, training, and regulated areas or access control) of OSHA's standard do not apply to DOE and DOE contractor employees.

On June 7, 2016, DOE published a NOPR for public comment in the Federal Register (81 FR 36704) proposing to amend its CBDPP regulations. The public comment period ended on September 6, 2016. The proposed amendments included in the NOPR were intended to strengthen the current CBDPP and the worker protection programs established under 10 CFR part 851, Worker Safety and Health Program. In part, the proposed amendments in the NOPR would have reduced the action level for worker exposure to airborne concentrations of beryllium to 0.05 μg/m 3 , calculated as an 8-hour TWA exposure. In the NOPR, DOE also proposed to adopt OSHA's current and any future PELs for worker exposure to beryllium and beryllium compounds. DOE did not propose adopting a STEL because DOE's proposed action level of 0.05 μg/m 3 would be exceeded in less than the 15-minute sampling period for the STEL where exposure levels were at OSHA's PEL of 2.0 µg/m 3 .

After publication of DOE's NOPR, OSHA promulgated new regulations in 29 CFR parts 1910, 1915 and 1926 for the protection of workers from the effects of exposure to beryllium and beryllium compounds in the workplace (82 FR 2470, January 9, 2017). OSHA's regulations contained new PELs for occupational exposure to beryllium and beryllium compounds, consisting of: (1) an 8-hour TWA PEL of 0.2 μg/m 3 ; and (2) a STEL of 2.0 μg/m 3 as measured over a 15-minute sampling period. In its final rule, OSHA stated that it was establishing an 8-hour TWA PEL of 0.2 μg/m 3 because it found that occupational exposure to beryllium at the previous PEL of 2.0 μg/m 3 posed a significant risk of material impairment to the health of exposed workers, and the lower TWA PEL of 0.2 µg/m 3 would substantially reduce that risk. OSHA promulgated a STEL of 2.0 μg/m 3 , as measured over a 15-minute sampling period, to help reduce the risk of beryllium sensitization (BeS) and chronic beryllium disease (CBD) in beryllium-exposed workers. OSHA also adopted an action level for airborne beryllium of 0.1 μg/m 3 , calculated as an 8-hour TWA.

DOE is now issuing this SNOPR to consider having the Department set its own 8-hour TWA PEL of 0.2 μg/m 3 for airborne beryllium, which is consistent with the current TWA PEL set by OSHA, rather than, as proposed in the NOPR, adopting OSHA's current or future TWA PELs. The Department is also proposing to require an airborne action level of 0.1 μg/m 3 , calculated as an 8-hour TWA exposure, as measured in the worker's breathing zone by personal monitoring, as an alternative to the previously proposed airborne action level of 0.05 µg/m 3 . Finally, the Department is proposing to require a STEL of 2.0 µg/m 3 , as measured over a period of fifteen minutes. The TWA PEL, STEL, and action level proposed by the Department in this SNOPR would be consistent with OSHA's current TWA PEL, STEL, and action level.

This section describes the Department's proposals for which the Department is soliciting public comment.

The newly proposed § 850.22(a) would continue to establish the TWA PEL for the CBDPP. The PEL supplements the action level by establishing an absolute 8-hour TWA level above which, no worker may be exposed. Engineering or work practice controls are required to bring exposures to at or below the PEL.

In the NOPR, DOE proposed that § 850.22(a) would continue to adopt OSHA's 8-hour TWA PEL established in 29 CFR 1910.1000 for airborne exposure to beryllium, as measured in the worker's breathing zone by personal monitoring but allowed for the adoption of a stricter standard should OSHA establish one through its rulemaking process. DOE also proposed in the NOPR [§ 850.22(b)] that DOE would inform employers of any change in the TWA PEL through a notice in the Federal Register .

In this SNOPR, proposed § 850.22(a) would require employers to ensure that no worker is exposed to an airborne concentration of beryllium in excess of 0.2 μg/m 3 , calculated as an 8-hour TWA exposure, as measured in the worker's breathing zone by personal monitoring. This TWA PEL is consistent with the TWA PEL adopted by OSHA in 29 CFR parts 1910, 1915, and 1926. The Department is proposing to adopt its own TWA PEL, rather than adopt OSHA's current or future TWA PEL, because the Department believes by exercising its authority to issue regulations for industrial and construction health and safety at DOE facilities, including setting a TWA PEL, it can better provide clarity and consistency to employers at DOE sites regarding the TWA PEL with which they must comply.

In the NOPR, DOE did not propose adopting a STEL. In the preamble to the NOPR, DOE stated that it considered adopting OSHA's proposed STEL of 2.0 µg/m 3 but did not do so because DOE's proposed action level of 0.05 µg/m 3 would be exceeded in less than the 15-minute sampling period (see discussion regarding § 850.23 in the NOPR (81 FR 36704, 36722)). In conjunction with its proposal in this SNOPR to adopt an action level of 0.1 μg/m 3 (discussed below), the Department is proposing to adopt a STEL that is consistent with the STEL set by OSHA in 29 CFR parts 1910, 1915, and 1926. In OSHA's January 9, 2017, final rule (82 FR 2470), OSHA found that there are still significant risks of BeS and CBD remaining at the 8-hour TWA PEL. DOE notes that the goal of a STEL is to provide additional protection to workers from the risk of harm that can occur as a result of brief, high-level exposures to beryllium, which have been associated with development of BeS and CBD. Many of the beryllium activities at DOE sites are performed for short durations of time.

DOE believes a STEL would protect workers from the risk of harm that can occur because of brief, high-level exposures to beryllium. Proposed § 850.22(b) would establish a STEL for the CBDPP by requiring employers to ensure that no worker is exposed to an airborne concentration of beryllium in excess of 2.0 µg/m 3 as determined over a sampling period of 15 minutes and measured in the worker's breathing zone by personal monitoring.

Currently, 10 CFR 850.23(a) requires a responsible employer to include in its CBDPP an action level that is no greater than 0.2 µg/m 3 , calculated as an 8-hour TWA exposure, as measured in the worker's breathing zone by personal monitoring. In the NOPR, DOE proposed in § 850.23(a) that employers would be required to include in their CBDPPs an action level that was no greater than 0.05 µg/m 3 , calculated as an 8-hour TWA exposure, as measured in the worker's breathing zone by personal monitoring. The 0.05 µg/m 3 action level was chosen based on the Department's review of epidemiological studies and the American Conference of Governmental Industrial Hygienists (ACGIH®) threshold limit value (TLV®). The Department believed that adopting a lower action level for airborne beryllium would result in reduced worker exposures and fewer workers developing BeS and CBD.

In the NOPR, DOE expressed the belief that it did not anticipate that the proposed 0.05 µg/m 3 action level would require the use of new or different types of equipment. However, the Department became aware that there are concerns as to the feasibility of complying with a 0.05 μg/m 3 action level, and whether current analytical methods can detect airborne concentrations of beryllium at that level. Therefore, DOE is proposing an alternative action level of 0.1 µg/m 3 , as an 8-hour TWA exposure, as measured in the worker's breathing zone by personal monitoring. This action level would be consistent with the action level for beryllium adopted by OSHA in its regulations for beryllium and beryllium compounds. In OSHA's January 9, 2017, final rule (82 FR 2470), OSHA indicated that workers in facilities that meet the action level of 0.1 μg/m 3 will face lower risks of BeS and CBD than workers in facilities that cannot meet the action level. The Department believes the of 0.1 μg/m 3 action level will be more protective than the current action level of 0.2 µg/m 3 and is feasible.

Proposed § 850.23(a) would require employers to include in their CBDPPs an action level that is no greater than 0.1 µg/m 3 , calculated as an 8-hour TWA exposure, as measured in the worker's breathing zone by personal monitoring. The action level triggers the requirements to use a number of controls and protective measures designed to protect employees from exposures to beryllium.

If the proposed amendment to add the STEL is made, DOE proposes to make minor conforming amendments to §§ 850.11 and 850.25 to reflect that there would be two applicable exposure limits.

Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by Executive Order 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011) and amended by Executive Order 14094, “Modernizing Regulatory Review,” 88 FR 21879 (April 11, 2023), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (OIRA) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this regulatory action is consistent with these principles. Section 6(a) of Executive Order 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this proposed regulatory action does not constitute a “significant regulatory action” within the scope of Executive Order 12866.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires that an agency prepare an initial regulatory flexibility analysis for any regulation for which a general notice of proposed rulemaking is required, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities (5 U.S.C. 605(b)). As required by E.O. 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. DOE made its procedures and policies available on the Office of the General Counsel's website ( www.energy.gov/gc/office-general-counsel ).

DOE reviewed this SNOPR under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE certifies that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is set forth.

This SNOPR would update DOE's regulations on CBDPP and would only apply to activities conducted by DOE and DOE's contractors. DOE expects that any potential economic impact of the proposed rule on small businesses would be minimal because work performed at DOE sites is under contracts with DOE or the prime contractor at the site. DOE contractors are reimbursed through their contracts for the costs of complying with worker safety and health program requirements. Therefore, they would not be adversely impacted by the requirements in this proposed rule. For these reasons, DOE certifies that the proposed rule, if promulgated, would not have a significant economic impact on a substantial number of small entities, and therefore, no regulatory flexibility analysis has been prepared.

This SNOPR does not impose any new information or recordkeeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and the procedures implementing that Act, 5 CFR 1320.1 et seq.

DOE analyzed this SNOPR in accordance with the National Environmental Policy Act of 1969 (NEPA) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE's regulations include a categorical exclusion (CX) for rulemakings interpreting or amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being amended (10 CFR part 1021, subpart D, appendix A5). DOE determined that this SNOPR is covered under that CX because the proposed rule is an amendment to an existing regulation that does not change the environmental effect of the amended regulation. Therefore, DOE determined that this SNOPR is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA and does not require an Environmental Assessment or an Environmental Impact Statement.

With respect to the review of existing regulations and the promulgation of new regulations, Section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; (6) specifies whether administrative proceedings are to be required before parties may file suit in court and, if so, describes those proceedings and requires the exhaustion of administrative remedies; and (7) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met, or it is unreasonable to meet one or more of them. DOE completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.

Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE examined this SNOPR and tentatively determined that the proposed rule would not preempt State law and would not have a substantial direct effect on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.

Under Executive Order 13175 (65 FR 67249, November 6, 2000) on “Consultation and Coordination with Indian Tribal Governments,” DOE may not issue a discretionary rule that has “Tribal” implications and imposes substantial direct compliance costs on Indian Tribal governments. DOE determined the proposed rule in this SNOPR would not have such effects and Executive Order 13175 does not apply to this proposed rule.

Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4) requires each Federal agency to assess the effects of a Federal regulatory action on State, local, and Tribal governments, and the private sector. (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531)). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant Federal intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. (62 FR 12820) (This policy is also available at: www.energy.gov/gc/guidance-opinions ). DOE examined the proposed rule according to UMRA and its statement of policy and determined the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year. Accordingly, no further assessment or analysis is required under UMRA.

DOE determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this proposed rule would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1)(i) is a significant regulatory action under Executive Order 12866, or any successor order; and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (2) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This SNOPR would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well-being. This SNOPR would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE concluded it is not necessary to prepare a Family Policymaking Assessment.

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).

DOE reviewed this SNOPR under the OMB and DOE guidelines and concluded that it is consistent with applicable policies in those guidelines.

DOE will accept comments, data, and information regarding this SNOPR no later than the date provided in the DATES section at the beginning of this document. Interested individuals are invited to participate in this proceeding by submitting data, views, or arguments with respect to the specific sections addressed in this proposed rule using the methods described in the ADDRESSES section at the beginning of this document.

1. Submitting comments via www.regulations.gov. The www.regulations.gov web page will require you to provide your name and contact information. Your contact information will be viewable by DOE's Office of Worker Safety and Health Policy staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment. However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through www.regulations.gov will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that www.regulations.gov provides after you have successfully uploaded your comment.

2. Submitting comments via email or mail. Comments and documents submitted via email or mail will also be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

3. Confidential Business Information. Pursuant to the provisions of 10 CFR 1004.11, any person submitting information or data he or she believes to be confidential and exempt by law from public disclosure should submit two well-marked copies: One copy of the document marked “CONFIDENTIAL” including all the information believed to be confidential, and one copy of the document marked “NON-CONFIDENTIAL” with the information believed to be confidential deleted. Submit these documents via email to Rulemaking.850@hq.doe.gov. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

4. Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

The Secretary of Energy approved publication of this supplemental notice of proposed rulemaking.

This document of the Department of Energy was signed on August 16, 2023, by Jennifer Granholm, Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons set forth in the preamble, the Department of Energy proposes to amend 10 CFR part 850 as set forth below.

I. Background

Title XI of the Organized Crime Control Act of 1970, Public Law 91-452, 84 Stat. 922, added chapter 40 (Importation, Manufacture, Distribution and Storage of Explosive Materials) to title 18 of the United States Code. One purpose of title XI is to reduce the “hazard to persons and property arising from misuse and unsafe or insecure storage of explosive materials.” Public Law 91-452, sec. 1101, 84 Stat. at 952.

The Attorney General is responsible for implementing title XI. See 18 U.S.C. 847. The Attorney General has delegated that responsibility to the Director of the ATF, subject to the direction of the Attorney General and the Deputy Attorney General. See 28 CFR 0.130. Regulations in 27 CFR part 555 implement title XI.

On August 24, 1998, ATF published in the Federal Register a final rule to implement a storage notification requirement for manufacturers and other storers of explosives. Notice No. 841, 63 FR 44999. ATF amended the regulations in 27 CFR part 55 (now part 555)  1 to require that any person who starts storing explosive materials notify the authority having jurisdiction for fire safety in the locality in which the explosive materials are being stored of the type of explosives, magazine capacity, and location of each site where such explosives are stored. The 1998 final rule was issued in response to the numerous deaths and injuries sustained by emergency response personnel responding to fires at sites where explosives were stored without the knowledge of State and local officials. See Notice No. 841, 61 FR 53688 (Oct. 15, 1996).

ATF is concerned with the safety of emergency response personnel responding to fires on sites where explosives are stored, and the safety of the public around such areas. It is important that first responders are aware of explosives storage when responding to a fire site. Firefighters and other fire safety officials generally do not attempt to fight a fire that involves a container of explosive materials because of the potential for an explosion that could harm the responders. Knowledge of the existence of explosives in such close proximity to a fire would typically prompt an evacuation of the facility and the surrounding area to ensure the safety of the first responders and the public.

The regulation at 27 CFR 555.201(f) requires the reporting of certain information when storage of explosive materials commences, but does not specifically require subsequent reporting that might reflect changes in the type of explosives and magazine capacity. Explosives industry association representatives raised this issue with ATF during discussions conducted in connection with Executive Order 13650 of August 1, 2013, “Improving Chemical Facility Safety and Security.” These representatives recommended that this regulation be amended to require annual reporting. They stated that this would increase communication between industry members and their local emergency responders, mitigate the negative effects of turnover in the emergency response community, and increase training opportunities for the local responders.

Executive Order 13650 recognizes the importance of implementing safety measures for the handling and storage of chemicals, including explosive materials. In addition, it established the Chemical Facility Safety and Security Working Group, co-chaired by the heads of the Department of Homeland Security, the Environmental Protection Agency, and the Department of Labor, and whose membership includes the heads of the Department of Justice, Department of Agriculture, and Department of Transportation, to carry out the responsibilities of the order. Department heads can also delegate their responsibilities to a representative. A final report, submitted by the working group to the President in May 2014, notes that ATF will work closely with explosives industry associations to develop best practices, procedures, or regulations to improve communication with fire authorities, including more frequent notification of significant changes to storage facilities. See Executive Order 13650: Actions to Improve Chemical Facility Safety and Security—A Shared Commitment: Report for the President at 51 (May 2014), https://www.cisa.gov/sites/default/files/publications/2014-08-25-final-chemical-eo-status-report-508.pdf.

As a result of our consultations with explosives industry associations, ATF is proposing to amend the regulation at 27 CFR 555.201(f) to require annual reporting of explosive materials storage to local fire authorities. ATF believes that a requirement for annual reporting will lead to more frequent contact between persons storing explosive materials and local fire authorities, ensure that explosives storage information is timely provided to new first responder staff members, and serve to reinforce the importance of the information to fire response organizations. ATF believes that an annual reporting time frame would best balance the need for these results against the burden of more frequent reporting. For these reasons, ATF is proposing to amend the regulation at 27 CFR 555.201(f) to require persons to report storage of explosive materials to local fire authorities on an annual basis.

