Due primarily to budgetary constraints, the FLRA is consolidating its office space at 1400 K Street NW, Washington, DC, so that all of the offices currently on the second floor of that address will now be located on the third floor of that address, along with the other FLRA offices that are already located on the third floor. The FLRA is updating its rules to reflect that consolidation and new telephone numbers. The FLRA is also updating telephone numbers and addresses for regional offices that changed since the last update to the regulation, and making one minor change to clarify that “Panama,” rather than “Panama/limited jurisdiction,” is excluded from the Washington Regional Office's geographic jurisdiction.

In addition, as part of its continued move towards fully electronic case files, and to alleviate parties' filing burdens, the FLRA is amending 5 CFR 2429.25(a) to eliminate the requirement that parties file four copies of original documents that they file with: the Authority; the OGC; and the FLRA's Administrative Law Judges, Regional Directors, and Hearing Officers. Because 5 CFR 2429.25(b)(1) provides an exception to the four-copies requirement for documents filed by facsimile, the amendment to § 2429.25(a) renders § 2429.25(b)(1) unnecessary. Therefore, the FLRA is also amending § 2429.25(b) to remove current subsection (b)(1), and to redesignate subsections (b)(2) through (b)(4) as subsections (b)(1) through (b)(3). The FLRA also is making a minor punctuation change to § 2429.25(a).

As this rule pertains to agency organization, practice, or procedure, it is exempt from prior notice and public comment under 5 U.S.C. 553(b)(A). For the same reason, under 5 U.S.C. 553(d)(3), the FLRA and FSIP find that good cause exists for not providing a more delayed effective date.

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Chairman of the FLRA has determined that this final rule will not have a significant impact on a substantial number of small entities, because this final rule applies only to Federal agencies, Federal employees, and labor organizations representing those employees.

The FLRA is an independent regulatory agency and thus is not subject to the requirements of E.O. 12866 (58 FR 51735, Sept. 30, 1993).

The FLRA is an independent regulatory agency and thus is not subject to the requirements of E.O. 13132 (64 FR 43255, Aug. 4, 1999).

This final rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The amended regulations contain no additional information collection or record-keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq.

For the reasons discussed in the preamble, the FLRA amends 5 CFR chapter XIV as follows:

To determine eligibility for Federal small business assistance, SBA establishes small business size definitions (usually referred to as “size standards”) for private sector industries in the United States. SBA uses two primary measures of business size for size standards purposes: average annual receipts over the last several years (either three years or five years for SBA financial assistance programs) and average number of employees over the last 24 months. SBA uses assets for certain financial industries and refining capacity, in addition to employees, for the petroleum refining industry to measure business size. In addition, SBA's Small Business Investment Company (SBIC), Certified Development Company (CDC/504), and 7(a) Loan Programs use either the industry-based size standards or tangible net worth and net income-based alternative size standards to determine eligibility for those programs.

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

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

Section 1116 of the Jobs Act added a new Section 3(a)(5) to the Small Business Act that directed SBA to establish an alternative size standard using maximum tangible net worth and average net income for applicants of the SBA's 7(a) Business and CDC/504 Loan Programs (collectively “Business Loan Programs”). The Jobs Act also established for applicants for the SBA's Business Loan Programs an interim alternative size standard of not more than $15 million in tangible net worth and of not more than $5 million in the average net income after Federal income taxes (excluding any carry-over losses) of the applicant for the two full fiscal years before the date of the application (referred to as “Interim Rule”). Under the Jobs Act, this interim statutory alternative size standard would remain in effect until SBA established a new alternative size standard for the Business Loan Programs through rulemaking. 15 U.S.C. 632(a)(5). Prior to that, SBA had a lower regulatory alternative size standard that applied to the CDC/504 Loan Program and applied temporarily to the 7(a) Loan Program for the period beginning on May 5, 2009, and ending on September 30, 2010. 13 CFR 120.301(b)(2).

On September 29, 2010, SBA issued Information Notice 5000-1175 (available at https://www.sba.gov/sites/default/files/files/bank_5000-1175_0.pdf ) providing that, effective September 27, 2010, the new statutory alternative size standard applied to its Business Loan Programs, thereby replacing and superseding the lower existing alternative size standard of $8.5 million in tangible net worth and $3 million in average net income, as set forth in 13 CFR 121.301(b)(2). The Information Notice further stated that the new statutory alternative size standard would remain in effect until SBA established a permanent alternative size standard for the Business Loan Programs through rulemaking.

In accordance with its regulations, SBA is required to assess the impact of inflation on its monetary-based size standards at least once every five years (67 FR 3041; January 23, 2002) and 13 CFR 121.102(c)). Accordingly, except for the statutory alternative size standard for the SBA Business Loan Programs, SBA adjusted its monetary-based size standards for inflation three times since the Congress enacted the Interim Rule in 2010. 1 In its rulemaking for each adjustment, SBA provided that the statutorily set alternative size standard would remain in effect until SBA established a permanent alternative size standard for the 7(a) and CDC/504 Loan Programs.

To move toward codifying a permanent alternative size standard, in March 2018, SBA published in the Federal Register an advanced notice of proposed rulemaking (ANPRM) seeking public input to assist in establishing a permanent alternative size standard for its 7(a) and CDC/504 Loan Programs (83 FR 12506; March 22, 2018). SBA also invited suggestions on sources of relevant data and information that SBA should evaluate in developing a permanent alternative size standard and in assessing its impact. SBA received a total of 34 comments on the ANPRM, of which 11 were found to be not pertinent to the scope of the ANPRM. Of the 23 comments that were pertinent, all 23 not only supported the statutory alternative size standard, but also recommended making it the permanent alternative size standard for the SBA's 7(a) and CDC/504 Loan Programs.

On July 28, 2023, SBA issued a proposed rule to adopt the current statutory alternative size standard for its Business Loan Programs, subject to a 34.46 percent adjustment for inflation that has occurred since the establishment of the statutory alternative size standard in 2010 (88 FR 48739). As described in the July 2023 proposed rule, the inflation that has occurred since 2010 has eroded the value of the alternative size standard in real terms. SBA has an important policy objective of maintaining the value of monetary-based size standards in real ( i.e., inflation-adjusted) terms, and by adjusting the statutory alternative size standard for inflation, SBA is fulfilling that objective. SBA used the inflation adjustment methodology it describes in its “Size Standards Methodology” white paper, available at www.sba.gov/size, to adjust the statutory alternative size standard for inflation. SBA applied the same methodology in its previous inflation adjustments to other monetary based size standards, including the latest inflation adjustment in 2022 (87 FR 69118; November 17, 2022). The proposed inflation adjustment increased the tangible net worth component of the alternative size standard to $20 million and the net income component to $6.5 million.

In SBA's July 2023 proposed rule, SBA also proposed amending the contract limits applicable to its Surety Bond Guarantee (SBG) Program. The SBG Program is designed to increase small business access to Federal, state, and local government contracting, as well as private-sector contracting, by guaranteeing bid, payment, and performance bonds on contracts for small and emerging contractors who cannot obtain surety bonds through regular commercial channels. 2 Surety bonds are important to small businesses interested in competing for Federal contracts because the Federal Government requires prime contractors, prior to the award of a Federal contract exceeding $150,000 for the construction, alteration, or repair of any building or public work of the United States, to furnish a performance bond issued by a surety satisfactory to the officer awarding the contract in an amount the contracting officer considers adequate to protect the government. SBA's guarantee gives sureties an incentive to provide bonding for small businesses and thereby assists small businesses in obtaining greater access to contracting opportunities. SBA's guarantee is an agreement between a surety and SBA that SBA will assume a certain percentage of the surety's loss should a contractor default on the underlying contract. The SBA's guarantee currently ranges from 80 percent to 90 percent of the surety's loss if a default occurs. For more information about SBA's SBG Program, see https://www.sba.gov/funding-programs/surety-bonds. 3

Section 1695 of the National Defense Authorization Act for Fiscal Year 2013 (NDAA 2013 or Act) (Pub. L. 112-239; January 2, 2013) increased the SBG guarantee limit to $6.5 million, and up to $10 million for a Federal contract if a Federal contracting officer certifies that such a guarantee is necessary. 4 The Act also included a provision to increase the $6.5 million limit periodically for inflation in accordance with 41 U.S.C. 1908. 41 U.S.C. 1908 provides that inflation adjustments for acquisition-related dollar thresholds are to be set by the Federal Acquisition Regulatory Council (FAR Council). It also requires that the Consumer Price Index (CPI) be used to measure inflation. The FAR Council is established under 41 U.S.C. 1302 to assist in the direction and coordination of procurement policy and regulatory activities for the Federal Government. The FAR Council is required to adjust for inflation the acquisition-related dollar thresholds every five years. Based on CPI, inflation has increased more than 30 percent since 2013. This has eroded the value of the bonding limits in real terms since the limits were set by Congress in 2013.