The current regulation at 27 CFR 555.201(f) requires any person who stores explosive materials to provide to fire safety officials an oral notification before the end of the day on which storage of the explosive materials commenced, and in writing ( e.g., email, letter) within 48 hours after commencement of storage. Both forms of notification must include the type of explosives, magazine capacity, and location of each site where such explosive materials are stored.

ATF proposes amending the regulation to require any person who stores explosive materials to notify authorities having jurisdiction for fire safety in the locality in which the explosive materials are being stored upon commencement of storage and every 12 months thereafter. In addition, such persons would be required to provide written notification whenever they discontinue the storage of explosives.

ATF further proposes to amend the regulation to require that each written notification contain the name, title, and agency of the fire authority official notified and the date of the written notification. The person submitting the notification will be required to retain a copy of the written notification for five years and make such notification available for examination or inspection by ATF at all reasonable times.

This annual notification will increase public safety through increased communication between storers of explosive materials and their local emergency responders, provide updated storage information to local authorities, and allow for risk assessments and emergency response preparation prior to incidents, thus reducing potential safety and damage risk to first responders and emergency equipment, respectively.

This proposed regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” sec. 1(b), The Principles of Regulation, and in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review.”

The Office of Management and Budget (“OMB”) has determined that this proposed rule is not a “significant regulatory action” under Executive Order 12866, section 3(f). Furthermore, this rulemaking will not have an annual effect on the economy of $100 million or more, nor will it adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health, or safety, or State, local, or tribal governments or communities.

This proposed rule would amend 27 CFR 555.201(f) to require annual notification to local authorities having jurisdiction for fire safety concerning the storage of explosive materials. More specifically, this proposed rule would require any person who stores explosive materials to notify, at the commencement of storage, local authorities with jurisdiction for fire safety with respect to the type of explosives, magazine capacity, and location of each site where such explosive materials are stored. Notification would also be required once every 12 months thereafter, but no later than the end of the month during which the 12-month period is completed, and upon discontinuance of the storage of explosives.

ATF estimates that this rulemaking will have an impact on approximately 9,674 licensees or permittees, and that notification will take 30 minutes per occasion. ATF cost estimates for this rulemaking are as follows:

Labor Costs: Half hour of labor ($41.86/hour × 0.5 hours)  2 for completing and mailing the notification × 9,674 licensees or permittees = $202,477. The annual cost of this rulemaking would be $202,477.

The benefits to this rulemaking would allow for improved risk assessments and emergency response preparation prior to incidents, thus reducing potential safety and damage risk to first responders and emergency equipment, respectively.

This proposed rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, “Federalism,” the Attorney General has determined that this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform.”

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. 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.

By approving this proposed rule, the Attorney General certifies that it will not have a significant economic impact on a substantial number of small entities. ATF estimates that this rulemaking will have an impact on approximately 9,674 licensees or permittees, with the majority of those being small businesses. The notification is estimated to take 30 minutes annually for a phone call and to provide written notification, most likely by email. ATF cost estimates for this rulemaking are as follows:

Labor Costs: Half hour of labor ($41.86/hour × 0.5 hours)  3 for completing and mailing the notification = $21.

As such, the cost associated with the notification is minimal.

This proposed rule is not a major rule as defined by the Congressional Review Act, 5 U.S.C. 804.

This proposed rule will not result in the aggregate expenditure by State, local, and tribal governments, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538.

This proposed rule would call for a revision to an existing collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521. As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. The title and description of the information collection, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection.

Title: Notification to Fire Safety Authority of Storage of Explosive Materials.

OMB Control Number: 1140-0071.

Summary of the Collection of Information: This proposed rule amends 27 CFR 555.201(f) to require annual notification to local authorities having jurisdiction for fire safety concerning the storage of explosive materials. Currently, any person who stores explosive materials is required at the commencement of storage to notify local authorities with jurisdiction for fire safety with respect to the type of explosives, magazine capacity, and location of each site where such explosive materials are stored. This proposed rule would require submission of such reports annually thereafter, and notification whenever storage is discontinued. Any person storing explosive materials would be required to maintain a copy of the written notification for five years from the date of notification.

Need for Information: It is important that first responders are aware of explosives storage when responding to a fire site. Firefighters and other fire safety officials generally do not attempt to fight a fire that involves a container of explosive materials because of the potential for an explosion that could harm the responders. Knowledge of the existence of explosives in such close proximity to a fire would typically prompt an evacuation of the facility and the surrounding area to ensure the safety of the first responders and the public.

Proposed Use of Information: To provide awareness of the existence of explosives in close proximity to a fire so that first responders prompt an evacuation of the facility and the surrounding area to ensure the safety of the first responders and the public.

Description of the Respondents: Persons or entities who store explosive materials.

Estimated Number of Respondents: 9,674.

Frequency of Response: Once annually.

Burden of Response: 30 minutes.

We ask for public comment on the proposed collection of information to help us determine how useful the information is, whether it can help the various levels of government perform their functions better, whether it is readily available elsewhere, how accurate our estimate of the burden of collection is, how valid our methods for determining burden are, how we can improve the quality, usefulness, and clarity of the information, and how we can minimize the burden of collection.

If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under ADDRESSES , by the date set forth under DATES .

You need not respond to a collection of information unless it displays a currently valid control number from OMB. Before the requirements for this collection of information become effective, we will publish a notice in the Federal Register of OMB's decision to approve, modify, or disapprove the proposed collection.

ATF requests comments on the proposed rule from all interested persons. ATF specifically requests comments on the clarity of this proposed rule and how easy it is to understand, as well as comments on the costs or benefits of the proposed rule and on the appropriate methodology and data for calculating those costs and benefits.

In addition, ATF specifically requests comments regarding whether a different time frame would be more appropriate or less burdensome.

All comments must reference the docket number (ATF 2013R-15P) and be legible. Commenters must also include their complete first and last name and contact information. If submitting through the Federal eRulemaking portal, as described in Section IV.C., commenters should carefully review and follow the website's instructions on submitting comments. If submitting as an individual, any information provided for city, state, zip code, and phone will not be publicly viewable when the comment is published on regulations.gov by ATF. If submitting a comment by mail, commenters should review Section IV.B. “Confidentiality,” regarding proper submission of personally identifiable information (PII). ATF will not consider, or respond to, comments that do not meet these requirements or comments containing profanity. In addition, if ATF cannot read your comment due to technical difficulties and cannot contact you for clarification, ATF may not be able to consider your comment. ATF will treat all comments as originals and will not acknowledge receipt of comments.

ATF will carefully consider comments submitted on or before the closing date, and will give comments submitted after that date the same consideration if it is practical to do so, but assurance of consideration cannot be given except as to timely comments.

ATF will make all comments meeting the requirements of this section, whether submitted electronically or on paper, available for public viewing at ATF and on the internet as part of the eRulemaking initiative, and subject to the Freedom of Information Act (5 U.S.C. 552), with exceptions for confidential information as discussed below. Commenters who submit by mail and who do not want their name or other PII posted on the internet should submit comments along with a separate cover sheet containing their PII. Both the cover sheet and comment must reference this docket number (ATF 2013R-15P). Information contained in the cover sheet will not appear on the internet. ATF will not redact PII that appears within the body of comment, and it will appear on the internet. Commenters who submit through the Federal eRulemaking portal and who do not want any of their PII posted on the internet should omit such PII from the body of their comment or in any uploaded attachments.

The commenter should not include material that he or she considers inappropriate for disclosure to the public. Any person submitting a comment shall specifically designate that portion (if any) of the comment that contains material that is confidential under law ( e.g., trade secrets, processes). The commenter shall set forth any portion of a comment that is confidential under law on pages separate from the balance of the comment with each page prominently marked “confidential” at the top of the page.

Confidential information will be included in the rulemaking record but will not be disclosed to the public. Any comments containing material that is not confidential under law may be disclosed to the public. In any event, the name of the person submitting a comment is not exempt from disclosure.

Submit comments in any of three ways (but do not submit the same comments multiple times or by more than one method).

• Federal eRulemaking Portal: We strongly recommend that you submit your comments to ATF via the Federal eRulemaking portal. Visit https://www.regulations.gov and follow the instructions for submitting comments. Comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number provided by https://www.regulations.gov after you have successfully uploaded your comment.

• Mail: Send written comments to the address listed in the ADDRESSES section of this document. Written comments must appear in minimum 12-point font size (.17 inches), include the commenter's complete first and last name and full mailing address, and be signed. Written comments may be of any length.

Any interested person who desires an opportunity to comment orally at a public hearing should submit his or her request, in writing, to the Director of ATF within the 90-day comment period. The Director, however, reserves the right to determine, in light of all circumstances, whether a public hearing is necessary.

Copies of this proposed rule and the comments received will be available for public inspection through the Federal eRulemaking portal, https://www.regulations.gov, or by appointment during normal business hours at the ATF Reading Room, Room 1E-062, 99 New York Avenue NE, Washington, DC 20226; telephone: (202) 648-8740.

The author of this document is Shermaine Kenner, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives.

Accordingly, for the reasons discussed in the preamble, the Department of Justice proposes to amend 27 CFR part 555 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section SLR Special Local Regulation U.S.C. United States Code II. Background, Purpose, and Legal Basis

On March 13, 2023, the NC East Sports, Inc organization notified the Coast Guard that it will be hosting the Crystal Coast Grand Prix powerboat race in Morehead City, NC. This high speed boat race will take place from 10 a.m. to 6 p.m. on the waters of the Atlantic Intracoastal Waterway (AICW) and Beaufort Inlet each year on one consecutive Friday, Saturday, and/or Sunday in September. It is anticipated that approximately 60 high speed vessels will be participating. The racecourse encompasses approximately 1.5 square miles and will include all navigable waters of the AICW and Beaufort Inlet, North Carolina from approximate positions more particularly described in the discussion (paragraph III of this preamble), below. The Captain of the Port, Sector North Carolina (COTP) has determined that the presence of vessels not associated with the race, and anyone else in or transiting the designated area of the AICW and Beaufort Inlet in Morehead City, NC during the high speed vessel race would pose a safety concern to the participating vessels, and to spectators of the event, as well as to others within the designated area. The purpose of this rulemaking is to ensure the safety of vessels, participants, and other persons from the hazards associated with the event.

This proposed rule would modify 33 CFR 100.501 by listing a new recurring marine event in Table 4 to Paragraph (i)(4), which covers the Coast Guard Sector North Caroline—COTP Zone. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70041.

The COTP is proposing to establish a SLR which would be enforced on a portion of the AICW and Beaufort Inlet from 10 a.m. until 6 p.m. each year on one consecutive Friday, Saturday, and/or Sunday in September. The times of enforcement would be broadcast locally over VHF-FM marine radio via a Broadcast Notice to Mariners (BNM), Marine Safety Information Bulletin (MSIB), and Local Notice to Mariners (LNM).

The regulated area would encompass approximately 1.5 square miles and would include all navigable waters of the AICW and Beaufort Inlet, North Carolina, from approximate positions: latitude 34°42′55″N, longitude 076°43′15″W, then east to latitude 34°42′56″N, longitude 076°42′13″W, then east to latitude 34°42′57″N, longitude 076°41′41″W, then east to latitude 34°42′57″N, longitude 076°41′25″W, then south east to latitude 34°42′23″N, longitude 076°40′44″W, then south to latitude 34°41′59″N, longitude 076°40′43″W, then north west to latitude 34°42′32″N, longitude 076°42′14″W, then west to latitude 34°42′32″N, longitude 076°43′15″W, then north to its point of origin.

This SLR provides additional information about areas that would be included within the regulated area, including their definitions. These areas include “Race Area,” “Spectator Area,” and “Buffer Zone.”

The size of the regulated area is intended to ensure the safety of life on these navigable waters before, during, and after activities associated with the high speed boat race. The COTP and the Coast Guard Event Patrol Commander (PATCOM) have authority to forbid and control the movement of all vessels and persons, including event participants, in the regulated area. When hailed or signaled by an official patrol, a vessel or person in the regulated area must immediately comply with the directions given by the COTP or Event PATCOM. If a person or vessel fails to follow such directions, the Coast Guard may expel them from the area, issue them a citation for failure to comply, or both.

Except for Crystal Coast Grand Prix race participants and vessels already at berth, a vessel or person would have to get permission from the COTP or Event PATCOM to remain in the regulated area during an enforcement period or to enter the regulated area. Vessel operators would be required to request permission to enter and transit through the regulated area by contacting the Event PATCOM on VHF-FM channel 16. Vessel traffic would be able to safely transit the regulated area once the Event PATCOM deemed it safe to do so. A vessel within the regulated area would have to operate at safe speed that minimized wake. A person or vessel not registered with the event sponsor as a participant or assigned as official patrols would be considered a spectator. Official Patrols would include any vessel assigned or approved by the Commander, Coast Guard Sector North Carolina with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign. Official Patrols enforcing this regulated area can be contacted on VHF-FM channel 16 and channel 22A.

If permission is granted by the COTP or Event PATCOM, a person or vessel would be allowed to enter the regulated area or pass directly through the regulated area as instructed. A spectator vessel would be prohibited from loitering within the Race Zone, Buffer Zone, or other portions of the navigable channel while it was within the regulated area. Official patrol vessels would direct spectators to the designated spectator area. Only participant vessels would be allowed to enter the Race Area, and the Buffer Zone, if necessary.

The proposed duration of this SLR is intended to protect participants and spectators on the navigable waters of the AICW and Beaufort Inlet during the high-speed boat race. Vessels could request permission to pass through the SLR between race heats. No vessel or person would be permitted to enter the SLR without obtaining permission from the COTP North Carolina or a designated representative. The regulatory text we are proposing appears at the end of this document.

We developed this proposed 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 NPRM has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, and duration of the SLR. Vessel traffic would not be allowed to enter or transit a portion of the AICW or Beaufort Inlet during an active race event from 10 a.m. through 6 p.m. each year on the second or last Friday, Saturday, and Sunday in September. The rule would, however, allow vessels to request permission to pass through the regulated area between race heats. The Coast Guard will transmit a BNM via VHF-FM marine channel 16, publish an MSIB, and post a LNM regarding the enforcement period of the SLR.

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 proposed rule would not have a significant economic impact on a substantial number of small entities.

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

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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 proposed rule. If the proposed 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. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

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 proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.

We have analyzed this proposed 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 made a preliminary determination 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 proposed rule involves an SLR to be enforced during active race events. Normally such actions are categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Memorandum for the Record supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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.

We view public participation as essential to effective rulemaking and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision-Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2023-0510 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. Also, if you click on the Dockets tab and then the proposed rule, you should see a “Subscribe” option for email alerts. The option will notify you when comments are posted, or a final rule is published.

We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

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

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

In 2019, the Minnesota Pollution Control Agency (MPCA) began discussions with the Coast Guard and other stakeholders to explore establishing Regulated Navigation Areas for some of the St. Louis River Area of Concern project sites. The purpose of these Regulated Navigation Areas is to prevent disrupting engineered remedies that are a part of the St. Louis River Area of Concern sediment remediation projects from unauthorized human disturbance at several remedial action sites containing contaminated sediment. The Federal Great Lakes Restoration Initiative funded these remedial actions under the Great Lakes Legacy Act provisions in order to improve human and environmental health by reducing exposure to contaminated riverbed sediments via a variety of engineered methods. To prevent future exposure to the contained contaminants, the engineered remedies need protection from disturbance. In 2022, the Minnesota Pollution Control Agency notified the Coast Guard which sites and areas would be appropriate for Regulated Navigation Areas. The Captain of the Port of Duluth (COTP) has determined that protection of these remedies will also protect human and environmental health.

The purpose of this rulemaking is to ensure the protection of the remedies, human health, and the environment in the suggested Regulated Navigation Areas. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

Coast Guard District Nine is proposing to establish the Regulated Navigation Areas in order to mitigate any potential unforeseen disruption to the remediated St. Louis River Area of Concern sites. The Regulated Navigation Areas would cover these six remediation sites: Minnesota Slip, Duluth, MN; Slip 3, Duluth, MN; Slip C, Duluth, MN; Azcon/Duluth Seaway Port Authority Grafield Slip C, Duluth, MN; St. Louis River/Interlake/Duluth Tar, Duluth, MN; U.S. Steel/Spirit Lake, Duluth, MN. Specific coordinates are included in the supplemental regulatory text. All vessels and persons are prohibited from activities that would disturb the integrity of the engineered remedies designed to address contaminated sediments at these sites. Activities may include, but are not limited to: anchoring, dragging, spudding, propeller scouring, or dredging. The regulatory text we are proposing appears at the end of this document.

The creation of the Regulated Navigation Areas will render the need for established safety zones at two sites obsolete, so this rulemaking would also repeal § 165.905 USX Superfund Site Safety Zones: St. Louis River and § 165.927 Safety Zone; St. Louis River, Duluth/Interlake Tar Remediation Site, Duluth, MN.

We developed this proposed 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 NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the necessity to avoid disrupting these remediated St. Louis River Area of Concern sites under most circumstances. Dredging projects for slips in the impacted areas which may need to be dredged in the future require review by state agencies prior to dredging. Thus, there should be little disruption and/or plans to resolve any disturbance to existing remedies prior to dredging projects.

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 proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the Regulated Navigation Areas may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this proposed rule would economically affect it.

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 proposed rule. If the proposed 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. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nothing in this proposed rule will preempt the rights to hunt, fish, and gather granted to Indian tribes under the 1854 Treaty with the U.S. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

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 proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.

We have analyzed this proposed 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 made a preliminary determination 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 proposed rule involves all vessels. Normally such actions are categorically excluded from further review under paragraph L[60a] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2023-0369 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:

Rationale. The EPA received a request for additional time to review and comment on the supplemental proposed rule from a regulated entity (Freeport-McMorRan Miami, Inc.). This request is available in the docket (Docket ID No. EPA-HQ-OAR-2020-0430). They noted that a document in the docket (Docket ID No. EPA-HQ-OAR-2020-0430) contained typographical errors. Specifically, the memorandum that was intended to show the proposed rule edits (in redline strikeout) that would be necessary to incorporate the changes to 40 CFR part 63, subpart QQQ proposed in the action published on July 24, 2023 (88 FR 47415) was inadvertently converted to a clean document before it was posted to the docket. We posted the updated correct document to https://www.epa.gov/stationary-sources-air-pollution/primary-copper-smelting-national-emissions-standards-hazardous-air, to replace the previous document (that had the typographical errors). We also added the correct document to the docket, under Docket ID No. EPA-HQ-OAR-2020-0430, which is available at https://www.regulations.gov, and notified the entity within 8 days of publication of the supplemental notice. After considering this request, the EPA has decided to extend the public comment period by 15 days to provide all parties with an opportunity to review the updated document. The public comment period will now end on September 22, 2023.

Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2020-0430. All documents in the docket are listed in https://www.regulations.gov/. Although listed, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. With the exception of such material, publicly available docket materials are available electronically in Regulations.gov .

Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2020-0430. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov/, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit electronically to https://www.regulations.gov/ any information that you consider to be CBI or other information whose disclosure is restricted by statute. This type of information should be submitted as discussed below.

The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The https://www.regulations.gov/ website allows you to submit your comment anonymously, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through https://www.regulations.gov/, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets.

Submitting CBI. Do not submit information containing CBI to the EPA through https://www.regulations.gov/. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, note the docket ID, mark the outside of the digital storage media as CBI, and identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI directly to the public docket through the procedures outlined in Instructions above. If you submit any digital storage media that does not contain CBI, mark the outside of the digital storage media clearly that it does not contain CBI and note the docket ID. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2.

Our preferred method to receive CBI is for it to be transmitted electronically using email attachments, File Transfer Protocol (FTP), or other online file sharing services ( e.g., Dropbox, OneDrive, Google Drive). Electronic submissions must be transmitted directly to the OAQPS CBI Office at the email address oaqpscbi@epa.gov, and as described above, should include clear CBI markings and note the docket ID. If assistance is needed with submitting large electronic files that exceed the file size limit for email attachments, and if you do not have your own file sharing service, please email oaqpscbi@epa.gov to request a file transfer link. If sending CBI information through the postal service, please send it to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, P.O. Box 12055, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2020-0430. The mailed CBI material should be double wrapped and clearly marked. Any CBI markings should not show through the outer envelope.

This is a summary of the Commission's NOI in WC Docket Nos. 10-90, 14-58, 09-197, 16-271; RM 11868, adopted on July 23, 2023 and released on July 24, 2023. Due to the COVID-19 pandemic, the Commission's headquarters will be closed to the general public until further notice. The full text of this document is available at the following internet address: https://www.fcc.gov/document/fcc-adopts-plan-bring-reliable-broadband-rural-communities .

Ex Parte Presentations—Permit-But-Disclose. The proceedings this NOI and concurrently adopted NPRM initiate shall be treated as “permit-but-disclose” proceedings in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies).

In light of the Commission's trust relationship with Tribal Nations and its commitment to engage in government-to-government consultation with them, it finds the public interest requires a limited modification of the ex parte rules in these proceedings. Tribal Nations, like other interested parties, should file comments, reply comments, and ex parte presentations in the record to put facts and arguments before the Commission in a manner such that they may be relied upon in the decision-making process consistent with the requirements of the Administrative Procedure Act. However, at the option of the Tribe, ex parte presentations made during consultations by elected and appointed leaders and duly appointed representatives of federally recognized Indian Tribes and Alaska Native Villages to Commission decision makers shall be exempt from disclosure in permit-but-disclose proceedings and exempt from the prohibitions during the Sunshine Agenda period. To be clear, while the Commission recognizes consultation is critically important, it emphasizes that they will rely in its decision-making only on those presentations that are placed in the public record for these proceedings.

Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in these proceedings should familiarize themselves with the Commission's ex parte rules.

1. With the NOI, the Commission takes significant next steps in achieving its goal of ensuring all consumers, even those living in the costliest areas in the nation, have access to affordable and reliable broadband service so that they can work, learn, engage, and obtain essential services no matter where they live. The Commission also focuses on the future and seeks comment on how to reform its high-cost programs so that it can continue to efficiently promote broadband deployment and meaningfully support networks long term in the face of a significantly changing broadband landscape.

2. The NOI seeks to build a record to help the Commission explore methods to ensure universally affordable and available fixed broadband services into the future, in light of section 254(c)(1)'s definition of universal service as an “evolving level of . . . service, taking into account advances in telecommunications and information technologies and services.” The Commission seeks comment on whether and how it should modify its USF high-cost support program considering the anticipated deployment in most high-cost areas of robust, scalable, next-generation broadband networks offering a minimum of 100/20 Mbps service made possible through Commission programs, programs created by the Infrastructure Act, and other state and Federal subsidy programs. In the past, the high-cost support program largely sought to incrementally upgrade deployed broadband network speeds in high-cost areas. In areas where robust scalable networks such as fiber are deployed, however, future speed upgrades may be relatively low cost. The Commission's traditional approach, therefore, may no longer be well-suited to a changed broadband landscape. In the Future of USF Report, the Commission stated in such landscape, it “could consider the creation of a process to support operating costs that are not recoverable from revenues earned when prices are set at just, reasonable, and affordable levels and from other sources of income, e.g., governmental grants.” This NOI explores several options for how this could be accomplished, including through cost modeling, business case analysis, and competitive mechanisms. In addition, given that broadband adoption rates in rural areas still lag considerably behind those in urban areas, the Commission explores whether the high-cost program's focus should be redirected towards a goal of universal broadband adoption and affordability. The Commission seeks comment on these approaches and invites comment on other approaches for how best to further the Commission's universal service goals.

3. The Commission's focus since the USF/ICC Transformation Order, 76 FR 73830, November 29, 2011, has been on supporting the deployment of new, robust networks and their associated operational costs for a limited term. However, providers in high-cost areas that already operate such fully deployed networks might not have a business case for continuing to operate those networks and provide services absent ongoing programmatic support that will augment existing revenues. Similarly, providers that receive support under programs such as the Broadband, Equity, Access, and Deployment Program (BEAD) that are designed to kick-start network deployment without providing support for sustained operations may face similar circumstances. Depending on the scope of this problem, lack of funding could threaten the sustainability of these full-service networks in high-cost areas. Accordingly, with the NOI, the Commission will assess the scope of this problem and explore whether it should adopt a mechanism or process to address, including soliciting information about the best methods for determining the support needed by carriers to efficiently maintain these full-service networks. The Commission seeks comment on appropriate methods of measuring and evaluating the future support needs of carriers with full-service networks, particularly where providers have received significant upfront Federal and/or state funding. The Commission seeks comment on whether differences in how providers were previously subsidized should be considered to avoid paying for the same costs twice, and if so, how.

4. The Commission expects this effort will require, at a minimum, determining which networks should be considered full service and thus, potentially eligible for sustainability support, and which full-service networks should be deemed ineligible because their operations are economically viable independent of such support. Further, to assess economic viability of continued operations, the Commission will need to determine capital costs (including the cost of debt and equity), operating costs, and the estimated revenues from network over time, which in turn requires estimates of penetration rates. In estimating expected costs and revenues, the Commission should consider any current or expected support and may need to consider expected inflation rates. In developing a methodology for determining the need for ongoing support for operating expenses, the Commission must also consider how often to recalculate the need for support and how it can ensure that other past, current, and future support are properly considered. The Commission seeks comment on this approach and these considerations against the backdrop of the universal service goals adopted in the Future of USF Report.

5. Within its high-cost programs, the Commission has measured successful deployment based on meeting and sustaining certain public interest obligations, including specific service speeds and latency. The Commission expects a support program designed to sustain operations would meet consumers' service and pricing needs. The Commission seeks comment on what those needs should be. How should the Commission define a full-service network, meaning a network potentially eligible for sustainability support? Should the Commission factor in network performance standards, if any, that the provider was required to meet pursuant to the terms and conditions of other Federal or state funding, and if so, how? Are there other requirements that the Commission should adopt as part of its definition of a full-service network?

6. In addition, to what extent must a full-service network deploy service to residential and business locations within an area? Does the Commission need to factor in businesses that would take mass market service versus ones expected to subscribe to an enterprise service? For example, should the Commission require, as a prerequisite to any funding, that the network can turn on service in a set number of days, e.g., 7-10 days, to each broadband serviceable location identified in the Fabric, which serves as the foundation for availability data in the National Broadband Map? Should the Commission factor in the deployment obligations under other Federal or state programs, and if so, how? Should the Commission require a provider claiming to operate a full-service network to show that it can extend service to any new locations within a defined period? What kinds of information would the Commission ask such providers to submit to make these showings?

7. The Commission also seeks comment on whether the definition of a full-service network should differ for areas outside the contiguous United States or for Tribal lands, and if so, how? How should the Commission define Tribal lands when considering the definition of a full-service network? What unique characteristics of such areas should the Commission consider? Should the Commission evaluate whether, and if so, to what extent, those factors impact the carrier through individualized reporting, or should the Commission presume that these factors generally exist for all carriers serving these areas? For example, the Commission has permitted carriers to use Alaska Plan support to maintain service to existing locations without upgrade if they can demonstrate that they were not able to deploy additional service or upgrade their facilities (usually due to limited access to middle mile facilities). Should the Commission define a full-service network in Alaska or other remote and isolated areas with reference to existing service in those areas? Should there be some minimum deployment requirement or public interest standards?

8. The Commission seeks comment on whether it can or should leverage its existing cost models, or develop a new model, to estimate the monthly costs necessary to sustain a full-service network. If so, what would be the key assumptions about the design of the network and network engineering? For example, the Connect America Cost Model (CAM) assumes a green-field, internet protocol (IP)-based fiber-to-the-premises network capable of providing both voice-grade access and broadband services. The Commission estimates the terminal value of the network at the end of a five-year term determined by the book value of the assets. Should the Commission use the same assumptions, standards, and attributes when referring to a full-service efficient network? What would be the appropriate topology of this network? What other assumptions, standards, and attributes should the Commission use? For example, what is the appropriate geographic unit for evaluating costs and revenue, e.g., census blocks or individual locations?

9. The Commission also seeks comment on how it addresses costs in areas in which locations are served by multiple carriers, but not all locations are served by all carriers. For example, does the Commission need to disaggregate the costs of serving such areas and if so how should it do so? Are there common costs for all locations for a carrier serving an area that must be taken into account even if the carrier is the sole provider for some but not all of the locations in the area?

10. Currently, the Commission models the forward-looking operating costs of an efficient network using a range of data sources organized and aligned with relevant cost drivers, i.e., demand and associated capital investments. The model estimates the annualized total cost (including operating costs) of deploying a network using today's technology to all locations within a specified geographic area less an assumed per-location expected revenue. When adopting this approach, the Commission specifically rejected a proposed model that would limit support to brownfield development because, while a brownfield model accounts for the cost of initial upgrades to the extent that the existing network is not up to standard, a brownfield model does not account for replacement capital after an initial capital investment is made. Should the Commission use the same approach here, a modified version of this approach, or a new approach?

11. Inputs. What inputs should the Commission use to quantify certain operating and capital costs, and what should those costs be, e.g., costs associated with making networks scalable to consumer demands and needs? In developing the CAM, the Commission took steps to account for a range of operating costs by considering, among other things, network operations expenses (both plant specific and plant non-specific, factoring company size and by density), general and administrative costs (including property tax indices by state), selling and marketing costs, and bad debt. Can this approach be readily adapted to estimate the support necessary to sustain networks that have been full-service? Are there other factors that should be considered when estimating operating costs? Should the Commission adjust the model on a routine basis to account for changes to costs and if so, how often should this be done?

12. The CAM uses Annual Charge Factors (ACFs) to capture the cost of capital investments that are used over time, accounting for depreciation, income taxes, and cost of money. The cost of capital is the cost a firm will incur in raising funds in a competitive capital market based on a firm's overall systematic risk, and is generally estimated as a weighted average of the cost of equity and the cost of debt. In order to adopt final values for ACFs, the Commission must make certain assumptions regarding asset depreciation, income taxes, and the cost of money. For example, CAM determines the terminal value of the network based on “book value” calculated as the difference between investment and economic depreciation, which takes into account the economic life of the equipment and infrastructure. To determine a CAM input to capture the cost of money, the Commission used an analytical approach to establish a “zone of reasonableness,” and selected an input at the midpoint of that range. What assumptions about each input are relevant here?

13. How should a model supporting full-service networks reflect the carrier's composition of capital? Prior models have not recognized carrier-specific mixes of debt and equity financing, instead reflecting a uniform cost of capital for all carriers subject to a particular model. If the Commission were to adopt a uniform cost of capital, how would it identify that cost and how often should it be reevaluated? Should that evaluation differ, as it does now, between carriers operating in price-cap areas receiving support through the CAM and rate-of-return carriers receiving support through the Alternative Connect America Cost Model? How should the Commission evaluate the impact of other sources of capital (such as Federal and state grants)? In determining the cost of capital, does it matter whether different carriers have different debt-equity ratios? If a carrier has chosen a relatively expensive form of financing, should the Commission provide support that validates that choice? Would this approach be consistent with treating carriers equally? Are there circumstances in which using a uniform cost of capital would create problems? Are such circumstances common? Could the waiver process resolve such instances?

14. Should capital inputs differ for carriers operating in areas outside the contiguous United States, and if so, how? For the CAM, the Commission incorporated specific factors to generate unique inputs for carriers operating in non-contiguous states and territories (such as the United States Virgin Islands, Puerto Rico, Alaska, and other areas), including those relating to the plant mix, undersea and submarine cable, terrain methodology, state-specific inputs, and company size. Should these same factors be taken into consideration when developing a model for sustaining full-service networks? Should other factors be taken into consideration?

15. Data sources. What objective, up-to-date, and available data sources can the Commission use in the development of this cost model? Alternatively, or in addition to such sources, should the Commission require the submission of accounting and financial information to model costs, revenues, past one-off grants, and similar? Should the Commission require submission of information on specific and approved network plans, to the extent there are any, and associated funding? What other kinds of information should the Commission collect to ensure realistic cost model and revenue estimates? And how often should this information be collected? For example, should it be collected periodically (annually or biennially, etc.) or only as current support arrangements come to their end, or some other way? What are the benefits and costs of different information collection timing choices? What would be the benefits of collecting and consolidating such information to supplement or replace other general industry research? What would be the administrative costs and resources required for completing this process? How could the Commission make use of this information while avoiding the pitfalls of rate-of-return regulation?

16. Revenues. How would the Commission model the present value of expected revenues of an efficient full-service network? How should the Commission account for the fact that providers receiving current support must set prices to mass market customers that are reasonably comparable to urban rates? For the CAM model, the Commission adopted a funding benchmark that takes into account both assumed expected revenues per subscriber and an assumed subscription rate, and the model calculates support for areas where such assumed revenues do not cover costs up to an extremely high cost threshold consistent with the budget. For full-service networks, should the Commission similarly take into consideration the actual take rate (subscribership) of these networks, particularly in and to areas where subscribership is influenced by regional factors such as limited income, mobile populations, and other factors? How would the Commission measure and account for variable investments, and effectiveness, in marketing? Should expected take rates differ when measuring revenue and costs?