SBA has an important statutory requirement to adjust the bonding limits in accordance with CPI and the FAR Council. The current limits are $6.5 million and, for Federal contracts if a Federal agency certifies that a greater amount is necessary, $10 million. SBA has not adjusted its bonding limits since 2013. The FAR Council has not set a specific threshold in the Federal Acquisition Regulations (FAR) for SBA bonding limits. The FAR Council adjusts the acquisition-related dollar thresholds every five years with the last adjustments occurring in 2015 and 2020. The FAR Council had a $6.5 million threshold in effect in 2013 when the SBA bonding limits were set. In 2015, as part of inflationary adjustments to the acquisition-related dollar thresholds, the FAR Council increased the $6.5 million threshold to $7 million (80 FR 38293; July 2, 2015). Likewise, in 2020, the FAR Council adjusted $7 million threshold to $7.5 million (85 FR 62485; October 2, 2020). The FAR did not have a $10 million threshold in effect in 2013.

As described in the July 2023 proposed rule, in absence of a specific FAR threshold for SBA bonding limits, SBA proposed to follow the FAR adjustment from $6.5 million to $7.5 million in 2020 and then calculate an adjustment from 2020 to 2023 using the same CPI methodology. SBA also proposed to adjust the existing limit of $10 million to maintain the same percentage spread (the lower limit is 65 percent of the upper limit). As explained in the July 2023 proposed rule, by adjusting both limits at the same time, SBA maintains the effectiveness of the necessity provision and avoids the upper limit becoming meaningless. If only the lower limit were adjusted, then at some point it will exceed the necessity limit due to inflation. Thus, SBA's actions fulfill the statutory objective of maintaining the value of monetary-based bonding limits in real ( i.e., inflation-adjusted) terms.

SBA's July 2023 proposed rule invited public comments on SBA's proposed changes generally, and on a variety of specific issues, including the appropriateness of applying SBA's size standards methodology for inflation adjustments to the statutory alternative size standard, whether the inflation-adjusted level of the interim statutory alternative size standard is appropriate as a new permanent alternative size standard under the current credit environment, the impact of using the statutory alternative size standard as the permanent alternative size standard on small businesses seeking loans through its Business Loan Programs, and the appropriateness of SBA's proposed methodology for adjusting statutory contract limits for its SBG Program, especially on SBA's approach to adjust the $10 million contract limit for Federal contracts.

SBA received 13 comments on the proposed rule from various trade associations, businesses, and individual stakeholders, of which 11 comments supported SBA's proposed changes and two comments were not applicable or were outside the scope of SBA's proposed rule. Generally, commenters expressed strong support for SBA's proposed changes without reservation.

Of the 11 comments pertinent to the proposed rule, SBA received three comments from national trade associations, each separately representing surety bond producers, certified development companies (CDCs), and lenders participating in SBA's 7(a) business loan program. These commenters expressed support for SBA's proposed rule on the grounds that SBA's changes would ultimately expand access for small businesses to financial assistance and other resources. For example, the national association representing surety bond producers expressed that SBA's proposal to adjust for inflation the statutory limits for contract size under the SBG Program would allow more small and emerging contractors to grow their businesses by obtaining bonding to bid on public construction projects.

The national association representing CDCs supported SBA's proposal to adopt the statutory alternative size standard of $15 million in tangible net worth and $5 million in net income as the permanent alternative size standard, subject to SBA's proposed inflation adjustment. This commenter petitioned SBA to further adjust the alternative size standard for inflation on the same five-year schedule that SBA currently uses for reviewing its monetary-based industry size standards. Moreover, the commenter expressed general support for continuing to allow small businesses to qualify for SBA financial assistance using either the alternative size standard or the industry size standard to ensure that as many small businesses as possible have access to SBA programs. The commenter further explained that the alternative size standard is particularly helpful for CDCs who may find it is easier to use it rather than the industry-based size standards due to the alternative size standard's consistency across all industries.

The national association representing lenders participating in SBA's 7(a) business loan program also expressed support for continued use of alternative size standards for 7(a) and 504 loan eligibility, explaining that the alternative size standard simplifies the size determination process for lenders since it relies on financial information that is readily available from the loan applicant. This commenter also supported SBA's proposal to make the interim alternative size standard permanent while adjusting it for inflation. The commenter petitioned SBA to adjust the alternative size standard on a periodic five-year basis going forward to assure that inflation does not erode the tangible net worth and net income monetary maximums.

The remaining eight pertinent comments were from individual stakeholders and businesses, including five CDCs, which supported various aspects of SBA's proposed rule. Three individual stakeholders expressed general support for SBA's changes to the bonding thresholds or alternative size standard. The 5 CDCs expressed support for SBA's proposed inflation-adjusted alternative size standard on the basis that the higher levels would ensure that small businesses would remain eligible for SBA financial assistance in an environment of increasing bank conservatism, high inflation and soaring interest rates. Four of the CDCs specifically expressed support for adopting the inflation adjusted statutory threshold as the permanent threshold and further recommended that SBA adjust the alternative size standard for inflation on a periodic basis not to exceed every five years.

SBA agrees with commenters that its proposed changes would allow more small businesses to access SBA programs and financial assistance. As explained in the July 2023 proposed rule, this rule will apply to more than 8.1 million employer firms, of which 98.2 percent are small under industry-based size standards and 92.5 percent are small under the interim statutory alternative size standard. SBA estimates that about 6,275 firms that are above the interim statutory alternate size standard will qualify as small under the inflation-adjusted size alternative standard. While SBA cannot precisely estimate the number of businesses that are approved under the alternative size standard for 7(a) or CDC/504 loans and the number of newly-defined small businesses that will qualify under the inflation-adjusted alternative size standard for loans under these programs due to data limitations, based on the analysis of the available data for fiscal years 2021-2022, SBA estimates that at least 500 7(a) or CDC/504 loans (or 0.4 percent of total loans) will likely be approved under the alternative size standard that otherwise would not have qualified under the industry-based size standard. Likewise, with respect to the SBG Program, under the rule, SBA estimates that more small businesses will qualify to apply for surety bonds as a result of the proposed increases to statutory bonding limits.

SBA also agrees with commenters that using the alternative size standard has benefitted lenders in terms of simplifying and streamlining the loan application process and has reduced burden on applicants by providing an alternative method to establish eligibility for SBA financial assistance which would otherwise require businesses to keep three years or potentially five years of data to establish eligibility using industry-based size standards. Thus, SBA continues to support the use of alternative size standards for use in its Business Loan programs.

As explained in the July 2023 proposed rule, SBA believes its changes to the alternative size standard will allow more businesses to gain eligibility for SBA's Business Loan Programs for which they would not otherwise be eligible based on their industry-specific size standards. SBA's changes to the SBG statutory contract limits will provide greater access to contracting opportunities for small businesses. Thus, SBA's changes will allow these additional businesses to attain SBA assistance that may be critical to their continued growth or economic viability.

With due consideration of all public comments, as discussed above, and in light of the overall strong support for SBA's proposed changes and anticipated impacts, SBA is adopting the proposed adjustments in the July 2023 proposed rule without change. SBA's adoption of the proposed changes provides assurances to the public that the Agency is monitoring inflation to determine whether to adjust size standards and other monetary thresholds within a reasonable period. SBA's adoption of the proposed changes also ensures that the thresholds applicable to the Business Loan Programs and SBG Program are up-to-date and appropriate for the respective intended beneficiaries of the programs. Given the current developments in the U.S. economy, SBA will continue to monitor the inflation and other economic indicators and their impacts on size standards and adjust size standards, as needed. SBA will adjust the levels for inflation on the same five-year schedule that SBA currently uses for reviewing its monetary-based industry size standards in accordance with 13 CFR 121.102(c).

Specifically, SBA is adopting the statutory alternative size standard of $15 million in tangible net worth and $5 million in net income as the permanent alternative size standard, subject to adjustment for inflation that has occurred since the establishment of the statutory alternative size standard in 2010. The inflation adjustment increases the size standard's level for tangible net worth to $20 million and for net income to $6.5 million. SBA is also adopting, as proposed, the inflation-adjusted thresholds applicable to the statutory limits for contract size under the SBG Program. The adjustment increases the contract limit to $9 million and to $14 million for Federal contracts if a Federal contracting officer certifies that such a guarantee is necessary. The statutory responsibility for adjusting the size standard for inflation lies with the Federal Acquisition Regulation. In the absence of FAR action, SBA will adjust the SBG contract limits on the same five-year schedule that SBA currently uses for reviewing its monetary-based industry size standards in accordance with 13 CFR 121.102(c).

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

The Office of Management and Budget (OMB) has determined that this final rule is a significant regulatory action for purposes of Executive Order 12866. This rule affects applicants for SBA's 7(a) Business and CDC/504 Loan Programs and businesses and sureties that use the SBG Program. To help explain the need for this rule and the rule's potential benefits and costs, SBA is providing below a Regulatory Impact Analysis for this rule.

SBA is required by the Jobs Act to adopt an alternative size standard based on tangible net worth and net income after taxes for its 7(a) and CDC/504 Loan Programs. SBA believes that adopting an alternative size standard is in the best interests of small businesses seeking SBA's financial assistance. SBA's mission is to aid and assist small businesses through a variety of financial, procurement, business development, and counseling programs. To assist the intended beneficiaries of these programs effectively, SBA establishes distinct definitions (usually referred to as “size standards”) to determine which businesses are deemed small businesses. One of the SBA's missions has been to provide necessary financing to small businesses that are not able to obtain loans in the commercial market in reasonable terms. Many businesses that have exceeded their industry-based size standards cannot grow and support their employees without additional capital from SBA's financial assistance programs. The alternative size standard established by Congress assisted some small businesses that could not have otherwise qualified under their industry-based size standards.