17. How should the Commission account for revenue received from other Federal and state grants that provide support on a one-time basis for deployment or provide continuing support to sustain operations? Where urban broadband providers are unsubsidized and not subject to meeting a rate benchmarks, urban rates can adjust upwards when costs rise. Since rural rates can be set to the urban rate benchmark, could the Commission assume any future rural cost increases could be recovered by accompanying rural price increases? Is there a reason to think that rural costs could rise at rates materially above the rate of increase in urban costs? If so, would the requirement to provide services that are reasonably comparable to urban services in quality and price not allow USF supported providers to fully recover their costs?

18. Updates. How often should the Commission consider updates to an ongoing support model? Several commenters in the Future of USF proceeding asserted that funding should be made available for network improvements responsive to changes in consumer demands. Such changes could require adjustments to the model and/or model inputs. How would the Commission determine when such changes should or must be made? Could this be achieved, consistent with the Commission's past practice, by setting service standards and subsidy amounts for a set period, in order to grant providers a degree of certainty while allowing periodic adjustment? What would an appropriate support term be to offer certainty to providers while limiting inefficient payments? Should a support term consider the pace of technological development, changing geographic and demographic conditions, or other factors? Should updates to the model similarly consider such changing circumstances?

19. Alternatives to a model. The Commission next asks about other alternatives to a model. There may be certain disadvantages to the model-based approach. For example and based on previous experience, it may take some time, several years, to develop and update the model. In addition, a model makes certain assumptions of uniformity among potential support recipients, including uniform assumptions about cost, particularly given terrain and population characteristics, and uniform penetration and expected revenues. The CAM, as currently designed does not take into consideration other sources of support, such as those from the states or Federal agencies. In light of these complications, are there any alternatives to a model that the Commission should consider?

20. Given that the adaption of existing models is likely to require significant time and investment, should the Commission prioritize other approaches? Should the Commission adopt an interim plan for providing support while the cost model is developed? For example, as suggested in one publication, the Commission could measure the need for universal service support by requiring applicants for support to answer certain standard financially-oriented questions, the answers to which would then be fed into a standard financial model. This model would take into account potential sources of finance (including the cost of equity and debt and other possible sources of support), the cost of the initial build-out (or initial network capex), the relative amounts of fixed and success-based capex, the penetration rate and changes in the penetration rate over time, and projected revenues. One advantage of this approach is that it can permit the Commission to take into account the individual characteristics of the applicants for support. The Commission seeks comment on this approach.

21. Since the USF/ICC Transformation Order, the Commission has sought to use competitive processes to determine support levels. The Commission seeks comment on whether it should use such competitive mechanisms going forward to assign universal service support obligations and determine support levels, either in the context of determining ongoing operating support or more generally to achieve its universal service goals. Would it be possible to competitively determine support levels following the BEAD Program, and are there areas where competitive mechanisms could not be used? What obligations should apply to winners of support? One approach for using a competitive mechanism would be to change the focus of the high-cost program from the deployment of networks towards the long-standing universal service goals of universal affordability and adoption. The most recent internet Access Services Report shows that broadband adoption rates in the wealthiest and most dense areas of the country are well above 90 percent, but below 40 percent in some of the least dense and poorest areas of the country. The Commission seeks comment on whether and how the USF high-cost program could be reoriented towards closing these substantial digital equity and affordability gaps. Should the Commission consider reorienting its high-cost programs towards closing the adoption and affordability gaps in high-cost areas?

22. The Commission also asks about force majeure events and whether and how a high-cost program focused on providing ongoing operating support should account for these events. Are there events that providers cannot reasonably anticipate, or insure against, that will materially affect the need for universal service support going forward? Are these location-specific events, or is it possible to accommodate support needed in responses to these events equally across the United States and territories? If the USF were to cover certain unforeseeable costs that a carrier could not reasonably anticipate, such as generally rare weather-related events ( e.g., hurricanes, volcanic eruptions, tornados, floods), should the Commission establish and administer a separate funding mechanism? Or would it be simpler to incorporate such costs in the broader universal service program? The Commission also seeks information about the role private, commercial or government insurance can play in helping to offset the financial harm caused by these events.

23. Area eligibility. The Commission next seeks comment on areas and locations eligible to receive support. When would a full service network be deemed or become economically viable without continuing support, and thus become ineligible for support? Consistent with past Commission policy, it expects to preclude support to any overbuilt locations, i.e., locations where an unsubsidized network provider offers broadband services comparable to those in urban areas at comparable prices and seeks comment on maintaining this policy going forward. What parameters should the Commission place around such a restriction? Should the Commission also preclude support to locations or areas where future overbuild is likely to occur? How would the Commission identify these areas? How would the Commission ensure the overbuild rates would remain comparable to urban rates if the subsidized provider were to exit the market? If the Commission does not provide support in areas with an unsubsidized competitor, how would it ensure the overbuild rates would remain comparable to urban rates if the subsidized provider were to exit the market?

24. The Commission has an obligation to limit support to carriers to no more than necessary and to encourage carriers to be prudent and efficient in their expenditures, including operating as well as capital expenses. First and foremost, the Commission must ensure that its support mechanisms remain responsive to consumer needs by balancing the need for affordable broadband service against the burden on contributors to the USF. How should the Commission determine a budget for ongoing support to sustain operations of a full-service network operating in high-cost areas while protecting the interests of ratepayers? Can the Commission use a cost model to set a budget or should it use some other means, and if so, what should those means be?

25. Further, to ensure that support does not continue for a longer time period than carriers will need such support, the Commission expects that a fixed term for support is necessary to permit the Commission to revisit carriers' support eligibility. A set support term has the advantage of providing firms with good incentives to reduce costs from the start and adds predictability to revenue estimates. Incentives for cost reduction arise because, for the duration of the promised payments, any cost reductions directly increase the provider's profit. The Commission seeks comment on this position.

26. How long should the support term be and what data or assumptions should the Commission use to evaluate term length? Should it be based on predictions regarding how quickly consumer demand will change or on routine evaluations of factors that define high-cost areas, such as population density? How should the Commission coordinate the support term and the schedule for updating the model? Should support terms differ based on the probability of unsubsidized competition developing? Should there be automatic triggers for cutting off funding, perhaps with a glide path, if, for example, population reaches a certain density? Should the Commission reserve the right to revisit ongoing commitments in the light of radical technological change? How should the Commission account for the pace of technological development and how that may end up affecting service demand/expectations, while also balancing the effect that would have potentially on support amounts and contributions?

27. The Commission's current high-cost programs include specific, defined service obligations for deployment and specific reporting requirements. In addition, the Commission requires recipients of high-cost support to participate in performance testing to monitor compliance with speed and latency requirements, which includes conducting, at a minimum, one download test and one upload test per testing hour at each subscriber test location over a week time frame each quarter and to provide that information to the Commission. Performance testing has protected ratepayers' investment and ensured that carriers receiving universal service high-cost support deploy networks that meet the performance standards they promised to deliver. To ensure accountability in the use of support to sustain operation of full-service networks, should the Commission consider adopting similar rules for a future funding mechanism or should it require annual reporting regarding the state of facilities, business operations, and other factors? Should the Commission require annual or quarterly performance testing and if so, what would be the parameters of such testing? If performance testing shows that a provider has failed to meet the requirements imposed for continuing support receipt, should the support be placed on hold until the problems are remediated? What kind of time limit should the Commission impose to remediate? Should the Commission implement any mechanisms similar to those used for other high-cost programs, such as receipt of a letter of credit, that would enable recovery of disbursed support in the event of default? Should the Commission limit these requirements to service providers that are currently receiving support?

28. The document does not contain proposed 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).

29. It is further ordered that, pursuant to the authority contained in sections 4(i), 214, 218-220, 254, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 214, 218-220, 254, 303(r), and 403, and § 1.1 of the Commission's rules, 47 CFR 1.1, this Notice of Inquiry is adopted . The Notice of Inquiry will be effective upon publication in the Federal Register , with comment dates indicated therein.

Background

Under section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq. ), we are required to make a finding on whether or not a petitioned action is warranted within 12 months after receiving any petition that we have determined contains substantial scientific or commercial information indicating that the petitioned action may be warranted (hereafter a “12-month finding”). We must make a finding that the petitioned action is: (1) Not warranted; (2) warranted; or (3) warranted but precluded by other listing activity. We must publish a notification of these 12-month findings in the Federal Register .

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations at part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Lists of Endangered and Threatened Wildlife and Plants (Lists). The Act defines “species” as including any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1532(16)). The Act defines “endangered species” as any species that is in danger of extinction throughout all or a significant portion of its range (16 U.S.C. 1532(6)), and “threatened species” as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(20)). Under section 4(a)(1) of the Act, a species may be determined to be an endangered species or a 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.

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

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself. However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the Act's definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

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

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

In conducting our evaluation of the five factors provided in section 4(a)(1) of the Act to determine whether the Alexander Archipelago wolf, Cooper's cave amphipod, Georgia blind salamander, minute cave amphipod, Morrison's cave amphipod, narrow-foot hygrotus diving beetle, pristine crayfish, and Tennessee heelsplitter meet the Act's definition of “endangered species” or “threatened species,” we considered and thoroughly evaluated the best scientific and commercial information available regarding the past, present, and future stressors and threats. In conducting our evaluation of the Chihuahua catfish, we determined that it does not meet the definition of a “species” under the Act, and, as a result, we conclude that it is not a listable entity. We reviewed the petitions, information available in our files, and other available published and unpublished information for all these species. Our evaluation may include information from recognized experts; Federal, State, and Tribal governments; academic institutions; foreign governments; private entities; and other members of the public.

In accordance with the regulations at 50 CFR 424.14(h)(2)(i), this document announces the not-warranted findings on petitions to list nine species. We have also elected to include brief summaries of the analyses on which these findings are based. We provide the full analyses, including the reasons and data on which the findings are based, in the decisional file for each of the nine actions included in this document. The following is a description of the documents containing these analyses:

The species assessment forms for Alexander Archipelago wolf, Cooper's cave amphipod, Georgia blind salamander, minute cave amphipod, Morrison's cave amphipod, narrow-foot hygrotus diving beetle, pristine crayfish, and Tennessee heelsplitter contain more detailed biological information, a thorough analysis of the listing factors, a list of literature cited, and an explanation of why we determined that each species does not meet the Act's definition of an “endangered species” or a “threatened species.” To inform our status reviews, we completed species status assessment (SSA) reports for the Alexander Archipelago wolf, Cooper's cave amphipod, Georgia blind salamander, minute cave amphipod, Morrison's cave amphipod, narrow-foot hygrotus diving beetle, pristine crayfish, and Tennessee heelsplitter. Each SSA report contains a thorough review of the taxonomy, life history, ecology, current status, and projected future status for each species. The species assessment form for the Chihuahua catfish contains more detailed taxonomic information, a list of literature cited, and an explanation of why we determined that the species does not meet the Act's definition of a “species.” This supporting information can be found on the internet at https://www.regulations.gov under the appropriate docket number (see ADDRESSES , above).

On July 15, 2020, we received a petition from the Center for Biological Diversity, Alaska Rainforest Defenders, and Defenders of Wildlife, requesting that the Alexander Archipelago wolf subspecies in Southeast Alaska be listed as a threatened species or an endangered species and critical habitat be designated for this species under the Act. The petitioners requested that we recognize Alexander Archipelago wolves in Southeast Alaska as a distinct population segment (DPS), and evaluate this DPS for listing as threatened or endangered. The petitioners also requested that we evaluate the Alexander Archipelago wolf subspecies for listing where Southeast Alaska constitutes a significant portion of the range. On July 27, 2021, we published a 90-day finding (86 FR 40186) that the petition contained substantial information indicating that listing may be warranted for the species. This document constitutes our 12-month finding on the July 15, 2020, petition to list the Alexander Archipelago wolf under the Act.

We evaluated the Southeast Alaska population of AA wolf under our 1996 DPS policy (61 FR 4722) and found that it met both the discreteness and significance criteria. The population is discrete based on the international governmental boundary between the United States (Alaska) and Canada (British Columbia) within which significant differences in control of exploitation, management of habitat, and regulatory mechanisms exist. The population meets the significance criteria because the loss of the Alexander Archipelago wolves in Southeast Alaska would result in a significant gap in the range of the taxon because an extensive area would be without Alexander Archipelago wolves if the Southeast Alaska population were lost. For a more detailed discussion of our DPS analysis, please see the species assessment form.

Given the best available information related to the DPS Policy's discreteness and significance criteria, we determined that the Southeast Alaska segment of the Alexander Archipelago wolf population meets the DPS Policy criteria for both the discreteness criteria and the significance criteria. Thus, in addition to our listing evaluation and finding on the Alexander Archipelago wolf range-wide, we also evaluated the Southeast Alaska DPS, as requested by the petition.

The Alexander Archipelago wolf is a subspecies of gray wolf that occurs along the coastal mainland and islands of Southeast Alaska and British Columbia. Based on the best available information, the current distribution of the species is similar to its historical distribution.

There are gaps in our understanding of the life history of the Alexander Archipelago wolf; thus, when appropriate, we have applied information from gray wolves and other gray wolf subspecies. Alexander Archipelago wolves breed between 22 to 34 months of age, and litters range from 1 to 8 pups. Denning typically occurs from mid-April through early July; throughout the rest of the year Alexander Archipelago wolves are traveling, hunting, or dispersing. Alexander Archipelago wolves are capable of dispersing long distances, both on land and water, although there are many examples of these wolves avoiding water crossings. Pack sizes typically range between 2 and 12 wolves, although much larger groups have been observed. Alexander Archipelago wolves are opportunistic predators that eat a variety of prey species, yet, like gray wolves, ungulates compose most of their diet. Across the range of the species, Sitka black-tailed deer ( Odocoileus hemionus sitkensis ) and moose ( Alces americanus ) make up 75 percent of the wolf's diet. Alexander Archipelago wolves are habitat generalists, typically utilizing whatever habitat their preferred prey use and avoiding areas of intense human activity. Old-growth forests, which Alexander Archipelago wolves select for, make up a majority of home range areas, and areas near freshwater are also selected by wolves during denning.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Alexander Archipelago wolf, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these threats. The primary threats affecting the Alexander Archipelago wolf's biological status include timber harvest and associated road development, harvest of wolves, and genetic inbreeding. Although disease and climate change may not be currently impacting the species, the best available information indicates that these factors could have impacts on the species' viability in the future.

After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we assessed the current status of the Alexander Archipelago wolf to determine if it meets the definition of an endangered species or threatened species. Our assessment of Alexander Archipelago wolf current viability included the primary threats of timber harvest and associated road development, harvest of wolves, and genetic inbreeding. To evaluate overall current population resiliency of the Alexander Archipelago wolf, we ranked each population into a current condition category ( i.e., high, moderately-high, moderate, moderately-low, low, or functionally extirpated) based on estimates of population growth, and the species' needs which include dietary diversity, area of old-growth forest available, and remoteness ( i.e., space from human activity; Table 3 of the SSA Report). Despite past and ongoing threats, Alexander Archipelago wolf currently occupies five analysis units that span its historical range, three of which exhibit high resiliency (Northern and Southern Coastal British Columbia and Northern Southeast Alaska), one with moderately high resiliency (Southern Southeast Alaska), and one with moderately low resiliency (Prince of Wales Island Complex). Currently, Alexander Archipelago wolves appear to have high adaptive capacity, and we expect most populations to be able to adapt to near-term changes in their physical and biological environments. The exception to this is the Prince of Wales Island Complex analysis unit.

Within the Prince of Wales Island Complex analysis unit, high levels of inbreeding have been documented, and ungulate prey is limited compared to the rest of the range. These characteristics limit the adaptive capacity of wolves within this analysis unit. Nonetheless, based on the best available information, the Prince of Wales Island Complex analysis unit demonstrates stable population trends. Overall, the Alexander Archipelago wolf is widely distributed across its current and historical range indicating that it has high redundancy (ability to withstand catastrophic events) and overall high representation (adaptive capacity), contributing to its overall viability. Thus, after assessing the best available information, we conclude that the Alexander Archipelago wolf is not in danger of extinction throughout all of its range.

To assess future viability of the Alexander Archipelago wolf, we considered the foreseeable future out approximately 30 years (to 2050) and projected the influence of three future scenarios that included disease and climate change and the other primary threats included in the assessment of current viability. The Alexander Archipelago wolf is projected to retain high to moderate levels of resiliency within four of the five analysis units, and no significant loss in distribution is predicted across its range. The exception is the Prince of Wales Island Complex analysis unit, which is projected to decline in resiliency under most scenarios, and under one scenario, projections indicate possible extirpation. However, the Prince of Wales Island Complex analysis unit represents a relatively small area (approximately 4.5 percent; Service 2023, p. 110) compared to the overall geographic range of the species, and a relatively small proportion of the rangewide population estimate (17 percent; Service 2023, pp. 90-91). Thus, after assessing the best available information, we conclude that the Alexander Archipelago wolf is not likely to become endangered within the foreseeable future throughout all of its range.