SBA is required to assess the impact of inflation on its monetary-based size standards at least once every five years (67 FR 3041 (January 23, 2002) and 13 CFR 121.102(c)). Inflation, as measured by the change in GDP price index, has increased more than 34 percent from the enactment of the interim statutory alternative size standard in 2010. Inflation has caused the statutory alternative size standard to decrease in real terms, thereby forcing some businesses to lose small business status and eligibility for SBA's Business Loan Programs. As stated previously, SBA adjusted its monetary size standards three times since the establishment of the statutory alternative size standard in 2010, but the Agency did not adjust the statutory alternative size standard for SBA's Business Loan Programs. SBA has an important policy objective of maintaining the value of monetary-based size standards in real ( i.e., inflation-adjusted) terms, and by adjusting the statutory alternative size standard for inflation this rulemaking fulfils that objective.

The Small Business Act delegates to SBA's Administrator responsibility for establishing definitions for small business. The Act requires that small business definitions vary to reflect industry differences. 15 U.S.C. 632(a). Some businesses in need of financial assistance from SBA's 7(a) and CDC/504 Loan Programs may exceed the applicable size standard for their industries. The alternative size standard, in addition to the industry-based size standards, would apply uniformly across all industries and expand credit opportunities to businesses that are in need of SBA's financial assistance. The inflationary adjustment of the statutory alternative size standard would not affect existing industry-based size standards but rather would supplement them and make financing available to otherwise eligible applicants that exceed their industry-based size standards.

NDAA 2013 increased the SBG guarantee limit to $6.5 million, and up to $10 million for a Federal contract if a Federal contracting officer certifies that such a guarantee is necessary. The act also included a provision to increase the $6.5 million limit periodically for inflation in accordance with 41 U.S.C. 1908. Based on the CPI, inflation has increased more than 30 percent since 2013. SBA has not adjusted its bonding limits since 2013. This has eroded the value of the bonding limits in real terms since the limits were set by Congress in 2013. The adjustment of the SBG contract limits will bring them in line with ongoing inflation and current contracting trends and increase contracting opportunities to small businesses.

The most significant benefit of this regulatory action for businesses is that certain businesses, especially in industries with receipts-based size standards, will gain eligibility for SBA's Business Loan Programs for which they would not otherwise be eligible based on their industry-specific size standards. This will allow them to attain financing that may be critical to their continued growth or economic viability.

Table 1, Comparison Between Industry-Based and Inflation-Adjusted Statutory Alternative Size Standard (FY 2021-2022), compares the percentages of industries that have higher industry-based size standards relative to inflation-adjusted statutory size standard by type of size standard. For nearly 96 percent of industries with receipts-based size standards, the inflation-adjusted alternative size standard is found to be, in relative terms, higher than the industry-based size standards, thereby allowing businesses exceeding industry-based size standards in those industries to qualify for 7(a) and CDC/504 Loan Programs under the inflation-adjusted alternative size standard. The corresponding figure for the interim statutory alternative size standard is nearly 93 percent. On the other hand, for 77 percent of industries with employee-based size standards, industry-based size standards are, in relative terms, higher than the inflation-adjusted alternative size standard. That figure for the interim statutory alternative size standard is 82.5 percent. This suggests that the alternative size standard provides more benefits to businesses in the receipts-based industries than those with employee-based size standards. The higher inflation-adjusted alternative size standard will continue to help businesses above the industry-based size standards to receive SBA's financing.

Table 2, Comparison Between Industry-Based and Inflation-Adjusted Statutory Alternative Size Standards by Sector (FY 2021-2022), shows by sector the impacts of inflation adjustment to the statutory alternative size standard on proportions of industries for which industry-based size standards are higher than the inflation-adjusted alternative size standard. Compared to the interim statutory alternative size standard, the proportions of industries for which alternative size standard is higher than the industry-based size standards are higher under the inflation-adjusted alternative size standard, especially for industries with employee-based size standards. For example, for just 7.8 percent of industries in manufacturing, the statutory size alternative size standard is higher than the industry-based size standards. That figure increases to 13.3 percent under the inflation-adjusted size standard. Another example is wholesale trade, where percentage of industries for which the statutory alternative size standard is higher than the industry-based size standard increases from about 68 percent under the statutory alternative size standard to about 78 percent under the inflation-adjusted alternative size standard.

SBA cannot make a precise determination of the number of businesses that were approved under the alternative size standard for 7(a) or CDC/504 Business Loans since the enactment of the statutory alternative size standard in 2010 because the Agency does not store the data on whether an applicant for its 7(a) or CDC/504 Loan Program was qualified under its industry-based size standard or under the alternative size standard. The available data show that alternative size standard established by Congress enabled some small businesses above the industry-based size standards to get SBA's financing.

As stated elsewhere, SBA also does not compile the data on average annual receipts, net worth, and net income. The only available data on business size is the number of employees. SBA examined its 7(a) and CDC/504 loan data for fiscal years 2021-2022. Based on this data, SBA estimates that 500 recipients of the SBA Business Loans (or 0.4 percent of the total loans) that appeared to have exceeded their industry-based size standards were granted 7(a) and CDC/504 loans, implying that most likely they qualified under the statutory alternative size standard. Thus, this result indicates that the higher alternative size standard expanded credit availability to more small businesses through SBA's 7(a) and CDC/504 Loan Programs.

Table 3, Applicant's Eligibility Under the Inflation-Adjusted Statutory Alternative and Industry-Based Size Standards (FY 2021-2022), shows the eligibility of recipients of SBA loans through 7(a) and CDC/504 Programs during fiscal years 2021-2022 under the industry-based and inflation-adjusted alternative size standard. More than 99.5 percent ( i.e., 117,327/117,882 = 0.9953) of loan recipients were found to have met both the industry-based size standards and inflation-adjusted alternative size standard. As in the case of the statutory alternative size standard, about 500 or 0.4 percent of loan recipients that did not meet the industry-based size standard met inflation-adjusted alternative size standard. About 0.1 percent ( i.e., 94/117,882 = 0.001) of loan recipients were found to have exceeded the interim statutory alternative size standard. That figure was 0.05 percent ( i.e., 54/117,882 = 0.0005) for the inflation-adjusted alternative size standard. Thus, 40 loan recipients that did not meet the statutory size standard met the inflation-adjusted alternative size standard.

Based on the data for 2017 Economic Census, Agricultural Census, and County Business Patterns special tabulations, SBA estimates that about 6,275 businesses that are above the interim statutory alternative size standard will qualify under the inflation-adjusted alternative size standard. About 25 additional SBA Business Loans, totaling up to $50 million, will be made to these newly-qualified businesses using the higher inflation-adjusted alternative size standard. That constitutes less than 0.1 percent of the loan activity during fiscal years 2021-2022. These results are consistent with results in Tables 7 and 8 of the July 2023 proposed rule, which showed that only a very small fraction of the SBA Business Loans and loan amount go to businesses that were close to the tangible net worth and net income thresholds of the statutory size standard. Thus, the vast majority of SBA Business Loans go to businesses that are significantly below the tangible net worth and net income thresholds of the statutory alternative size standard.

The 7(a) Loan Program, SBA's largest loan program, includes financial help for businesses with special requirements. Small businesses can use SBA's 7(a) guaranteed loans for short- and long-term working capital, revolving funds based on inventory or receivables, fixed assets, and refinancing. Small businesses can use SBA's CDC/504 loans for the purchase of land, buildings, improvements, and equipment. These loans provide long-term, fixed-rate financing to small businesses to acquire real estate or machinery or equipment for expansion or modernization. The CDC/504 loan proceeds are generally limited to fixed assets and their related soft costs.

Businesses are often denied SBA's loans for reasons unrelated to the use of the loan proceeds, the concern's ability to repay the loan, or other credit-based reasons. Rather, they can be denied because they exceed the size standards for their industries. Some business concerns that exceed their industry-based size standards might be eligible for SBA's financial assistance under the alternative size standard that this final rule adopts.

Raising the SBG bond guarantee limits will increase contracting opportunities for more small businesses and bring the limits in line with inflation. Due to the lack of data, SBA is unable to estimate the number of additional small businesses that will qualify to apply for bonding through the SBG Program for non-Federal ( e.g., state government, local government, private sector, etc.) contracting because of increases to bond guarantee limits for inflation. Because the construction sector accounts for more than 95 percent of surety bonds and total value of bonded contracts, to estimate the number of additional small businesses and contracts that will qualify for surety bonds on Federal contracts, SBA analyzed the small business contract awards from FPDS-NG for the construction sector for fiscal years 2021-2022. These results are presented in Table 4, Federal Contracts in Construction for Fiscal Years 2021-2022. Because of the adopted increase to the lower contract limit from $6.5 million to $9 million, without contracting officer's certification, annually up to about 150-155 additional small businesses will be eligible to apply for surety bonds on about 175-180 Federal construction contracts totaling between $1.4 billion and $1.5 billion in value. Similarly, as a result of the adopted increase to the upper contract limit from $10 million to $14 million, with contracting officer's certification, annually up to about 100-110 additional small businesses will be eligible to apply for surety bonds on 110-120 Federal construction contracts totaling between $1.3 billion and $1.4 billion in value.

Raising the contract bond limits could lead to larger contracts being guaranteed by the SBA and, as a result, could increase the risk of program losses. To determine if higher contract limits will increase the risk of program losses, SBA analyzed all claim activity from October 1, 2020, to March 31, 2023. These results are presented in Table 5, Net Claims by Contract Size for October 1, 2020, to March 31, 2023. The results show a positive relationship between contract size and net claims. For example, contracts below $1 million in value accounted for nearly 66 percent of total claims but accounted for only 29 percent of net claim amount. On the other hand, contracts above $1 million in value accounted for 34 percent of claims but accounted for 71 percent of total net claim amount. Thus, the data suggests that higher contract limits may lead to larger contracts being guaranteed, which in turn may lead to an increase in defaults and, as a result, higher losses. However, SBA is unable to estimate exact losses due to the lack of data to estimate the number additional surety bonds on non-Federal contracts resulting from increases to contract bond limits.

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

Under the Regulatory Flexibility Act (RFA), this final rule may have a significant impact on a substantial number of small entities. As described above, this final rule could affect small entities seeking assistance through SBA's (7a) and CDC/504 Loan and SBG Programs.

Immediately below, SBA sets forth a final regulatory flexibility analysis (FRFA) of this final rule addressing the following questions: (1) What is the need for, and the objective of, the rule? (2) What significant issues were raised by the public comments in response to the initial regulatory flexibility analysis, and what changes were made as a result of such comments? (3) What is SBA's response to comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and what changes were made as a result of such comments? (4) What are SBA's description and estimate of the number of small entities to which the rule would apply? (5) What are the projected reporting, record keeping, and other compliance requirements of the rule? (6) What steps has SBA taken to minimize significant economic impact on small entities and why has SBA rejected the other significant alternatives to the rule in favor of the adopted one?

Under the Jobs Act, SBA is required to adopt an alternative size standard using maximum tangible net worth and net income for its 7(a) and CDC/504 Loan Programs. The Jobs Act defined an interim statutory alternative standard based on tangible net worth of $15 million and net income of $5 million until the SBA Administrator permanently designates an alternative size standard based on tangible net worth and net income for those programs. Many businesses that exceed their industry-based size standards cannot grow and support their employees and other businesses that depend on them without additional capital from SBA's financial assistance programs. The inflation-adjusted alternative size standard adopted under this final rule will enable such businesses to qualify for SBA's 7(a) and CDC/504 Loan Programs.

Section 3(a) of Small Business Act (15 U.S.C. 632(a)) gives the SBA's Administrator responsibility to establish and change small business size standards. Within its administrative discretion, SBA implemented a policy in its regulations to review the effect of inflation on size standards at least once every five years (13 CFR 121.102(c)) and make any changes as appropriate. SBA has adjusted its monetary-based size standards three times since the enactment of the interim statutory alternative size standard in 2010. However, SBA did not adjust the statutory alternative in each of those adjustments. Inflation, as measured by the change in GDP price index, has increased more than 34 percent since 2010. This has eroded the value of the statutory alternative size alternative in real terms. Consequently, many businesses above their industry-based size standards and in need of financial assistance from SBA's 7(a) or CDC/504 Loan Programs may have exceeded the statutory alternative size standard and lost eligibility for benefits of those programs. The inflationary adjustment of the statutory alternative size standard in this final rule will enable such businesses to qualify for those programs. The alternative size standard applies uniformly across all industries and does not affect existing size standards by industry. Rather it supplements them, by making more financing available to otherwise ineligible businesses that exceed their industry-based size standard.

Regarding the SBG Program, NDAA 2013 increased the SBG guarantee limit to $6.5 million, and up to $10 million for a Federal contract if a Federal contracting officer certifies that such a guarantee is necessary. The Act also included a provision to increase the $6.5 million limit periodically for inflation in accordance with 41 U.S.C. 1908. Based on the CPI, inflation has increased more than 30 percent since 2013. SBA has not adjusted its bonding limits since 2013. This has eroded the value of the bonding limits in real terms since the limits were set by Congress in 2013. This has adversely impacted small business contractors seeking bonding assistance from the SBA SBG Program. The adjustment of the SBG contract limits will bring them in line with ongoing inflation and current contracting trends and increase contracting opportunities to small businesses.

SBA received 13 comments on the July 2023 proposed rule from various trade associations, businesses, and individual stakeholders, of which 11 comments supported SBA's proposed changes and two comments were not applicable or were outside the scope of SBA's proposed rule. Generally, commenters expressed strong support for SBA's proposed changes, without reservation. Thus, with due consideration of all public comments, as discussed in detail in Section IV of this final rule, and in light of the overall strong support for SBA's proposed changes and anticipated impacts, SBA is adopting the proposed adjustments in the July 2023 proposed rule without change. Specifically, SBA is adopting the statutory alternative size standard of $15 million in tangible net worth and $5 million in net income as the permanent alternative size standard, subject to adjustment for inflation that has occurred since the establishment of the statutory alternative size standard in 2010. The inflation adjustment increases the size standard's level for tangible net worth to $20 million and for net income to $6.5 million. SBA is also adopting, as proposed, the inflation-adjusted thresholds applicable to the statutory limits for contract size under the SBG Program. The adjustment increases the contract limit to $9 million and to $14 million for Federal contracts if a Federal contracting officer certifies that such a guarantee is necessary. The statutory responsibility for adjusting the size standard for inflation lies with the Federal Acquisition Regulation. In the absence of FAR action, SBA will adjust the SBG contract limits on the same five-year schedule that SBA currently uses for reviewing its monetary-based industry size standards in accordance with 13 CFR 121.102(c).

SBA did not receive public comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule. As such, no changes were made to the rule in response to such comments.

This rule will apply to more than 8.1 million employer firms, of which 98.2 percent are small under industry-based size standards and 92.5 percent are small under the interim statutory alternative size standard. About 92.6 percent of firms will qualify as small under the inflation-adjusted alternative size standard. About 6,275 firms that are above the interim statutory alternate size standard will qualify as small under the inflation-adjusted size alternative standard. That is less than 0.1 percent of firms that are small under the interim statutory alternative size standard.

For the reasons discussed under the Regulatory Impact Analysis section of this rule, because of lack of relevant data ( e.g., receipts, tangible net worth, and net income of loan recipients), SBA cannot precisely state the number of businesses that were approved under the alternative size standard for 7(a) or CDC/504 loans and the number of newly-defined small businesses that will qualify under the inflation-adjusted alternative size standard for loans under these programs. However, based on the analysis of the available data for fiscal years 2021-2022, SBA estimates that at least 500 7(a) or CDC/504 loans (or 0.4 percent of total loans) were likely approved under the alternative size standard.

With respect to the SBG program, more than 95 percent of the bonding activity is concentrated in the construction sector. Based on the 2017 Economic Census, there are 689,260 small employer firms in construction to which this rule will apply. Additionally, about 2.5 percent of the bonding activity occurs in 11 industries in Sector 56 with more than 209,000 small firms in those industries to which this rule will also apply. More small businesses will qualify to apply for surety bonds as a result of adopted increases to statutory bonding limits.

A new size standard does not impose any additional reporting, record keeping, or compliance requirements on small entities. Revising size standards alters the access to SBA programs that assist small businesses, but does not impose a regulatory burden as the size standards neither regulate nor control business behavior.

There are no alternatives to establishing a size standard for the Agency's 7(a) and CDC/504 Loan Programs based on an applicant's tangible net worth and net income because this is a statutory requirement. Specifically, the Jobs Act directs the Agency to use a firm's tangible net worth of not more than $15 million and average net income after Federal income taxes (excluding any carry-over losses) for the two full fiscal years immediately before its application of not more than $5 million until the Administrator adopts a different, permanent alternative size standard based on net worth and net income measures. SBA may propose to adopt a higher or lower alternative size standard based on an applicant's tangible net worth and net income, however, SBA's proposed alternative size standards, as detailed in the July 2023 proposed rule, were strongly supported by commenters, including trade associations small businesses and individuals. Thus, in this final rule, SBA is adopting the interim statutory alternative size standard as a permanent alternative size standard, subject to adjustment for inflation that has occurred since the standard's establishment in 2010.

A description of the need for this regulatory action and its associated benefits and costs associated with this action, including possible impacts that relate to Executive Order 13563 are included above in the Regulatory Impact Analysis. This final rule will further expand the benefits of the Jobs Act which also increased the upper limits of loans available under the 7(a) and CDC/504 Loan Programs, without restricting access and availability to qualified entities. SBA's changes to the SBG statutory contract limits will increase contracting opportunities to small businesses.

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

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

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

For the reasons set forth in the preamble, the Small Business Administration amends 13 CFR part 115 and 13 CFR part 121 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain De Havilland Aircraft of Canada Limited Model DHC-8-401 and -402 airplanes. The NPRM published in the Federal Register on April 19, 2023 (88 FR 24144). The NPRM was prompted by AD CF-2022-21, dated April 21, 2022, issued by Transport Canada, which is the aviation authority for Canada (referred to after this as the MCAI). The MCAI states that certain saddle washers for the front and rear spar joint may have been incorrectly manufactured for several years. Non-conforming saddle washers could potentially become deformed when installed, and lead to gaps at the horizontal stabilizer to vertical stabilizer joint, that would result in reduction of the pre-load at the joint.