We evaluated the range of the Alexander Archipelago wolf to determine if the species is in danger of extinction now or likely to become so in the foreseeable future in any portion of its range. The Prince of Wales Island Complex analysis unit has moderately low resiliency now and ranges from moderate resiliency to functionally extirpated into the future. We found that this analysis unit may have a different status compared to the rest of the range. Within the Prince of Wales Island Complex analysis unit, high levels of old-growth timber harvest, road development, and inbreeding have been documented, and wolf harvest rates (reported and unreported) may also exceed sustainable levels in some years (Service 2023, p. 62). Additionally, ungulate prey is limited to just one species, the Sitka black-tailed deer, limiting adaptive capacity for wolves in this analysis unit. Although other analysis units may also face one or two threats from timber harvest, road development, inbreeding, wolf harvest, or prey availability, the Prince of Wales Island Complex is the only analysis unit that experiences all of these threats.

However, we did not find that the Prince of Wales Island Complex analysis unit represents a significant portion of the range for the Alexander Archipelago wolf. The Prince of Wales Island Complex analysis unit represents approximately 4.5 percent of the overall geographic range of the species (Service 2023, p. 110). Additionally, the Prince of Wales Island Complex analysis unit does not have high-quality habitat relative to the rest of the range. Contiguous patches of old-growth forest (at least 75 square kilometers) have been identified as the preferred habitat for this species and are considered high-quality habitat. The Prince of Wales Island Complex analysis unit contains 10.9 percent of the total preferred old-growth habitat that is available to the species rangewide (Service 2023, p. 110). Lastly, the habitat within the Prince of Wales Island Complex analysis unit is not considered unique for any specific life-history functions ( e.g., availability of denning habitat or ungulate prey); the species' preferred denning habitat is found in all other analysis units, and ungulate prey diversity is greater in the other analysis units. Thus, we do not consider the Prince of Wales Island Complex analysis unit to represent a large geographic area relative to the range of the species as a whole, to have higher quality habitat relative to the remaining portions of the range, or to represent uniquely valuable habitat for the species. We do not find that the Prince of Wales Island Complex analysis unit is significant. Therefore, the Prince of Wales Island Complex analysis unit does not represent a significant portion of its range, and we find that the Alexander Archipelago wolf is not in danger of extinction now or likely to become so in the foreseeable future in any significant portion of its range.

After assessing the best available information, we conclude that the Alexander Archipelago wolf is not in danger of extinction or likely to become in danger of extinction throughout all of its range or in any significant portion of its range. Therefore, we find that listing the Alexander Archipelago wolf as an endangered species or threatened species under the Act is not warranted.

The Southeast Alaska Alexander Archipelago wolf DPS occurs along the coastal mainland and islands of Southeast Alaska. Based on the best available information, the current distribution of the species is similar to its historical distribution.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Southeast Alaska Alexander Archipelago wolf DPS, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these threats. The primary threats affecting the Southeast Alaska Alexander Archipelago wolf DPS's biological status include timber harvest and associated road development, harvest of wolves, and genetic inbreeding. Although disease and climate change may not be currently impacting the species, the best available information indicates that these factors could have impacts on the species' viability in the future.

Our assessment of the current viability of the Southeast Alaska Alexander Archipelago wolf DPS included the primary threats of timber harvest and associated road development, harvest of wolves, and genetic inbreeding. Currently, one analysis unit exhibits high resiliency (Northern Southeast), one analysis unit exhibits moderately high resiliency (Southern Southeast), and one analysis unit exhibits moderately low resiliency (Prince of Wales Island Complex). Alexander Archipelago wolves in the Northern Southeast Alaska analysis unit and the Southern Southeast Alaska analysis unit appear to have high adaptive capacity, and we expect wolves in these analysis units to be able to adapt to near-term changes in their physical and biological environments. Even though the Southern Southeast Alaska analysis unit exhibits signs of recent and historical inbreeding, there is no evidence of a reduction in fitness related to inbreeding. Additionally, the Southern Southeast Alaska analysis unit has a greater potential for connectivity and therefore, gene flow, with other analysis units on the mainland, and it has a greater diversity of ungulate prey. Within the Prince of Wales Island Complex analysis unit, high levels of inbreeding have been documented and ungulate prey is limited compared to the rest of the range of the DPS. These characteristics limit the current adaptive capacity of wolves within the Prince of Wales Island Complex analysis unit. However, even with this additional stress, the population estimates for Prince of Wales Island Complex analysis unit indicate it is currently stable. Within the Southeast Alaska Alexander Archipelago wolf DPS, the species is distributed across its current and historical range, indicating that it has high redundancy (ability to withstand catastrophic events) and high representation (adaptive capacity), contributing to its overall viability. Thus, after assessing the best available information, we conclude that the Southeast Alaska Alexander Archipelago wolf DPS is not in danger of extinction throughout its range.

To assess future viability of the Southeast Alaska Alexander Archipelago wolf DPS, we considered the foreseeable future out approximately 30 years (to 2050) and projected the influence of three future scenarios that included disease and climate change, and the other primary threats included in the assessment of current viability. The Southeast Alaska Alexander Archipelago wolf DPS is projected to have high to moderate resiliency within the Northern Southeast Alaska analysis unit, moderately high resiliency in the Southern Southeast Alaska analysis unit, and moderate resiliency to a functionally extirpated status within the Prince of Wales Island Complex analysis unit. However, the Prince of Wales Island Complex analysis unit represents a relatively small percentage of the total geographic area of the Southeast Alaska Alexander Archipelago wolf DPS (approximately 13.2 percent) and approximately 30 percent of the overall Southeast Alexander Archipelago wolf DPS population. Thus, after assessing the best available information, we conclude that the Southeast Alaska Alexander Archipelago wolf DPS is not likely to become endangered within the foreseeable future throughout all of its range.

We then evaluated the range of the Southeast Alaska Alexander Archipelago wolf DPS to determine if the species is in danger of extinction now or likely to become so in the foreseeable future in any significant portion of its range. We looked at the entire range of the Southeast Alaska Alexander Archipelago wolf DPS and found that the Prince of Wales Island Complex analysis unit has moderately low resiliency now and ranges from moderately resilient to functionally extirpated into the future. We found that the Prince of Wales Island Complex may have a different status compared to the rest of the DPS range. Within the Prince of Wales Island Complex analysis unit, high levels of old-growth timber harvest, road development, and inbreeding have been documented, and wolf harvest rates (reported and unreported) may exceed sustainable levels in some years (Service 2023, p. 62). Additionally, ungulate prey is limited to just one species, Sitka black-tailed deer, limiting adaptive capacity for wolves in this analysis unit. Although the other analysis units may also face one or two threats from either timber harvest, road development, inbreeding, wolf harvest, or prey availability, the Prince of Wales Island Complex is the only analysis unit that experiences all of these threats. However, we did not find the Prince of Wales Island Complex analysis unit to represent a significant portion of the range of the Southeast Alaska Alexander Archipelago wolf. The Prince of Wales Island Complex analysis unit represents a relatively small portion of the geographic area of the Southeast Alaska Alexander Archipelago wolf DPS (approximately 13.2 percent). Additionally, the Prince of Wales Island Complex analysis unit does not have high-quality habitat relative to the rest of the range. Contiguous patches of old-growth forest have been identified as the preferred habitat for this species and are considered high-quality habitat. The Prince of Wales Island Complex analysis unit contains approximately 22.8 percent of high-quality habitat compared to the rest of the DPS range (Service 2023, p. 110). Lastly, the habitat on the Prince of Wales Island Complex analysis unit is not considered unique for any specific life-history functions ( e.g., denning habitat or prey diversity); denning habitat is found in the other analysis units within the DPS, and the other two analysis units have greater ungulate prey diversity compared to the Prince of Wales Island Complex. Thus, we do not consider the Prince of Wales Island Complex analysis unit to represent a large geographic area relative to the range of the DPS, to have higher quality habitat relative to the rest of the DPS, or to represent uniquely valuable habitat for the DPS. Therefore, the Prince of Wales Island Complex analysis unit does not represent a significant portion of the Southeast Alaska Alexander Archipelago wolf DPS range, and the Southeast Alaska Alexander Archipelago wolf DPS is not in danger of extinction now or likely to become so in the foreseeable future in any significant portion of its range.

After assessing the best available information, we concluded that the Southeast Alaska Alexander Archipelago wolf DPS is not in danger of extinction or likely to become in danger of extinction throughout all of its range or in any significant portion of its range. Therefore, we find that listing the Southeast Alaska Alexander Archipelago wolf DPS as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Alexander Archipelago wolf species assessment form and other supporting documents at https://www.regulations.gov under Docket No. FWS-R7-ES-2023-0109.

In accordance with our July 1, 1994, peer review policy (59 FR 34270; July 1, 1994) and the Service's August 22, 2016, Director's Memo on the Peer Review Process we solicited independent scientific reviews of the information contained in the Alexander Archipelago wolf SSA report. The Service sent the SSA report to 10 independent peer reviewers and received 4 responses. Results of this structured peer review process can be found at https://www.regulations.gov under Docket No. FWS-R7-ES-2023-0109 and https://www.fws.gov/library/categories/peer-review-plans. We incorporated the results of these reviews, as appropriate, into the SSA report, which is the foundation for this finding.

On June 25, 2007, the U.S. Fish and Wildlife Service (Service) received a petition dated June 18, 2007, from Forest Guardians (now WildEarth Guardians) requesting that the Service list 475 species, including the Chihuahua catfish, as threatened or endangered species and designate critical habitat under the Act. All 475 species occur within the Southwest Region and were ranked as G1 or G1G2 species by NatureServe at the time. In a July 11, 2007, letter to the petitioner, the Service acknowledged receipt of the petition and stated that the petition was under review by staff in the Southwest Regional Office. On December 16, 2009, the Service published a partial 90‐day finding on the petition, including the Chihuahua catfish and 191 other species, stating that the petition presented substantial scientific information indicating that listing may be warranted for 67 of the 192 species (74 FR 66866).

In assessing the best available scientific information for the status of a species, the Service generally relies on information published in peer-reviewed journals and other reports. Particularly related to taxonomic determinations, we defer to the scientific literature and to professional authorities for taxonomical assignments. However, when that information is in question, the Service conducts its own analysis, and we exercise our best scientific judgment.

For a taxon to be listed under the Act, it must be a listable entity; that is, it must be either formally described and accepted as a species or subspecies or there must be credible scientific evidence that the entity should qualify as a valid species or subspecies. The Chihuahua catfish has never been formally described in peer-reviewed literature as a valid taxonomic entity. A draft species description from 1998 proposed to describe the species as distinct but was never finalized. Recent morphological and genetic analyses found no evidence that this putative species exists in New Mexico and Texas.

To date, no peer-reviewed publications have supported a distinct species status of the Chihuahua catfish or provided evidence of its existence. We have reviewed the best available information regarding the taxonomic status of the putative Chihuahua catfish and conclude that there is insufficient credible scientific evidence that the entity qualifies as a valid species or subspecies. Therefore, it is not warranted for listing because we find that there is not credible scientific evidence that the Chihuahuan catfish is a listable entity under Act. A detailed discussion of the basis for this finding can be found in the Chihuahua catfish species assessment form and other supporting documents at https://www.regulations.gov under Docket No. FWS-R2-ES-2023-0110.

In accordance with our July 1, 1994, peer review policy (59 FR 34270; July 1, 1994) and the Service's August 22, 2016, Director's Memo on the Peer Review Process, we solicited independent scientific reviews of the information contained in our report titled “Review of the Chihuahua catfish ( Ictalurus sp. 1)”. The Service sent the report to seven independent peer reviewers and received four responses. We incorporated the results of these reviews, as appropriate, into the report, which is the foundation for this finding. Results of this structured peer review process can be found at https://www.regulations.gov under Docket No. FWS-R2-ES-2023-0110.

On April 20, 2010, we received a petition from the Center for Biological Diversity, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands to list 404 aquatic, riparian, and wetland species, including Stygobromus cooperi, S. parvus, and S. morrisoni (referred to by the common names “Cooper's cave amphipod,” “minute cave amphipod,” and “Morrison's cave amphipod,” respectively, in the petition), as endangered or threatened species under the Act. On September 27, 2011, we published a 90-day finding in which we announced that the petition contained substantial information indicating that listing may be warranted for the species (76 FR 59836). This document constitutes our 12-month finding on the April 20, 2010, petition to list Cooper's, minute, and Morrison's cave amphipods under the Act.

Cooper's, minute, and Morrison's cave amphipods are specialized for subterranean karst habitat characterized by relatively stable physiochemical conditions compared to surface environments and have limited or patchily distributed food resources. Karst landscapes are geologic features or landforms characterized by distinctive permeable underground drainage systems, caves, and sinkholes that have been formed through the dissolving of soluble rock, particularly limestone (Simms 2005, p. 678). Due to the absence of light and primary producers in subterranean environments, these species are likely detritivores or omnivores that feed on organic matter ( i.e., dead plant and animal material) originating from the surface. Morrison's cave amphipod is restricted to Virginia and West Virginia, and Cooper's cave and minute cave amphipods are restricted to West Virginia, with limited distributions.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Cooper's, minute, and Morrison's cave amphipods, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these threats. The primary threats affecting Cooper's, minute, and Morrison's cave amphipods are: (1) groundwater contamination by sediments and toxic compounds, (2) disruption of food supply due to deforestation/surface alteration, and (3) direct modification of habitats due to cave visitation and urban development of karst areas. Protection, management, and conservation measures that may improve the species' viability are summarized below.

After evaluating the best available scientific and commercial information on potential stressors acting individually or in combination, we found no indication that the combined effects are currently causing a population-level decline or degrading the habitat of the Cooper's, minute, or Morrison's cave amphipod, or that the combined effects are likely to do so within a foreseeable future of 20 years, based on the projected species' response to future stressors.

Despite impacts from the primary threats, the best data and information available indicate Cooper's, minute, and Morrison's cave amphipod species have maintained resilient populations throughout their respective ranges. Although we predict some continued impacts from these threats in the future, we anticipate each species will continue, in the foreseeable future (that is roughly 20 years), to maintain resilient populations throughout their ranges that are distributed throughout each of their representative units.

After evaluating threats to the species under the section 4(a)(1) factors listed above and assessing the cumulative effect of the threats of these factors, we evaluated Cooper's, minute, and Morrison's cave amphipod viability to determine if these species meet the definition of an endangered or threatened species. The Cooper's, minute, and Morrison's cave amphipod redundancy and representation are limited due to their narrow ranges; however, this situation is likely similar to historical conditions. We find that the Cooper's, minute, and Morrison's cave amphipods have sufficient resiliency, redundancy, and representation in light of the best available potential stressor data and information, both currently and into the foreseeable future, such that they do not meet the definition of an endangered or threatened species throughout their range.

We evaluated the range of the Cooper's cave amphipod to determine if the species is in danger of extinction now or likely to become so in the foreseeable future in any portion of its range. The Cooper's cave amphipod is a narrow endemic that functions as a single, contiguous population and occurs within a very small area of 27 square kilometers (km 2 ) (10.5 square miles [mi 2 ]). Thus, there is no biologically meaningful way to break this limited range into portions, and the threats that the species faces affect the species comparably throughout its entire range. As a result, there are no portions of the species' range where the species has a different biological status from its rangewide biological status. Therefore, we conclude that there are no portions of the species' range that warrant further consideration, and the species is not in danger of extinction or likely to become so in the foreseeable future in any significant portion of its range.

We evaluated the range of the minute and Morrison's cave amphipods to determine if the species are in danger of extinction now or likely to become so in the foreseeable future in any portion of their ranges (1,467 km 2 or 566 mi 2 and 2,266 km 2 or 876 mi 2 , respectively). The range of a species can theoretically be divided into portions in an infinite number of ways. We focused our analysis on portions of the species' range that may meet the definition of an endangered species or a threatened species. For minute and Morrison's cave amphipods, we considered whether the threats or their effects on the species are greater in any biologically meaningful portion of the species' range than in other portions 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) groundwater contamination, (2) disruption of food supply due to deforestation or surface alteration, and (3) direct modification of habitat due to cave visitation and urban development.

After evaluating the best available scientific and commercial information on potential stressors acting individually or in combination, we found no indication that the combined effects are currently causing a population-level decline or degrading the habitat of the minute or the Morrison's cave amphipods. These factors are not occurring at a substantial level in any portion for either the minute or Morrison's cave amphipods to contribute to the risk of extinction. We found no biologically meaningful portion of the minute or Morrison's cave amphipod ranges where threats are impacting individuals differently from how they are affecting the species elsewhere in its range, or where the biological 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. Refer to the species assessment form in the docket for this action for additional details.