In the NPRM, the FAA proposed to require inspecting the horizontal stabilizer to vertical joint for gaps and bending of the saddle washer and adjacent washers, and replacing parts if necessary. The FAA is issuing this AD to address gapping and bending of the saddle washer that could have the potential to reduce the life of the bolt, which in turn could affect the structural integrity of the horizontal stabilizer to vertical stabilizer joint.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0933.

The FAA received a comment from the Air Line Pilots Association, International (ALPA). ALPA supported the NPRM without change.

The FAA received additional comments from De Havilland Aircraft of Canada Limited. The following presents the comments received on the NPRM and the FAA's response to each comment.

De Havilland Aircraft of Canada Limited requested that the FAA revise the proposed AD to refer to De Havilland Aircraft of Canada Limited Service Bulletin 84-55-12, Revision B, dated April 20, 2023. De Havilland Aircraft of Canada Limited noted that the service information had been updated since the NPRM was released.

The FAA agrees with the request. De Havilland Aircraft of Canada Limited Service Bulletin 84-55-12, Revision B, dated April 20, 2023, provides clarity on service information that may be used to do rework if there are gaps in the new radius fillers (saddle washers), and specifies an additional radius filler part number. The FAA has revised this AD to refer to De Havilland Aircraft of Canada Limited Service Bulletin 84-55-12, Revision B, dated April 20, 2023. The FAA has also revised paragraph (i) of this AD to provide credit for De Havilland Aircraft of Canada Limited Service Bulletin 84-55-12, Revision A, dated February 16, 2022.

De Havilland Aircraft of Canada Limited requested that the FAA revise paragraph (h) of the proposed AD. The commenter stated that De Havilland Aircraft of Canada Limited Service Bulletin 84-55-12, Revision B, dated April 20, 2023, includes instructions for reworking the new radius fillers that exhibit fouling conditions (gapping), and that the proposed AD should be amended to explain this.

The FAA agrees to clarify. Paragraph (h) of this AD requires corrective actions (parts replacements) in accordance with Section 3.B., Part B, of the Accomplishment Instructions of De Havilland Aircraft of Canada Limited Service Bulletin 84-55-12, Revision B, dated April 20, 2023. The rework the commenter mentioned is part of Section 3.B., Part B, and is specified as part of the corrective actions if gapping is found after replacement of the radius filler. Therefore, that step is included as part of the requirements of paragraph (h) of this AD.

De Havilland Aircraft of Canada Limited requested that the FAA revise the cost of compliance section to correct the number of affected airplanes. The commenter stated that the number of aircraft on the U.S. registry is 49, not 400 as stated in the NPRM.

The FAA agrees that the number of U.S. registered airplanes is less than that specified in the NPRM. After reviewing the FAA registry, the FAA has determined the correct number of affected airplanes is 54. The FAA has revised the Costs of Compliance section accordingly.

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

The FAA reviewed De Havilland Aircraft of Canada Limited Service Bulletin 84-55-12, Revision B, dated April 20, 2023. This service information specifies procedures for a detailed visual inspection of the front and rear spar joints for signs of gapping or bending of the radius filler and/or adjacent washers, and depending on the inspection results, replacement of the saddle washer, adjacent washers, bolt, and barrel nut.

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

The FAA estimates that this AD affects 54 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 747-8 and 747-8F series airplanes. The NPRM published in the Federal Register on August 25, 2023 (88 FR 58120). The NPRM was prompted by a report indicating all six IDUs became blank when new flight plan data was entered in the FMS. It was determined that the Jeppesen airport map database (AMDB) had an error in the data structure tied to the Sydney airport (YSSY). The Electronic Flight Instrumentation System/Engine Indicating and Crew Alerting System (EICAS) Interface Units (EIUs) were unable to process the data structure, resulting in the displays blanking. Jeppesen subsequently fixed the AMDB to address the issue with YSSY and additional airport codes with an incorrect data structure. The current EIU software is unable to process incorrect data structures, which results in an EIU fault that cannot be cleared by the automated reset function of an EIU. After five resets the EIU defaults to shut down, resulting in all six IDUs, which are controlled by the EIUs, becoming blank. The EIU shut down can also result in an autothrottle disconnect and a degraded autopilot mode. The problem can occur on the ground when an airport code with an incorrect data structure in the AMDB is entered as an origin or destination and the flight plan is then put into operation by the FMS. In flight, the problem can occur when an airport code with an incorrect data structure in the AMDB is entered as the selected diversion airport.

Additionally, the existing software does not provide an earlier indication of decaying airspeed during the landing phase for flap settings 25 and 30. The revised software provides an earlier threshold for triggering the low airspeed alerting EICAS Caution message.

In the NPRM, the FAA proposed to require installing updated software. The unsafe condition, if not addressed, could result in loss of all flight deck displays (Primary Flight Display/EICAS/Navigation Display, not including standby displays) combined with potential impact to the autopilot and auto-throttle functionality and lack of crew visibility of any subsequent system failures, which can prevent continued safe flight and landing; it could also result in inadequate alerting of decaying airspeed, unacceptably low airspeed, and loss of control of the airplane.

The FAA received comments from two commenters. Boeing stated it had no technical objection to the proposed AD. An anonymous individual commented generally on the manufacturer but provided no comments on the proposed actions or on the determination of the costs.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Boeing Alert Requirements Bulletin 747-31A2544 RB, dated March 31, 2020. This service information specifies procedures for installing Integrated Display System (IDS) 804 software in each of the six Liquid Crystal Display (LCD) IDUs and in each of the three EIUs, if not already installed; followed by installing IDS 805 software, which includes EIU software part number COL3F-0034-E805 and LCD software part number 3177-COL-DL8-05.

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

The FAA estimates that this AD affects 19 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2024-0039; Project Identifier MCAI-2023-00966-R” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to William McCully, Aviation Safety Engineer, FAA, International Validation Branch, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; phone (404) 474-5548; email william.mccully@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0072, dated April 26, 2022 (EASA AD 2022-0072), to correct an unsafe condition on Airbus Helicopters Model EC 225 LP helicopters, serial numbers 2650, 2651, 2653, 2684, 2712, and 2796.

This AD was prompted by a report that placards located on the RH side of the VIP flap door of the passenger cabin do not provide adequate door opening instructions necessary to operate the RH side VIP flap door in case of the helicopter ditching. The unsafe condition, if not addressed, could prevent jettisoning of the RH side VIP flap door during an emergency situation, possibly obstructing evacuation and resulting in injury to occupants.

You may examine the EASA AD in the AD docket at regulations.gov under Docket No. FAA-2024-0039.

EASA AD 2022-0072 requires installing a placard over the current placard, which correctly specifies jettisoning instructions for the RH side of the VIP flap door.

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

The FAA reviewed Airbus Helicopters Alert Service Bulletin (ASB) No. EC225-52A023, Revision 0, dated January 22, 2020 for Model EC225LP helicopters. This service information specifies instructions for covering the existing incorrect placard with a correct placard, and reporting certain information to the manufacturer.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of the same type design.

This AD requires accomplishing the actions specified in EASA AD 2022-0072, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and the EASA AD.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2022-0072 will be incorporated by reference in this FAA final rule. This AD would, therefore, require compliance with EASA AD 2022-0072 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2022-0072 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0072. Service information referenced in EASA AD 2022-0072 for compliance will be available at regulations.gov under Docket No. FAA-2024-0039.

Service information referenced in EASA AD 2022-0072 specified reporting certain information to Airbus Helicopters, including sending pictures, whereas this AD does not require reporting any information or sending any pictures.

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

There are currently no domestic operators of these products. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the foregoing reasons, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

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

There are no costs of compliance with this AD because there are no helicopters with this type certificate on the U.S. Registry.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2019-16-11, Amendment 39-19714 (84 FR 45061, August 28, 2019) (AD 2019-16-11). AD 2019-16-11 applied to certain Airbus SAS Model A300 F4-605R and F4-622R airplanes. AD 2019-16-11 required repetitive HFEC inspections of the aft LDCD frame forks; a one-time check of the LDCD clearances; a one-time detailed visual inspection of hooks, eccentric bushes, and x-stops; and corrective actions if necessary. The FAA issued AD 2019-16-11 to address cracked or ruptured aft LDCD frames, which could allow loads to be transferred to the remaining structural elements. This condition could lead to the rupture of one or more vertical aft LDCD frames, which could result in reduced structural integrity of the aft LDCD.

The NPRM published in the Federal Register on October 31, 2023 (88 FR 74369). The NPRM was prompted by AD 2023-0117, dated June 13, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0117) (also referred to as the MCAI). The MCAI states that based on more detailed stress analyses, it has been determined that the threshold for the (repetitive) HFEC inspection could be extended from 12,500 flight hours to 26,455 flight hours for those affected parts installed on an LDCD that has been modified or replaced. It was also determined that an incorrect HFEC inspection threshold had been defined for the affected parts that have not been modified or replaced. Additional widespread fatigue damage analysis determined that all frame forks of affected LDCDs are susceptible to crack development, which compromises the structural integrity of the LDCD and therefore of the airplane.

In the NPRM, the FAA proposed to continue to require the actions in AD 2019-16-11 and require correcting the HFEC inspection threshold, modifying the LDCD frame forks, and prohibit the installation of affected LDCDs under certain conditions, as specified in EASA AD 2023-0117. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-2136.

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

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

EASA AD 2023-0117 specifies procedures for repetitive HFEC inspections for cracks of the aft LDCD frame forks; a one-time check of the LDCD clearances; a one-time detailed visual inspection for signs of wear on the hooks, eccentric bushes, and x-stops; and corrective actions if necessary. In addition, EASA AD 2023-0117 specifies procedures for modifying frame forks that have not been reinforced. EASA AD 2023-0117 also prohibits the installation of affected LDCDs under certain conditions.

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

The FAA estimates that this AD affects 58 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Bombardier, Inc., Model BD-100-1A10 airplanes. The NPRM published in the Federal Register on November 13, 2023 (88 FR 77538). The NPRM was prompted by AD CF-2023-13, dated February 24, 2023, issued by Transport Canada, which is the aviation authority for Canada (referred to after this as the MCAI). The MCAI states that the manufacturer of SCU part number (P/N) 46000-01 introduced a new filter plate connector that does not meet the certification requirements related to the susceptibility of electronic components to high intensity radiated field. According to the MCAI, this non-compliant filter plate connector, if not replaced, could result in a malfunction of the NWS system and cause un-commanded steering or lateral excursion from the runway.

In the NPRM, the FAA proposed to require determining if the SCU is an affected SCU, replacing all affected SCUs, and rigging and testing the NWS control. In the NPRM, the FAA also proposed to prohibit installing an affected SCU on any airplane. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-2145.

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

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

The FAA reviewed Bombardier Service Bulletin 100-32-34, dated October 18, 2021, and Bombardier Service Bulletin 350-32-010, dated October 18, 2021. This service information specifies procedures for determining the serial number of SCU P/N 46000-01, replacing any affected SCU, and rigging and testing the NWS control. These documents are distinct since they apply to different airplane serial numbers. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 725 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, pilots do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Air Missions (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, 14 CFR part 97 is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Air Missions (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, pilots do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, 14 CFR part 97 is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

In a document published in the Federal Register on June 30, 2008, VA amended the beneficiary travel regulations that provide a mechanism for payment of travel expenses within the United States under 38 U.S.C. 111 to help veterans and other persons obtain care and services from VA's Veterans Health Administration. See 73 FR 36796. There is an information collection requirement in 38 CFR 70.20. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement, unless it displays a currently valid Office of Management and Budget (OMB) control number. See also 5 CFR 1320.8(b)(3)(vi).

As required by 44 U.S.C. 3507(d), VA submitted this information collection to OMB for its review. OMB approved the information collection requirement associated with the final rules and assigned OMB control number 2900-0080. However, § 70.20 contains an inaccurate OMB control number of 2900-0080. The correct OMB control number should be 2900-0798. This final rule updates § 70.20 by substituting the correct and approved OMB control number.

Denis McDonough, Secretary of Veterans Affairs, approved and signed this document on February 9, 2024, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons set out in the preamble, the Department of Veterans Affairs amends 38 CFR part 70 as follows:

Pursuant to 39 U.S.C. 3642(d)(2) and 39 CFR 3040.103, the Commission provides a Notice of Update to Product Lists by listing all necessary modifications to both the Market Dominant and Competitive product lists between July 1, 2023 and December 31, 2023.

Pursuant to 39 CFR part 3040, the Commission maintains a Mail Classification Schedule (MCS) that includes rates, fees, and product descriptions for each Market Dominant and Competitive product, as well as product lists that categorize Postal Service products as either Market Dominant or Competitive. See generally 39 CFR part 3040. The product lists are published in the Code of Federal Regulations as 39 CFR Appendix A to Subpart A of Part 3040—Market Dominant Product List and Appendix B to Subpart A of Part 3040—Competitive Product List pursuant to 39 U.S.C. 3642(d)(2). See 39 U.S.C. 3642(d)(2). The MCS is updated by the Commission on its website on a quarterly basis. 1 The product lists are updated biannually and are also published in the Federal Register pursuant to 39 CFR 3040.103. 2

Pursuant to 39 CFR 3040.103(d)(1), this Notice of Update to Product Lists identifies any modifications made to the Market Dominant or Competitive product list, including product additions, removals, and transfers. 3 Pursuant to 39 CFR 3040.103(d)(2), the modifications identified in this document result from the Commission's most recent MCS update posted on the Commission's website on January 26, 2024, and supersede all previous product lists. 4

The following list of products is being added to 39 CFR Appendix A to Subpart A of Part 3040—Market Dominant Product List:

The following list of products is being added to 39 CFR Appendix B to Subpart A of Part 3040—Competitive Product List:

The following product from 39 CFR Appendix B to Subpart A of Part 3040—Competitive Product List is being removed:

The following list of products is being removed from 39 CFR Appendix B to Subpart A of Part 3040—Competitive Product List:

The above-referenced changes to the Market Dominant product list and the Competitive product list are incorporated into 39 CFR Appendix A and B to Subpart A of Part 3040.

It is ordered:

1. Part 3040 of title 39, Code of Federal Regulations, is amended as set forth below the signature of this Notice, effective 45 days after the date of publication of the Notice in the Federal Register without further action, unless adverse comments are received.

2. The Secretary shall arrange for publication of the Notice in the Federal Register .

3. Interested persons may submit adverse comments no later than 30 days from the date of the publication of this Notice in the Federal Register .

4. If adverse comments are received, the Secretary will publish a timely withdrawal of the Notice in the Federal Register .

For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:

On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (“the Act”). The Act requires Federal agencies to adjust the level of civil monetary penalties annually for inflation no later than January 15 of each year.

The Office of Management and Budget (OMB) recently issued guidance to assist Federal agencies in implementing the annual adjustments required by the Act which agencies must complete by January 15, 2024. See December 19, 2023, Memorandum for the Heads of Executive Departments and Agencies, from Shalanda D. Young, Director, Office of Management and Budget, re: Implementation of Penalty Inflation Adjustments for 2024, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (M-24-07). The guidance states that the cost-of-living adjustment multiplier for 2024, based on the Consumer Price Index (CPI-U) for the month of October 2023, not seasonally adjusted, is 1.03241.

Annual inflation adjustments are based on the percent change between each published October's CPI-U. In this case, October 2023 CPI-U (307.671)/October 2022 CPI-U (298.012) = 1.03241. The guidance instructs agencies to complete the 2024 annual adjustment by multiplying each applicable penalty by the multiplier, 1.03241, and rounding to the nearest dollar.

The annual adjustment applies to all civil monetary penalties with a dollar amount that are subject to the Act. A civil monetary penalty is any assessment with a dollar amount that is levied for a violation of a Federal civil statute or regulation, and is assessed or enforceable through a civil action in Federal court or an administrative proceeding. A civil monetary penalty does not include a penalty levied for violation of a criminal statute, or fees for services, licenses, permits, or other regulatory review. This final rule adjusts the following civil monetary penalties contained in the Department of the Interior regulations implementing the Native American Graves Protection and Repatriation Act (NAGPRA) for 2024 by multiplying 1.03241 by each penalty amount as updated by the adjustment made in 2023:  1

Consistent with the Act, the adjusted penalty levels for 2024 will take effect immediately upon the effective date of the adjustment. The adjusted penalty levels for 2024 will apply to penalties assessed after that date including, if consistent with agency policy, assessments associated with violations that occurred on or after November 2, 2015. The Act does not, however, change previously assessed penalties that the Department is collecting or has collected. Nor does the Act change an agency's existing statutory authorities to adjust penalties.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

Executive Order 14094 amends Executive Order 12866 and reaffirms the principles of Executive Order 12866 and Executive Order 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and be consistent with Executive Order 12866, Executive Order 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. Executive Order 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The NPS has developed this rule in a manner consistent with these requirements.

The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule. See 5 U.S.C. 603(a) and 604(a). The RFA does not apply to this final rule because the Office of the Secretary is not required to publish a proposed rule for the reasons explained below in Section III.L.

This rule is not a major rule under 5 U.S.C. 804(2), the Congressional Review Act. This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or Tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

This rule does not effect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.

This rule complies with the requirements of E.O. 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. The Department has evaluated this rule under its consultation policy and under the criteria in Executive Order 13175 and has determined that the rule has no substantial direct effects on federally recognized Indian Tribes and that consultation under the Department's Tribal consultation policy is not required.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq) is not required. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of an administrative nature. (For further information see 43 CFR 46.210(i).) We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This rule is not a significant energy action under the definition in Executive Order 13211; the rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and the rule has not otherwise been designated by the Administrator of Office of Information and Regulatory Affairs as a significant energy action. A Statement of Energy Effects is not required.

The Act requires agencies to publish annual inflation adjustments by no later than January 15 of each year, notwithstanding section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). OMB has interpreted this direction to mean that the usual procedure for rulemaking under the APA—which includes public notice of a proposed rule, an opportunity for public comment, and a delay in the effective date of a final rule—is not required when agencies issue regulations to implement the annual adjustments to civil penalties that the Act requires. Accordingly, we are issuing the 2024 annual adjustments as a final rule without prior notice or an opportunity for comment and with an effective date immediately upon publication in the Federal Register .