After assessing the best available information, we concluded that Cooper's, minute, and Morrison's cave amphipods are not in danger of extinction or likely to become in danger of extinction throughout all of their ranges or in any significant portion of their ranges. Therefore, we find that listing the Cooper's, minute, or Morrison's cave amphipods as endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Cooper's, minute, and Morrison's cave amphipods species assessment form and other supporting documents on https://www.regulations.gov under Docket Nos. FWS-R5-ES-2023-0120 (Cooper's cave amphipod), FWS-R5-ES-2023-0121 (minute cave amphipod), and FWS-R5-ES-2023-0122 (Morrison's cave amphipod.

In accordance with our July 1, 1994, peer review policy (59 FR 34270; July 1, 1994) and the Service's August 22, 2016, Director's Memo on the Peer Review Process we solicited independent scientific reviews of the information contained in the Cooper's, minute, and Morrison's cave amphipod SSA report. The Service sent the SSA report to four independent peer reviewers and received four responses. Results of this structured peer review process can be found at https://www.regulations.gov under Docket Nos. FWS-R5-ES-2023-0120 (Cooper's cave amphipod), FWS-R5-ES-2023-0121 (minute cave amphipod), and FWS-R5-ES-2023-0122 (Morrison's cave amphipod). We incorporated the results of these reviews, as appropriate, into the SSA report, which is the foundation for this finding.

On April 20, 2010, we received a petition from the Center for Biological Diversity, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands to list 404 aquatic, riparian, and wetland species, including Eurycea wallacei (formerly known as, and identified by petitioners as, Haideotriton wallacei ), as an endangered or threatened species under the Act. On September 27, 2011, we published a 90-day finding (76 FR 59836) that the petition contained substantial information indicating that listing may be warranted for the species. This document constitutes our 12-month finding on the April 20, 2010, petition to list the Georgia blind salamander under the Act.

The Georgia blind salamander is a relatively small, pinkish-white, blind salamander with visible external gills. Eyes are entirely lacking, except for dark eyespots. The bodies of juveniles exhibit many small pigment spots uniformly distributed along the dorsal and lateral surfaces but are otherwise translucent. Adults are similar in appearance but lack body pigmentation, leaving them almost pure white apart from their gills. Lungs are also absent. Common prey items of the Georgia blind salamander mainly include crustaceans (ostracods, amphipods, copepods, and isopods), though insects and arachnids have also been found in salamander digestive tracts. Habitat of the Georgia blind salamander consists primarily of caves within the Upper Floridan Aquifer System, an extensively karstified aquifer system. Currently, locations where Georgia blind salamander have been found include Jackson County, Florida, as well as Dougherty and Decatur Counties, Georgia, in the Marianna Lowlands-Dougherty Plain physiographic region. The best available science indicates there is a high likelihood of Georgia blind salamander co-occurring with the Dougherty Plain cave crayfish ( Cambarus cryptodytes ), resulting in up to 58 extant sites. It is important to note that the identified sites are only those that are accessible to humans and do not necessarily represent the entire distribution of the species. Also, many sites of co-occurrence are isolated wells, indicating that both species are likely more widely distributed throughout the aquifer and associated springsheds than is evidenced by direct sightings alone. It is likely the species is present in the Dougherty Plain portion of the Upper FAS.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Georgia blind salamander, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these threats. Existing threats related to water quality and water quantity are present, though there are extant sites. In addition, water quantity currently does not appear to have a large impact on this aquifer, as drawdowns even in drought conditions were not impacting water levels in the aquifer. Since aquifers have relatively stable conditions over space and time, particularly compared to other terrestrial or even aquatic habitats, the species' broad occurrence across the 4.4-million-acre aquifer likely ensures it has adequate representation and redundancy currently.

After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we assessed the current status of the Georgia blind salamander to determine if it meets the definition of an endangered species or threatened species. The Georgia blind salamander currently has moderate to high resilience (78 percent of sites); water quality and quantity are the primary factors influencing the species rangewide, although the underlying aquifer has exhibited relatively stable conditions over time, and the species is presumed to occur across the aquifer. There are extant sites where existing threats related to water quality and water quantity still occur, and drawdowns in drought conditions were not impacting water levels in the aquifer. Thus, the threats appear to have low imminence and magnitude such that they are not significantly affecting the species' current viability. Accordingly, we determined that the Georgia blind salamander is not in danger of extinction throughout its range.

We then considered whether the species is likely to become in danger of extinction within the foreseeable future throughout its range. The analysis of future condition to 2070, considered in the SSA report, encompasses the best available information for future projections of land-use change under two different scenarios (worst case—A1B and best case—B2), as well as pollutant discharge permits and effects of climate change (for example, sea level rise and drought). The timeframe considered enabled us to analyze the threats/stressors acting on the species and draw reliable predictions about the species' response to these factors. Land use changes may impact water quality, and thus could influence species viability.

Given the future scenarios, the resiliency of the Georgia blind salamander population is predicted to decline or remain approximately the same in the future. However, given the vast size (4,400,162 acres of surface area) and stability of habitat, as well as the species' broad occurrence across the aquifer, and projected limited future threats, we determined that the scale of impacts projected in the future will not impact the species such that the species is likely to become in danger of extinction within the foreseeable future. Thus, after assessing the best available information, we determined that the Georgia blind salamander is not in danger of extinction now or likely to become so in the foreseeable future throughout all of its range.

We next considered whether the species may be in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range—that is, whether there is any portion of the species' range for which it is true that both (1) the portion is significant and (2) the species is in danger of extinction now or likely to become so in the foreseeable future in that portion. Because the range of a species can theoretically be divided into portions in an infinite number of ways, we focused our analysis on portions of the species' range that contribute to the conservation of the species in a biologically meaningful way. For the Georgia blind salamander, we considered whether the threats or their effects on the species are greater in any portion of the species' range than in other portions such that the species is in danger of extinction now or likely to become so in the foreseeable future in that portion.

Because this species occupies a habitat that is not easily accessible or sampled, with few existing records, it is assumed to be well distributed evenly across its interconnected 4.4 million-acre range. While it is considered one population, we identified sinkhole hotspots around Albany, Georgia, and Marianna, Florida, to be most vulnerable to the threats due to their close proximity to developed areas and potential lingering effects from Superfund sites. These portions of the range are also vulnerable to potential catastrophic chemical spills compared to the overall range. The fact that spills have occurred and the salamander remains in high to moderate condition in these areas indicates that the threats to water quality and quantity are not impacting the species such that it has a different status in these portions compared to the rest of the range. For these reasons, the sinkhole hotspot portions around Albany, GA, and Marianna, FL, were not determined to have a different status now or in the foreseeable future. Further, these portions also comprise a small portion of the total range, and therefore we conclude that these areas are not significant.

After assessing the best available information, we concluded that Georgia blind salamander is not in danger of extinction or likely to become in danger of extinction throughout all of its range or in any significant portion of its range. Therefore, we find that listing the Georgia blind salamander as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Georgia blind salamander species assessment form and other supporting documents at https://www.regulations.gov under Docket No. FWS-R4-ES-2023-0117.

In accordance with our July 1, 1994, peer review policy (59 FR 34270; July 1, 1994) and the Service's August 22, 2016, Director's Memo on the Peer Review Process, we solicited independent scientific reviews of the information contained in the Georgia blind salamander SSA report. The Service sent the SSA report to eight independent peer reviewers and received three responses. Results of this structured peer review process can be found at https://www.regulations.gov under Docket No. FWS-R4-ES-2023-0117. We incorporated the results of these reviews, as appropriate, into the SSA report, which is the foundation for this finding.

On July 17, 2013, we received a petition from WildEarth Guardians to list the narrow-foot hygrotus diving beetle, henceforth “diving beetle,” as an endangered or threatened species under the Act. On January 12, 2016, we published a 90-day finding (81 FR 1368) that the petition contained substantial information indicating that listing may be warranted for the species. On April 21, 2020, WildEarth Guardians filed suit (Case No. 1:20-cv-1035) to compel us to complete a 12-month finding. We subsequently agreed to submit a 12-month finding for the diving beetle to the Federal Register by August 15, 2023. This document constitutes our 12-month finding on the July 17, 2013, petition to list the diving beetle under the Act.

Narrow-foot hygrotus diving beetles are small aquatic beetles found in central Wyoming within a specific geology of Cody Shale substrates or soils derived from Cody Shale in Fremont, Johnson, Natrona, and Washakie Counties. This beetle has likely never had a wider distribution than the narrow range it currently occupies.

Diving beetles develop through egg, larval, pupal, and adult stages and rely on small, transitory, saline pools that form during the drying down of ephemeral streams in summer, with all life stages either occurring in or adjacent to these pools. Diving beetles require refugia and prey in pools and hydrologically intact areas surrounding pools, which support higher water quality and seasonally appropriate timing and quantities of water in pools. Diving beetle sites appear to function as a metapopulation, and as such, connectivity among pools is essential for diving beetles. Pools need to be near enough to each other so that, when local conditions in one pool become unsuitable, either adults can fly overland to another pool or individuals at any life stage can flow downstream to another pool with suitable habitat. The frequency across years with which pools are occupied by diving beetles is also important for diving beetles' resiliency. More frequently occupied pools reliably provide for the needs of diving beetles, and while infrequently occupied pools do not support diving beetles in most years, they do support diving beetles in years with extreme weather conditions that make other sites unsuitable.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the diving beetle, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these threats. After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we assessed the current status of the diving beetle to determine if it meets the definition of an endangered species or threatened species. The primary threats affecting the diving beetle's biological status include climate change, inadequate water availability, flooding, anthropogenic disturbance, and insecticide spraying.

Our assessment of current viability included all primary threats to the diving beetle. Despite past and ongoing stressors, the diving beetle has multiple populations in high and moderate condition. To assess future viability of this species, we considered the foreseeable future out to 2050 and projected the influence under three future scenarios of stressors that included climate change, inadequate water availability, flooding, anthropogenic disturbance, and insecticide spraying. Within the SSA, we evaluated the viability of diving beetles, including a review of ongoing and future threats. The best available information indicates that this species' life-history traits are conducive to surviving projected climate changes and other increases in evaluated stressors now and into the foreseeable future.

Diving beetles also have a metapopulation structure with connectivity between sites that supports resiliency among all sites throughout the entire range, and the distribution of the species across three different river basins within central Wyoming helps support redundancy. Therefore, we expect all diving beetle sites to be maintained into the foreseeable future.

We then evaluated the range of the diving beetle to determine if the species is in danger of extinction now or likely to become so in the foreseeable future in any portion of its range. The range of a species can theoretically be divided into portions in an infinite number of ways. We focused our analysis on portions of the species' range that may meet the definition of an endangered species or a threatened species. For the diving beetle, we considered whether the threats or their effects on the species are greater in any biologically meaningful portion of the species' range than in other portions such that the species is in danger of extinction now or likely to become so in the foreseeable future in that portion. We found no portion of the diving beetle's range where threats are impacting individuals differently from how they are affecting the species elsewhere in its range, or where the biological 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; refer to the species assessment form in the docket for this action for additional details.

After assessing the best available information, we concluded that the diving beetle is not in danger of extinction or likely to become in danger of extinction throughout all of its range or in any significant portion of its range. Therefore, we find that listing the diving beetle as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the diving beetle species assessment form and other supporting documents at https://www.regulations.gov under Docket No. FWS-R6-ES-2023-0111.

In accordance with our July 1, 1994, peer review policy (59 FR 34270; July 1, 1994) and the Service's August 22, 2016, Director's Memo on the Peer Review Process, we solicited independent scientific reviews of the information contained in the diving beetle SSA report. The Service solicited review of the SSA report from six potential peer reviewers and received one review. Results of this structured peer review process can be found at https://www.regulations.gov under Docket No. FWS-R6-ES-2023-0111. We incorporated the results of the review, as appropriate, into the SSA report, which is the foundation for this finding.

On April 20, 2010, we received a petition from the Center for Biological Diversity, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands Conservancy to list 404 aquatic, riparian, and wetland species, including the pristine crayfish, as an endangered or threatened species under the Act. On September 27, 2011, we published a 90-day finding in the Federal Register (76 FR 59836) concluding that the petition presented substantial scientific or commercial information indicating that listing may be warranted. This document constitutes our 12-month finding on the April 20, 2010, petition to list pristine crayfish under the Act.

The pristine crayfish is a small, freshwater crayfish endemic to the Cumberland Plateau in Tennessee. The species occurs in small- to medium-sized streams and rivers in the Caney Fork and Sequatchie River systems in central Tennessee. Pristine crayfish are known to occur in 27 streams in 8 subwatersheds (HUC12) in the region. Two distinct forms of the pristine crayfish are recognized based on body characteristics and genetics: the Caney Fork form and the Sequatchie form. The Caney Fork form of pristine crayfish occurs in five northern subwatersheds (17 streams), and the Sequatchie form occurs in three southern subwatersheds (10 streams). The pristine crayfish requires good water quality in first- to fourth-order perennial streams with cool water, shallow pools with slow to moderate flow, slab rock substrate with cobble, and low levels of sedimentation.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the pristine crayfish, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these threats. After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we assessed the current status of the pristine crayfish to determine if it meets the definition of an endangered species or threatened species. The threats affecting the pristine crayfish's biological status include habitat destruction or modification, future effects of climate change, disease, and the effect of small, isolated populations. Of these threats, habitat destruction or modification and the future effects of climate change were identified as key drivers of the species' viability. Habitat destruction or modification is currently the primary threat to pristine crayfish viability. Impacts to the pristine crayfish's habitat rangewide are caused by sedimentation, decreased water quality, and the effects of impoundments. These impacts occur at the individual and population levels across the species' distribution, but the best available information indicates that these localized impacts have not affected pristine crayfish at the species level. Climate change has the potential to impact the species through increased magnitude and frequency of drought and increased temperature, and this threat is ongoing and projected to increase in the future. Although drought and increased temperatures may result in a decrease or lack of recruitment in some portions of its range during some years, there have been no documented species-level declines as a result of consecutive years of drought. The threats of disease and small population size may exacerbate the effects of the primary threats but are not expected to affect population resiliency, representation, and redundancy alone.

The best available information indicates that the range of the pristine crayfish has not contracted since described in 1965 and, in fact, its range was recently expanded into an additional river system. The species is naturally patchily distributed within its range and is known to occur in 27 streams across 8 HUC12 analysis units (AUs). Seven of the eight AUs exhibit moderate current resiliency. Although we identified habitat destruction or modification and climate change as the key drivers of species' viability, the species' current condition does not indicate species-level impacts from these or other cumulative factors that have led to reductions in AU resiliency. The species' representation and redundancy are moderate, and the species occurs in multiple analysis units with sufficient resiliency across its historical and current range. Overall, no current threat is acting at an extent or severity such that the pristine crayfish is at risk of extinction throughout all of its range. Thus, after assessing the best available information, we conclude that the pristine crayfish is not in danger of extinction throughout all of its range.

Therefore, we proceed with determining whether the pristine crayfish is likely to become an endangered species within the foreseeable future throughout all of its range. To evaluate the future viability of the pristine crayfish, we considered the relevant threats currently acting on the species, those threats expected to act on the species in the foreseeable future, and the species' response to those threats. The primary threats to the pristine crayfish in the future are habitat destruction or modification and climate change. The three plausible future scenarios we examined included projections of urbanization, land use change (evergreen forest cover), impoundments, the effects of climate change, and the cumulative effect of these threats. Our analysis of the species' condition under future scenarios at two time steps (2036 and 2051) encompasses the best available information for future projections of modeled parameters under a range of plausible threat levels. We selected these time steps based on the pristine crayfish's lifespan of approximately 4 years and the reliability of the data and models used in the future threat projections and analyses. Therefore, we determined 30 years to be the foreseeable future for which we can reasonably predict the threats to the pristine crayfish and the species' response to those threats.

In this timeframe, there are minor projected increases in some threats that may affect the availability of suitable habitat across the species' range. Urbanization is projected to increase an average of 6 to 11 percent over current levels and evergreen forest cover (representing land use change) is projected to decrease by 1 percent in the same timeframes. The pristine crayfish is distributed across eight AUs (HUC12 subwatersheds) and is expected to remain extant in all future scenarios across the AUs. Our future condition analysis projected declines in resiliency in six or seven of the AUs in all scenarios except the increased impact scenario in 2051, when all eight AUs are projected to decline in resiliency. Based on our analysis, the projected effects of climate change and impoundments may have a greater effect on species' resiliency compared to current impacts, but the magnitude and imminence of the threats and the species' responses are more uncertain.

We expect that the species' representation and redundancy will decline slightly but will largely be maintained in moderate condition in the future with all AUs remaining on the landscape in all scenarios. We projected future redundancy as moderate with no AUs projected to be extirpated, and the distribution of the species across the range is projected to remain at the current level. Likewise, representation is expected to remain moderate as both forms of the pristine crayfish are present on the landscape, although some parameters used to assess representation are projected to decline as resiliency declines. Impacts from current and ongoing threats will reduce population resiliency and affect the species' representation and redundancy in the foreseeable future but are not projected to lead to the species' decline such that the pristine crayfish is likely to become in danger of extinction in the modeled scenarios. The best available information does not indicate that the pristine crayfish's viability will decline so much that the species is likely to become an endangered species within the foreseeable future throughout its range.

We then evaluated the range of the pristine crayfish to determine if the species is in danger of extinction now or likely to become so in the foreseeable future in any significant portion of its range. Although threats are similar throughout the range of the species, the species' response is more pronounced in the Piney Creek AU. Due to lower current resiliency, threats are having a greater impact in the Piney Creek AU than elsewhere in the range. The Piney Creek AU exhibits low current resiliency driven primarily by a low extent of occupancy (few sites known within the stream) and lack of information regarding reproduction in the species. Given the species' condition within the Piney Creek AU, we have identified the unit as an area that may be in danger of extinction due to the low extent of occupancy and low reproduction/recruitment.

We then proceeded to the significance question, asking whether this portion of the range is significant. Although the Piney Creek AU contributes to the overall species-level representation and redundancy, it does not contain any high-quality or high-value habitat or any habitat or resources unique to that area and necessary to the pristine crayfish's life history. In addition, only 1 of the 27 known streams with species occurrence is located in the Piney Creek AU. So this area does not contribute substantively to the species' viability. This portion does not make up a large geographic area of the range or contain a high proportion of the species' habitat or populations. Accordingly, we do not find this portion to be a significant portion of its range. Therefore, we find the pristine crayfish is not currently in danger of extinction in a significant portion of its range.

We next considered whether the pristine crayfish may be likely to become an endangered species within the foreseeable future in a significant portion of its range. As discussed above, we determined 30 years to be the foreseeable future for which we can reasonably predict the threats to the pristine crayfish and the species' response to those threats.

Habitat destruction or modification and climate change are the primary factors currently acting on or expected to act on the species in the future at a rangewide scale. The species currently exhibits moderate resiliency in seven of eight AUs and moderate species' level representation and redundancy. Although threats are projected to impact the species similarly across the range, the species' response is more pronounced in some AUs due to lower resiliency where threats are having a greater impact than elsewhere in the range. One AU (Caney Fork River-Clifty Creek) is projected to remain in moderate resiliency in all but the increased impact scenario in 2051. The remaining seven AUs are projected to exhibit low or very low resiliency under scenarios 2 and 3 in 2036 and 2051. We considered whether the seven AUs that are projected to exhibit low or very low resiliency in future scenarios may be a portion of the range that could become in danger of extinction within the foreseeable future. Although the future condition analyses projects overall declines in AU resiliency, stream catchments with species' occurrences are projected to remain in good condition within each AU. Within the high-condition catchments, we expect that habitat conditions will support sufficient pristine crayfish abundance and reproduction. Although projections indicate low or very low future resiliency in seven AUs, the remaining stream catchments in high condition indicate that the pristine crayfish in these AUs will remain on the landscape with sufficient viability. In addition, although some declines in representation and redundancy are projected in the future, we expect that the pristine crayfish will have sufficient adaptive capacity and ability to withstand catastrophic change in the foreseeable future. Accordingly, we determined that the pristine crayfish is not likely to become an endangered species within a significant portion of its range.

We found no portion of the pristine crayfish's range where the biological condition of the species differs from its condition elsewhere in its range such that the status of the species in that portion warrants listing under the Act. 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.

After assessing the best available information, we concluded that the pristine crayfish is not in danger of extinction or likely to become in danger of extinction throughout all of its range or in any significant portion of its range. Therefore, we find that listing the pristine crayfish as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the pristine crayfish species assessment form and other supporting documents at https://www.regulations.gov under Docket No. FWS-R4-ES-2023-0115.

In accordance with our July 1, 1994, peer review policy (59 FR 34270; July 1, 1994) and the Service's August 22, 2016, Director's Memo on the Peer Review Process, we solicited independent scientific reviews of the information contained in the pristine crayfish SSA report. The Service sent the SSA report to four independent peer reviewers and received one response. Results of this structured peer review process can be found at https://www.regulations.gov under Docket No. FWS-R4-ES-2023-0115. We incorporated the results of these reviews, as appropriate, into the SSA report, which is the foundation for this finding.

On April 20, 2010, we received a petition from the Center for Biological Diversity, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands to list 404 aquatic, riparian, and wetland species, including Tennessee heelsplitter ( Lasmigona holstonia ), as endangered or threatened species under the Act. On September 27, 2011, we published a 90-day finding (76 FR 59836) that the petition contained substantial information indicating that listing may be warranted for the species. This document constitutes our 12-month finding on the April 20, 2010, petition to list the Tennessee heelsplitter under the Act.

The Tennessee heelsplitter is a small freshwater mussel usually less than 50 millimeters (2 inches) long. The species is a freshwater mussel native to the New, Cumberland, and Tennessee River basins in Virginia, Tennessee, Georgia, Alabama, and historically North Carolina. The Tennessee heelsplitter predominantly inhabits spring-fed creeks and small headwater streams with stable substrates and good water quality. The species needs water with low to moderate flow, appropriate temperatures for life-history functions, and presence of fish hosts for successful reproduction.

Resources influencing the successful completion of each life stage for Tennessee heelsplitter individuals include abundant host fish, stable substrate, proximity to breeding individuals, small or headwater streams, water with neutral pH and little to no contaminants, spring-fed streams with low to moderate water flow, and a water temperature range that allows for life-history functions (Service 2016a, p. 12). Successful completion of each life stage affects the ability of populations to withstand stochastic events (resiliency) and the species' ability to withstand catastrophic events (redundancy) as well as adapt to changing environmental conditions by way of genetic exchange or respond to environmental diversity between occupied streams (representation).

The population- and species-level resource needs of the Tennessee heelsplitter include sufficient juvenile and breeding adult abundances with broad distributions, suitable and abundant host fish, and habitat connectivity. Resiliency of Tennessee heelsplitter populations (which we defined as occupied stream reaches within analysis units (AUs)), as well as representation and redundancy of the species, are influenced by access to necessary resources.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Tennessee heelsplitter, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these threats. The threats affecting the Tennessee heelsplitter's biological status include siltation and sedimentation, pollution and toxic spills, drought and floods, aquatic nuisance species, and impoundments. These threats appear to have mostly localized extent and moderate impact. The current risk of extinction is low. Further, the Tennessee heelsplitter's current distribution has not substantially changed from its known historical distribution. Sixty percent of AUs are categorized as “high” or “most” habitat suitability and these AUs are distributed throughout each river basin. Redundancy is high, as our analysis indicates that suitable habitat exists throughout the range of the Tennessee heelsplitter. Representation is maintained across the range of historical and current occurrence in the Cumberland, New, and Tennessee River basins. Additionally, available information indicates the species' adaptive capacity will ensure survival despite predicted climate impacts, particularly because of the strong association with spring-fed streams that can act as cold-water and drought refugia in the face of climate change. Therefore, after assessing the best available information, we conclude that the Tennessee heelsplitter is not in danger of extinction throughout all of its range.

Based on projected habitat suitability for the two future scenarios, future resiliency for the Tennessee heelsplitter is expected to decrease slightly, but overall there will be 77 percent to 91 percent of suitable habitat available to the species, depending on the modeled scenario. Multiple AUs maintain resiliency, or levels of suitable habitat, in future-condition projections across the range and are likely to help buffer changes in environmental conditions through 2040 and 2060. Further, the concentration of AUs with high resiliency in the southwestern Virginia and northeastern Tennessee strongholds are projected to remain intact. Connectivity of these high resiliency AUs within the upper Tennessee representation unit (RU) bolster the likelihood of persistence into the future.

In the future, stochastic events associated with threats to the species will likely affect population resilience in parts of the range, and these are more likely to occur or be observed in developed areas. However, our future condition projections indicate Tennessee heelsplitter resiliency is sufficient to withstand disturbance and environmental stochasticity, due to prevalent suitable habitat and life-history traits that reduce risk currently and into the future. The Tennessee heelsplitter has several life-history traits that allow it to adapt to changing conditions, such as the capability to transform on a wide variety of common host fish species, occurring in varying stream sizes, as well as tolerance of silty and sandy substrates and depositional areas with low flows. Spring-fed streams where the Tennessee heelsplitter is most frequently located are ubiquitous throughout the species' range and have year-round groundwater contributions with continuous flow and comparatively stable temperature regimes. These characteristics are expected to bolster Tennessee heelsplitter resilience in most AUs throughout the range into the future and withstand projected climate effects. After assessing the best available information, we conclude that the Tennessee heelsplitter is not likely to become an endangered species within the foreseeable future throughout all of its range.

We also evaluated the range of the Tennessee heelsplitter to determine if the species is in danger of extinction now or likely to become so in the foreseeable future in any significant portion of its range. We identified the three RUs—Cumberland, New, and Tennessee drainages—for evaluation. As described above, the threats are present across all AUs within the range, but some are localized in effect, though most threats have a low to moderate level of impact on the species. The New and Cumberland RUs currently have large percentages (100 percent and 75 percent, respectively) of suitable habitat, thus these areas have high estimated current resiliency. Our future conditions analysis indicates that none of the AUs in the New RU, and only one of the AUs in the Cumberland RU, is projected to no longer have suitable habitat to support the species. As such, the amount and distribution of suitable habitat in high resiliency AUs are projected to be maintained 40 years in the future in both the New and Cumberland RUs, and we determined that the Tennessee heelsplitter is not in danger of extinction now or likely to become so in the foreseeable future in the New or Cumberland RU.

The Tennessee RU comprises 132 AUs with varying levels of suitable habitat; 57 percent of the AUs have a current condition level of high or most resilience, and 43 percent are in a condition of moderate resilience. Our future conditions analysis indicates that 4 to 14 percent of the AUs in the Tennessee RU could lose habitat suitability within the next 40 years. Despite this potential loss of habitat suitability, between 86 and 96 percent of the AUs are projected to maintain suitable habitat, with widespread distribution throughout the Tennessee RU portion of the range. The Tennessee heelsplitter is expected to have sufficient resiliency in this RU for many decades. Thus, we found that the Tennessee heelsplitter is not in danger of extinction now or likely to become so in the foreseeable future in the Tennessee RU.

After assessing the best available information, we concluded that Tennessee heelsplitter is not in danger of extinction or likely to become in danger of extinction throughout all of its range or in any significant portion of its range. Therefore, we find that listing the Tennessee heelsplitter as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Tennessee heelsplitter species assessment form and other supporting documents at https://www.regulations.gov under Docket No. FWS-R4-ES-2023-0116.

In accordance with our July 1, 1994, peer review policy (59 FR 34270; July 1, 1994) and the Service's August 22, 2016, Director's Memo on the Peer Review Process we solicited independent scientific reviews of the information contained in the Tennessee heelsplitter SSA report. The Service sent the SSA report to five independent peer reviewers and received two responses. Results of this structured peer review process can be found at https://www.regulations.gov under Docket No. FWS-R4-ES-2023-0116. We incorporated the results of these reviews, as appropriate, into the SSA report, which is the foundation for this finding.

We request that you submit any new information concerning the taxonomy, biology, ecology, or status of, or stressors to, the Alexander Archipelago wolf, Chihuahua catfish, Cooper's cave amphipod, Georgia blind salamander, minute cave amphipod, Morrison's cave amphipod, narrow-foot hygrotus diving beetle, pristine crayfish, or Tennessee heelsplitter to the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT , whenever it becomes available. New information will help us monitor these species and make appropriate decisions about their conservation and status. We encourage local agencies and stakeholders to continue cooperative monitoring and conservation efforts.

A list of the references cited in each petition finding is available in the relevant species assessment form, which is available on the internet at https://www.regulations.gov in the appropriate docket (see ADDRESSES , above) and upon request from the appropriate person (see FOR FURTHER INFORMATION CONTACT , above).

The primary authors of this document are the staff members of the Species Assessment Team, Ecological Services Program.

The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

NMFS manages the groundfish fisheries in the exclusive economic zone (EEZ) seaward of Washington, Oregon, and California under the Pacific Coast Groundfish fishery management plan (PCGFMP). The Council prepared and NMFS implemented the PCGFMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. and by regulations at 50 CFR parts 600 and 660. The Magnuson-Stevens Act requires that each regional fishery management council submit any fishery management plan (FMP) or plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP or amendment, immediately publish a notification that the FMP or amendment is available for public review and comment. This notice of availability announces that the proposed Amendment 31 to the FMP is available for public review and comment. NMFS will consider the public comments received during the comment period described above in determining whether to approve, partially approve, or disapprove Amendment 31 to the FMP.

Amendment 31 would define stocks that are in need of conservation and management. Amendment 31 would define stocks for 14 species within the fishery management unit (FMU; the jurisdiction of the FMP from 3-200 nautical miles offshore between the U.S. border with Canada and the U.S. border with Mexico, which may also be referred to as “coastwide”).

At its June 20-27, 2023 meeting in Vancouver, Washington, the Council recommended stock definitions for 14 species of Pacific Coast groundfish after NMFS was unable to make stock status determinations in 2021. NMFS was unable to make stock status determinations because the “stocks” for which the Council was expecting status determinations did not exist in the FMP. Currently, the FMP has a list of 80+ species to which it pertains, and does not describe whether each species is a single stock within the fishery management unit or if it is multiple ( e.g., regional) stocks.

NMFS requested that the Council undertake Amendment 31 to define stocks at its March 8-14, 2022 meeting in San Jose, California. NMFS advised the Council that it should define the stocks for which stock status determinations were changing in 2021 and 2023, and to add those definitions to the FMP. In particular, NMFS was seeking clarifications on whether species should have overfished (or not overfished) and subject to overfishing (or not subject to overfishing) status determinations on a scale that is less than coastwide.

The Council prioritized a sub-set of species, because there are 80+ species managed by the FMP, be considered for stock identification in Amendment 31. These species are black, canary, copper, quillback, squarespot, vermilion, and vermilion/sunset rockfishes; Dover, petrale, and rex soles; lingcod, Pacific spiny dogfish, sablefish, and shortspine thornyhead. These species were prioritized because they were subject to stock assessments in 2021 or are subject to stock assessments in 2023, and were therefore the most likely candidates to be the subject of NMFS' forthcoming status determinations, which are often based on new assessments.

Early in the development of Amendment 31, the Council was advised by the Scientific and Statistical Committee (SSC) that indications of population structure within a species should be an indicator of whether stock status should be determined at a finer scale than coastwide. The Council evaluated a literature review of the best scientific and biological information available for each species, which is appended to the main analytical document (Analysis) developed for Amendment 31, available on the Council website (see Electronic Access).

The Analysis considered alternative stock definitions for each species where applicable, as some species only had one stock definition alternative, as explained below. Generally, species with no known population structure, based on the literature review, or with known population structure based on genetic information, were considered under a single stock definition alternative. The rest of the species had known indicators of population structure but were lacking or had conflicting genetic indicators of latitudinal variation and were therefore considered under multiple stock definition alternatives. For species with multiple alternatives, the Analysis assumed each alternative stock definition was adopted, then applied the FMP's harvest specifications framework to each stock to assess some of the biological, socioeconomic, and fishery management trade-offs that might be expected from implementation of future management actions based on the alternative stock definitions. Impacts of these stock definitions are expected to flow from future, subsequent action(s) to set harvest specifications and management measures for the stock(s) but the Analysis provided information for the Council to consider in making its decision. The Council considered these tradeoffs when making its final stock definition recommendations at its June 20-27, 2023 meeting. The following narrative provides species-specific information, in alphabetical order by common name, and rationale for the stock definition for each species that would be implemented by Amendment 31.