For the reasons given in the preamble, the Office of the Secretary amends 43 CFR part 10 as follows:

The general effective date for the final rule published September 20, 2022, at 87 FR 57403, which included the addition of 47 CFR 1.60001 through 1.60007, was October 20, 2022. Sections 1.60001 through 1.60007 were delayed indefinitely, and the Commission stated in that rule it would publish a document in the Federal Register announcing the effective date. The document announcing the effective date is published elsewhere in this issue of the Federal Register .

The document makes corrections to §§ 1.60001, 1.60002, 1.60006, and 1.60007.

In FR Doc. 2022-17520 appearing on page 57403 in the Federal Register of Tuesday, September 20, 2022, the following corrections are made:

This document announces that OMB approved the information collection requirements in 47 CFR 1.60001-1.60007 on September 25, 2023, December 5, 2023, and January 18, 2024, respectively. These rule sections were adopted in the Report and Order and Second Further Notice of Proposed Rulemaking, FCC 22-53. The Commission publishes this document as an announcement of the immediate effective date for these revised rules. Published elsewhere in this issue of the Federal Register is a document making corrections to §§ 1.60001, 1.60002, 1.60006, and 1.660007.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received final OMB approvals on September 25, 2023, December 5, 2023, and January 18, 2024, respectively, for the information collection requirements contained in 47 CFR 1.60001-1.60007. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Numbers for the information collection requirements in 47 CFR 1.60001-1.60007 are 3060-0798, 3060-0800, and 3060-1058.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0798.

OMB Approval Date: September 25, 2023.

OMB Expiration Date: September 30, 2026.

Title: FCC Authorization for Radio Service Authorization; Wireless Telecommunications Bureau; Public Safety and Homeland Security Bureau.

Form Number: FCC Form 601.

Respondents: Individual and households, Business or other for-profit entities, state, local, or tribal government, and not for profit institutions.

Estimated Number of Respondents and Responses: 255,552 respondents; 255,552 responses.

Estimated Time per Response: 0.5 to 1.25 hours.

Frequency of Response: Recordkeeping requirement; third party disclosure requirement, on occasion reporting requirement and periodic reporting requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for these collections are contained in 47 U.S.C. 151, 152, 154, 154(i), 155(c), 157, 201, 202, 208, 214, 301, 302a, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 331, 332, 333, 336, 534, 535, and 554 of the Communications Act of 1934.

Estimated Total Annual Burden: 225,808 hours.

Total Annual Cost: $72,474,000.

Needs and Uses: On July 18, 2022, the Commission released a Report and Order and Second Further Notice of Proposed Rulemaking, Partitioning, Disaggregation, and Leasing of Spectrum, WT Docket No. 19-38, FCC 22-53, in which the Commission established the Enhanced Competition Incentive Program (ECIP) to establish incentives for wireless radio service licensees to make underutilized spectrum available to small carriers, Tribal Nations, and entities serving rural areas (ECIP Report and Order in WT Docket No. 19-38, FCC 22-53). In the Report and Order, the Commission adopted a program under which any covered geographic area licensee may offer spectrum to an unaffiliated eligible entity through a partition and/or disaggregation, and any covered geographic area licensee eligible to lease in an included service may offer spectrum to an unaffiliated eligible entity through a long-term leasing arrangement. If the FCC finds that approval of an ECIP eligible assignment or lease is in the public interest, the agency will consent to the transaction and confer benefits, including five-year license term extensions, one year construction extensions, and substituted alternative construction requirements for rural-focused transactions.

In establishing the ECIP, the Commission requires applicants seeking to participate in the program to submit certain information that shows the transaction qualifies for ECIP inclusion. The Commission found that the ECIP builds on Congressional goals in the MOBILE NOW Act to incentivize beneficial transactions in the public interest that will promote greater competition in the provision of wireless services, facilitate increased availability of advanced wireless services in rural areas, facilitate new opportunities for small carriers and Tribal Nations to increase access to spectrum, and bring more advanced wireless service including 5G to underserved communities. The ECIP related change created a new Schedule O, similar to schedule K, that will be used by certain ECIP Licensees to file either their Initial Operation Requirement Notifications (IORN) or their Final Operation Requirement Notifications (FORN), as required by 47 CFR 1.60004, 1.60006.

OMB Control Number: 3060-0800.

OMB Approval Date: December 5, 2023.

OMB Expiration Date: December 31, 2026.

Title: FCC Application for Assignments of Authorization and Transfers of Control: Wireless Telecommunications Bureau and Public Safety and Homeland Security Bureau.

Form Number: FCC Form 603.

Respondents: Business or other for-profit entities, Individuals or households, not-for-profit institutions, and State, Local or Tribal Governments.

Estimated Number of Respondents and Responses: 2,567 respondents; 2,567 responses.

Estimated Time per Response: 0.05 hours-1.80 hours.

Frequency of Response: Recordkeeping requirement, on occasion reporting requirement and periodic reporting requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection is contained in 47 U.S.C. 154, 155, 158, 161, 301, 303(r), 308, 309, 310 and 332.

Estimated Total Annual Burden: 2,957 hours.

Total Annual Cost: $532,728.

Needs and Uses: On July 18, 2022, the Commission adopted the Partition, Disaggregation and Leasing of Spectrum Report and Order and Second Further Notice of Proposed Rulemaking that modifies partitioning, disaggregation, and leasing rules to provide specific incentives for small carriers and Tribal Nations, and entities in rural areas, to voluntarily participate in ECIP (ECIP Report and Order in WT Docket No. 19-38, FCC 22-53). The ECIP proceeding is in response to Congressional direction in the Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act (MOBILE NOW Act) to consider steps to increase the diversity of spectrum access and the availability of advanced telecommunications services in rural areas. The ECIP will promote greater competition in the provision of wireless services, facilitate increased availability of advanced wireless services in rural areas, facilitate new opportunities for small carriers and Tribal Nations to increase access to spectrum, and bring more advanced wireless service including 5G to underserved communities.

In establishing ECIP, the Commission revised its rules to allow partition and/or disaggregation assignment applications pursuant to §  1.950 or full assignments pursuant to §  1.948, to designate a Qualifying Transaction identified in the application as seeking consideration under the ECIP. Respondents are also required to select the applicable ECIP prong to its Qualifying Transaction, pursuant to either §  1.60003 or §  1.60004. Respondents will also certify via attachment to FCC Form 603 for the purpose of certifying compliance with § 1.60002 of the Commission's rules, which requires simply a check box of yes that the applicant selects. This has been approved by non-substantive change request.

OMB Control Number: 3060-1058.

OMB Approval Date: January 18, 2024.

OMB Expiration Date: January 31, 2027.

Title: FCC Application or Notification for Spectrum Leasing Arrangement or Private Commons Arrangement; Wireless Telecommunications Bureau; Public Safety and Homeland Security Bureau.

Form Number: FCC Form 608.

Respondents: Individual and households, Business or other for-profit entities, state, local, or tribal government, and not for profit institutions.

Estimated Number of Respondents and Responses: 1,116 respondents and 1,116 responses.

Estimated Time per Response: 0.05 to 1 hour.

Frequency of Response: Recordkeeping requirement; third party disclosure requirement, on occasion reporting requirement and periodic reporting requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this collection of information is contained in 47 U.S.C. 154, 155, 158, 161, 301, 303(r), 308, 309, 310 and 332.

Estimated Total Annual Burden: 1,135 hours.

Total Annual Cost: $1,443,825.

Needs and Uses: On July 18, 2022, the Commission released a Report and Order and Second Further Notice of Proposed Rulemaking, Partitioning, Disaggregation, and Leasing of Spectrum, WT Docket No. 19-38, FCC 22-53, in which the Commission established the Enhanced Competition Incentive Program (ECIP) to establish incentives for wireless radio service licensees to make underutilized spectrum available to small carriers, Tribal Nations, and entities serving rural areas (ECIP Report and Order in WT Docket No. 19-38, FCC 22-53). In the Report and Order, the Commission adopted a program under which any covered geographic area licensee may offer spectrum to an unaffiliated eligible entity through a partition and/or disaggregation, and any covered geographic area licensee eligible to lease in an included service may offer spectrum to an unaffiliated eligible entity through a long-term leasing arrangement. If the FCC finds that approval of an ECIP eligible assignment or lease is in the public interest, the agency will consent to the transaction and confer benefits, including five-year license term extensions, one year construction extensions, and substituted alternative construction requirements for rural-focused transactions.

In establishing the ECIP, the Commission requires applicants seeking to participate in the program to submit certain information that shows the transaction qualifies for ECIP inclusion. The Commission found that the ECIP builds on Congressional goals in the MOBILE NOW Act to incentivize beneficial transactions in the public interest that will promote greater competition in the provision of wireless services, facilitate increased availability of advanced wireless services in rural areas, facilitate new opportunities for small carriers and Tribal Nations to increase access to spectrum, and bring more advanced wireless service including 5G to underserved communities. Specifically, in the ECIP Report and Order, the Commission revised its rules to allow any covered geographic licenses in included services to be leased to eligible entities through a long-term leasing arrangement.