Black rockfish range from Southern California to the Aleutian Islands in Alaska and occur most commonly north of San Francisco, California. Black rockfish are an important target species in Pacific Coast tribal fisheries off the coast of Washington State and in non-tribal commercial and recreational fisheries predominantly north of San Francisco, California. While overall population structure remains poorly understood, there are some indications that the species may have distinct geospatial population structure. Genetic work has indicated three, or perhaps more, populations within the species' range, and larval dispersal and adult movement are limited, to varying degrees, along the coast. All black rockfish assessments (1999 through 2023) have been assessed with multiple, area-specific, models within the FMU due to management considerations and differences in exploitation history. The Council has calculated harvest specifications and managed black rockfish as three state-specific populations since 2017 and defining three stocks of black rockfish is not expected to trigger future allocative actions, increase management burden during the next biennial cycle compared to 2023, or result in short-term or long-term biological impacts if status is determined at a coastwide scale. This geographic delineation clearly aligned well with past and recent fishery management and policy decisions for the species as well as best scientific information available. Therefore, the Council recommended and NMFS is proposing to approve three stocks of black rockfish in the FMP.

Canary rockfish are distributed along the northeastern Pacific coast, and the species is most abundant from British Columbia to central California. Canary rockfish are mostly harvested in sectors of the commercial and recreational non-tribal fisheries within the FMU. While population structure remains poorly understood, there are no known indications that the species has distinct geospatial population structure. The species has been assessed as a single geographic unit within the FMU since its first assessment in 1994, including throughout the period where it was managed under a rebuilding plan (2001-2014). The harvest specifications that are compared to mortality estimates to assess whether the species is subject to overfishing (currently overfishing limits [OFLs] and before 2005 called acceptable biological catches, or ABCs), have been set at a coastwide level throughout the period the species was managed under a rebuilding plan and in its current rebuilt status (2015-present). The Council cooperatively manages this species at a coastwide scale, with allocative sharing agreements between states and fishery sectors decided every 2 years through the harvest specifications and management measures biennial process. Defining canary rockfish as a stock at a coastwide scale is not expected to trigger future allocative actions, increase management burden during the next biennial cycle compared to 2023, or result in short-term or long-term biological impacts if status is determined at a coastwide scale. The only alternative the Council considered was a coastwide stock definition, as only a single geographic delineation clearly aligned well with past and recent fishery management and policy decisions for the species as well as best scientific information available. Therefore, the Council recommended and NMFS is proposing to approve a single stock of canary rockfish in the FMP.

Copper rockfish are distributed from Mexico to Alaska. Within the FMU, copper rockfish are predominantly harvested in recreational fisheries, but are also harvested in nearshore commercial fisheries to varying degrees along the coast. While population structure remains poorly understood, there are some indications that the species may have distinct geospatial population structure. Multiple studies have found genetic differentiation within the species' distribution, likely due to some level of isolation. Isolation could be a result of lack of larval dispersal or adult movement, patchiness of their preferred rocky habitat along parts of the coast, or other factors. Copper rockfish have been managed for years at a less than coastwide scale, and was assessed in 2021 and 2023 using models at a less than coastwide scale. The geographic stratification of the assessment areas is primarily driven by differences in current and historical harvest intensity. There is no known scientific evidence that there is distinct population structure for copper rockfish between the two assessed areas of the coasts off of Washington and Oregon, or between the two assessed areas off the coast of California. A two stock delineation aligned with the Council's desire to keep the sub-division of management of a species to a minimum, while retaining a geographic delineation aligned with best scientific information available and consistent with past management decisions to manage the species as multiple units. Therefore, the Council recommended and NMFS is proposing to approve two stocks of copper rockfish in the FMP, north and south of 42°00′ N lat.

Dover sole are distributed from the Bering Sea in Alaska to Baja California and are harvested in the groundfish fishery throughout the FMU, though mostly by the non-tribal bottom trawl fishery off Oregon and Washington. The population structure of Dover sole is largely unknown, though the limited information available does not indicate distinct geospatial population structure. The harvest specifications that are compared to mortality estimates to assess whether the species is subject to overfishing have been set at a coastwide scale, for over 30 years. Dover sole's single, coastwide annual catch limit (ACL) is formally allocated in the FMP between trawl and non-trawl fisheries. Defining Dover sole as a stock at a coastwide scale is not expected to trigger future allocative actions, increase management burden during the next biennial cycle compared to 2023-24, or result in short-term or long-term biological impacts if status is determined at a coastwide scale. The only alternative the Council considered was a coastwide stock definition, as only a single geographic delineation clearly aligned well with past and recent fishery management and policy decisions for the species as well as best scientific information available. Therefore, the Council recommended and NMFS is proposing to approve a single stock of Dover sole in the FMP.

Lingcod are distributed along the eastern Pacific coast from Baja California to the Gulf of Alaska. Lingcod are harvested in tribal fisheries and all sectors of non-tribal commercial and recreational fisheries. There are known indications that the species has distinct geospatial population structure, including genetic studies and life history characteristics such as differences in growth, longevity, and size at maturity. Lingcod have been assessed and managed as northern and southern geographic units since 2005. The Council manages this species at a less than coastwide scale, with allocative sharing agreements between states and fishery sectors decided every 2 years through the harvest specifications and management measures biennial process. Defining lingcod as a northern stock and a southern stock within the FMU is not expected to trigger future allocative actions, increase management burden during the next biennial cycle compared to 2023-24, or result in short-term or long-term biological impacts if status is determined at that scale. The only alternative the Council considered was a two-stock definition (lingcod north and lingcod south), as only this geographic delineation clearly aligned well with past and recent fishery management and policy decisions for the species as well as best scientific information available. Therefore, the Council recommended and NMFS is proposing two lingcod stocks in the FMP.

Pacific spiny dogfish live from the Gulf of Alaska to Baja California, with the highest abundance off the coast of British Columbia and Washington State. There are known indications that the portions of the stock within the FMU has interaction with and overlaps with spiny dogfish observed off British Colombia. There are no known indications of geospatial population structure within the FMU. Pacific spiny dogfish have been assessed and managed as a coastwide population since it was first assessed in 2011. The OFLs have been set at a coastwide level since the species was removed from the Other Fish complex in 2015; prior to 2015, the species' OFLs contributed to the coastwide OFL for the Other Fish complex. Allocative sharing agreements between states and fishery sectors for spiny dogfish have not been necessary to date. Defining spiny dogfish as a stock at a coastwide scale is not expected to trigger future allocative actions, increase management burden during the next biennial cycle compared to 2023-24, or result in short-term or long-term biological impacts if status is determined at a coastwide scale. The only alternative the Council considered was a coastwide stock definition, as only a single geographic delineation clearly aligned well with past and recent fishery management and policy decisions for the species as well as best scientific information available. Therefore, the Council recommended and NMFS is proposing a single stock of spiny dogfish in the FMP.

Petrale sole are distributed along the northeastern Pacific coast from the Gulf of Alaska to northern Baja California and their abundance is predominantly distributed by depth rather than latitude, with known seasonal depth migration patterns. Most petrale sole harvest in the FMU come from commercial bottom trawl gear, and fisheries harvesting petrale sole exhibit spatial and seasonal patterns. Population structure along this species' range is poorly understood, but there are no known indications that the species has distinct geospatial population structure. At the recommendation of the stock assessment review panel of 2006, the species has been assessed as a single geographic unit within the fishery management unit since 2009, including throughout the period where it was managed under a rebuilding plan (2009-2014). Similar to canary rockfish, the harvest specifications to assess whether the species is subject to overfishing have been set at a coastwide level for over 30 years, including throughout the period the species was managed under a rebuilding plan. A large majority of the coastwide harvestable surplus is allocated to trawl fisheries, with the allocation being decided every 2 years through the biennial harvest specifications and management measures process. Defining petrale sole as a stock at a coastwide scale is not expected to trigger future allocative actions, increase management burden during the next biennial cycle compared to 2023-24, or result in short-term or long-term biological impacts if status is determined at a coastwide scale. The only alternative the Council considered was a coastwide stock definition, as only a single geographic delineation clearly aligned well with past and recent fishery management and policy decisions for the species as well as best scientific information available. Therefore, the Council recommended and NMFS is proposing to approve a single stock of petrale sole in the FMP.

Quillback rockfish are distributed in the northeastern Pacific Ocean from Southern California to the Gulf of Alaska. Within the FMU, Quillback rockfish are predominantly harvested in recreational fisheries, but are also harvested in nearshore commercial fisheries to varying degrees along the coast. While population structure remains poorly understood, there are some indications that the species may have distinct geospatial population structure within the FMU. While there has been limited genetic work on this species, adults in multiple sites within the species range show high site fidelity with limited adult movement. There are known, albeit limited, differences in growth along the coast, and abundance trends are also estimated to differ regionally. Quillback rockfish have been managed for many years at a less than coastwide scale, and was assessed in 2021 using models at a less than coastwide scale. The geographic stratification of the assessment areas on a state-specific scale is primarily driven by differences in current and historical harvest intensity, but also aligns with the state-specific approaches to fishery management of nearshore species and is consistent with the best scientific information available. Therefore, the Council recommended and NMFS is proposing to approve three state-specific stocks of quillback rockfish in the FMP ( i.e., Quillback Rockfish—Washington, Quillback Rockfish—Oregon, and Quillback Rockfish—California).

Rex sole are distributed along the northeastern Pacific coast from Alaska to southern California. Rex sole are commonly caught in trawl fisheries within the FMU. While population structure remains poorly understood, there are no known indications that the species has distinct geospatial population structure. The species has been assessed as a single geographic unit within the FMU since its first assessment in 2013. The OFLs for rex sole contribute to the Other Flatfish stock complex OFLs, which are compared to mortality estimates of all the species in the complex to assess whether the stock complex is subject to overfishing. Other Flatfish OFLs have been set at a coastwide level since at least 2005. The Other Flatfish complex, including rex sole, is managed by the Council at a coastwide scale and formal or informal sharing agreements between states or fishery sectors have been unnecessary to date. Defining rex sole as a stock at a coastwide scale is not expected to trigger future allocative actions, increase management burden during the next biennial cycle compared to 2023-24, or result in short-term or long-term biological impacts if status is determined at a coastwide scale. The only alternative the Council considered was a coastwide stock definition, as only a single geographic delineation clearly aligned well with past and recent fishery management and policy decisions for the species as well as best scientific information available. Therefore, the Council recommended and NMFS is proposing to approve a single stock of rex sole in the FMP.

Sablefish are distributed along the northern Pacific coast from the coast of Japan, through the Bering Sea in Alaska, and south to the southern tip of Baja California. Sablefish is a highly attained and important commercial fishery component of both tribal and non-tribal West Coast groundfish fisheries. While population structure remains poorly understood, there are few known indications that the species has distinct geospatial population structure within the FMU. Research has indicated geospatially distinctive growth rates and different maximum sizes for this species within the FMU, however recruitment trends do not show the same geospatial differentiation. Sablefish within the FMU has been assessed as a single geographic unit and for over 30 years the harvest specifications to assess whether sablefish is subject to overfishing have been set at a coastwide level. Sablefish are formally allocated in the FMP and the Council manages sablefish harvest at a less than coastwide scale, reflective of the geospatial differences in maximum size and regional fishery characteristics. The formal allocation is both geographic, north and south of 36° N lat., and also establishes sharing among user groups, including two different individual fishing quota fisheries and tribal fisheries. Defining sablefish as a stock at a coastwide scale is not expected to trigger future allocative actions, increase management burden during the next biennial cycle compared to 2023-24, or result in short-term or long-term biological impacts if status is determined at a coastwide scale. The only alternative the Council considered was a coastwide stock definition, as only a single geographic delineation clearly aligned well with past and recent harvest specifications and policy decisions for the species as well as best scientific information available. Therefore, the Council recommended and NMFS is proposing to approve a single stock of sablefish in the FMP. This action does not change the Council's ability to set multiple ACLs for sablefish and makes no changes to the formal sablefish allocation structure described in the FMP.

Shortspine thornyhead are distributed in the waters of the northeastern Pacific coast from the Bering Sea to Baja California. Historically, shortspine thornyhead were mostly harvested in non-tribal fisheries with trawl gear, but since the mid-1990s, harvest of shortspine thornyhead with non-trawl gears like longlines have steadily increased. While population structure remains poorly understood, there are no known indications that the species has distinct geospatial population structure within the FMU. The species has been assessed as a single, coastwide stock throughout the FMU since 2005. For over 20 years the overfishing limits, which are compared to mortality estimates to assess whether shortspine thornyhead is subject to overfishing, have been set for a single geographic unit within the FMU. Shortspine thornyhead are formally allocated in the FMP and the Council manages shortspine thornyhead at a less than coastwide scale, reflective of the differences in regional fishery characteristics. The formal allocation is both geographic, north and south of 34°27′ N lat., and also establishes sharing among user groups, including allocations to the trawl individual fishing quota fishery. Defining shortspine thornyhead as a single stock at a coastwide scale is not expected to trigger future allocative actions, increase management burden during the next biennial cycle compared to 2023-24, or result in short-term or long-term biological impacts if status is determined at a coastwide scale. The only alternative the Council considered was a coastwide stock definition, as only a single geographic delineation clearly aligned well with past and recent fishery management and policy decisions for the species as well as best scientific information available. Therefore, the Council recommended and NMFS is proposing to approve a single stock of shortspine thornyhead in the FMP. This action does not change the Council's ability to set multiple ACLs for shortspine thornyhead and makes no changes to the formal shortspine thornyhead allocation structure described in the FMP.

Squarespot rockfish are distributed from southern Oregon to Mexico with their highest densities in southern California. Squarespot rockfish are not typically targeted due to their small size, but are caught in both commercial and recreational fisheries off the coast of California. While population structure remains poorly understood, there are no known indications that the species has distinct geospatial population structure ( e.g., that it is multiple stocks). The species was assessed for the first time in 2021 as a single stock, using all available data within the FMU. The resulting 2021 assessment was only informative of the portion of the population off the coast of California. The OFLs for squarespot rockfish contribute to the Shelf Rockfish stock complex OFLs, which are compared to mortality estimates of all the species in the complex combined to assess whether the stock complex is subject to overfishing. Shelf Rockfish overfishing status has been assessed north and south of 40°10′ N lat. (Cape Mendocino, in northern California) for over 30 years. However, squarespot rockfish contributes extremely small biomass to the complex harvest specifications north of 40°10′ N lat. due to its relatively sparse distribution and historically minimal harvest in that region. The Shelf Rockfish complex both north and south of 40°10′ N lat. is managed by the Council with allocative sharing agreements between fishery sectors decided every 2 years through the harvest specifications and management measures biennial process. Defining squarespot rockfish as a single stock within the FMU is not expected to trigger future allocative actions, increase management burden during the next biennial cycle compared to 2023-24, or result in short-term or long-term negative biological impacts if status is determined at a coastwide scale. A single geographic delineation clearly aligned well with past and recent fishery management and policy decisions for the species as well as best scientific information available. Therefore, the Council recommended and NMFS is proposing to approve a single stock of squarespot rockfish in the FMP.

Vermilion rockfish are distributed in the waters of the northeastern Pacific from Alaska to Baja California, with highest abundance from central Oregon south into Mexico. Vermilion rockfish are harvested in all sectors of the commercial and recreational fisheries within the FMU. There are known indications that the species has distinct geospatial population structure, including low-average larval dispersal and high site fidelity in adults, which has led to genetic differentiation within the FMU. Vermilion rockfish throughout the FMU were originally considered a single species; however, in southern California it is found as part of a pair of cryptic species, vermilion rockfish and sunset rockfish. For this reason, this cryptic species pair are considered together in the areas of the coast where sunset rockfish is known to be more prevalent.

In the areas of the coast where sunset rockfish are not known to be present, the Council recommended and NMFS is proposing a single stock of vermilion rockfish in the area of the FMU north of 42° N lat. due to a lack of scientific evidence of distinct population structure off the coasts of Washington and Oregon. This geographic delineation for vermilion rockfish clearly aligned well with past and recent fishery management and policy decisions for the species as well as best scientific information available.

The primary biomass of sunset rockfish appears to be in the Southern California Bight, though their range does extend somewhat north of Point Conception, California to an unknown extent. The two species lack morphological distinctions and can only be differentiated with genetic testing. Therefore, they are treated in assessments and fishery management as a single cryptic species pair in the areas of the coast with known sunset rockfish presence. In the areas of the coast where sunset rockfish are present and contributing biomass to a vermilion/sunset rockfish cryptic species pair in the assessments and fisheries, the Council recommended and NMFS is proposing a single stock of vermilion/sunset rockfish in the area of the FMU south of 42° N lat. due to a lack of scientific evidence of distinct population structure off the coast of California and the uncertainty in the northern extent of the range of sunset rockfish. A single geographic delineation for vermilion/sunset rockfish clearly aligned well with past and recent fishery management and policy decisions for the cryptic species pair as well as best scientific information available.

The Council recommended defining 20 stocks for 14 species within the over 80 managed groundfish species within the FMU, as described in Table 1. The Council also recognized the need for, and is scheduled to begin in 2023, a comprehensive effort to define all remaining groundfish species in the FMP.