Specifically, in the ECIP Report and Order, the Commission revised its rules to allow any covered geographic licenses in included services to be leased to eligible entities through a long-term leasing arrangement, to designate a Qualifying Transaction identified in the application as seeking consideration under the ECIP. Two new questions are being added to the FCC Form 608 as a result. Respondents are required to indicate by yes or no answer whether the application is seeking consideration under ECIP. Respondents are also required to select the applicable ECIP prong to its Qualifying Transaction, pursuant to either §  1.60003 or §  1.60004. A certification is also included via attachment to FCC Form 608 for the purpose of certifying compliance with § 1.60002 of the Commission's rules, which requires simply a check box of yes by the applicant. This has been approved by non-substantive change request.

Finally, a new Schedule J is being added to FCC Form 608 and will be used by Spectrum Manager Lessors ( i.e., the Licensee) to file either the Initial Operation Requirement Notifications (IORN) or the Final Operation Requirement Notifications (FORN), as required by 47 CFR 1.60004, 1.60006, on behalf of the Lessee.

DoD published a proposed rule in the Federal Register at 88 FR 25606 on April 27, 2023, to implement section 372(f) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2020 (Pub. L. 116-92). Section 372(f), as implemented at 10 U.S.C. 2387 (previously 10 U.S.C. 2410r), requires DoD contracting officers to include a clause in contracts when contract working dogs are provided under the contract. 10 U.S.C. 2387 requires the transfer of a contract working dog, after the service life of the dog has terminated, to the United States Air Force, 341st Training Squadron. The preamble to the proposed rule contained a detailed description of the treatment and care to be provided for a contract working dog whose service life has terminated and the conditions under which that determination may be made.

Three respondents submitted comments on the proposed rule.

DoD reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments is provided, as follows:

There are no significant changes from the proposed rule.

Comment: Some respondents support the rule.

Response: The support is noted.

Comment: Some respondents voiced concerns that the rule will only apply to contracts at or below the simplified acquisition threshold (SAT).

Response: The rule applies to all contracts for contract working dogs, as defined in 10 U.S.C. 2387(c), including those valued at or below the SAT. Section III of the preamble for the proposed rule provides the legal basis for applying the rule to contracts valued at or below the SAT and for commercial services and products, including commercially available off-the-shelf (COTS) items.

Comment: Some respondents were concerned that a contract working dog would be replaced instead of retired under a service contract, avoiding the termination and transfer of the dog.

Response: DoD generally contracts for a team consisting of the working dog and handler under a service contract. Service contracts include standards of performance for the team. If the team cannot perform to the standard, the contractor is generally expected to replace the team with a team that can perform to the standard. The statute recognizes that the inability to perform to the standard in an individual DoD contract does not mean that a dog has met the conditions for retirement or termination. Specifically, the contract working dog service life would continue if the dog could be utilized on another Federal Government contract, which could have different standards than a DoD contract.

Comment: A respondent expressed concerns that the proposed rule explanation of the impact characterized the need for a contracting officer to make a determination as “rare” because it may be assumed that a dog's service life would never be terminated.

Response: As noted in section IV of the preamble for the proposed rule, DoD does not expect the impact of the rule to be significant because the number of acquisitions that include contract working dogs and handlers are few in number. If the contracting officer's representative or requiring activity identifies a non-performing working dog and handler, an assessment will be conducted by Government experts to determine if the conditions at 10 U.S.C. 2387(b) are met before a recommendation is provided to the contracting officer.

Comment: Some respondents asserted that contract working dogs are paired with military and DoD civilian handlers and that DoD's statement to the contrary, provided in the preamble for the proposed rule, is inaccurate. The respondents refer to DoD Inspector General (DoDIG) report 2018-081, entitled “The Army's Tactical Explosive Detection Dog Disposition Process from 2011 to 2014.”

Response: This rule addresses contract working dogs that are not Government-owned property (see 10 U.S.C. 2387(c)). Contract working dogs addressed by this rule are not paired with military personnel or DoD civilian employee handlers. The respondent's references to DoDIG report 2018-081 seem to indicate a misunderstanding of the difference between a contract working dog and those working dogs procured as Government property under the military working dog and Tactical Explosive Detection Dog (TEDD) programs. The TEDD program authorized the procurement of a working dog and provided that a contractor, rather than the Government, train, house, and care for the dog through certification under the military working dog standards. The Government owned these military working dogs and was responsible for their disposition in accordance with 10 U.S.C. 2583.

Comment: Some respondents requested that the final rule include a penalty for noncompliance.

Response: The statute does not provide a specific penalty for contractor noncompliance; however, contracting officers may use existing contracting regulations to enforce the terms of the contract.

Text at DFARS contract clause 252.237-7027, Transfer and Adoption of Military Animals, is revised for clarity. At DFARS 237.7804, the prescription for the clause is also revised for clarity.

The contract clause at DFARS 252.237-7027, Transfer and Adoption of Military Animals, is prescribed at DFARS 237.7804 for use in solicitations and contracts, including solicitations and contracts using Federal Acquisition Regulation (FAR) part 12 procedures for commercial products and commercial services, that require the services of a contract working dog. Consistent with the analysis that DoD provided in the proposed rule with regard to the application of the requirements of section 372(f) of the NDAA for FY 2020, DoD has made the determination to apply the statute, as implemented in the clause at DFARS 252.237-7027, to contracts at or below the SAT and to the acquisition of commercial services, as defined at FAR 2.101.

DoD does not expect the rule to have a significant impact on the public, because the need for a contracting officer to make a determination that a contract working dog has reached the end of its service life will be rare. Such acquisitions are few in number, and service contractors who provide contract working dogs and handlers are expected to replace dogs and handlers who are unable to perform to DoD standards. A contracting officer's representative (COR) would be responsible for monitoring contract performance and coordinating any replacement dog and handler requirements. If the COR or requiring activity identifies a non-performing working dog and handler, an assessment will be conducted by Government experts to determine if the conditions at 10 U.S.C. 2387(b) are met before a recommendation is provided to the contracting officer for action.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, as amended.

As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules Under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the Federal Register . The Office of Information and Regulatory Affairs has determined that this rule is not a major rule as defined by 5 U.S.C. 804.

A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. and is summarized as follows:

This final rule amends the Defense Federal Acquisition Regulation Supplement (DFARS) to implement 10 U.S.C. 2387, as amended by section 372(f) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2020 (Pub. L. 116-92). Under 10 U.S.C. 2387, DoD contracting officers are required to include a clause in contracts for contract working dog services.

The objective of the rule is to implement the statutory requirements for terminating the service life of a contract working dog, when certain circumstances apply, and transferring the animal to the Department of the Air Force, 341st Training Squadron.

There were no significant issues raised by the public in response to the initial regulatory flexibility analysis.

This rule will apply to small entities providing contract working dog and handler services to DoD. The contract clause is prescribed for use in solicitations and contracts for such services, including those conducted under FAR part 12 procedures for the acquisition of commercial products and commercial services.

Research conducted in the Contract Opportunities section of SAM.gov indicates that contract working dog and handler services are generally procured under North American Industry Classification System codes and product and service codes that provide for certain physical security and law enforcement services. Data obtained from the Federal Procurement Data System (FPDS) for FYs 2019, 2020, and 2021 indicate that DoD awards an average of 227 contract actions annually for these physical security and law enforcement services, which may include a requirement for a contract working dog and handler. Of the estimated 227 awards, an average of approximately 72 awards are made annually to an estimated 52 unique small entities. Neither FPDS nor SAM.gov provide data for the number of awards that are specific to the contract working dog and handler services; however, this analysis assumes all of the estimated awards and unique small entities may be impacted.

The rule does not impose any new reporting, recordkeeping, or compliance requirements.

There are no practical alternatives that will accomplish the objectives of the statute.

This final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 212, 237, and 252 are amended as follows:

This final rule amends the DFARS to make needed editorial changes to add a pointer to DFARS Procedures, Guidance, and Information.

Therefore, 48 CFR part 213 is amended as follows:

This final rule amends the DFARS to make needed editorial changes to update an outdated office name and address at DFARS 245.102 and to correct typographical errors at DFARS 252.223-7009.

Therefore, 48 CFR parts 245 and 252 are amended as follows:

Federal Acquisition Regulation (FAR) subpart 19.12, Small Disadvantaged Business Participation Program, and all references to it, were removed from the FAR on October 14, 2014 (FAR Case 2009-016, 79 FR 61746). This removal followed a Federal court ruling that declared 10 U.S.C. 2323 unconstitutional. FAR subpart 19.12 derived its authority solely from 10 U.S.C. 2323, thus necessitating its removal. While removal from the FAR was made, no conforming changes were made to the General Services Administration Acquisition Regulation (GSAR). Upon routine regulatory review of the GSAR, this discrepancy was observed and removal was determined necessary. This final rule aligns the GSAR with the FAR.

To summarize, GSAR subpart 519.12 is removed and reserved for future use. All mentions of GSAR subpart 519.12 are also removed, as well as corresponding mentions to FAR subpart 19.12 and corresponding clauses, which have been removed from the FAR. Changes made are as follows:

• Removal of GSAR subpart 519.12. Reservation of GSAR subpart 519.12.

• Removal of reference to GSAR subpart 519.12 from the table at 570.101.

• Removal of reference to FAR clauses 52.219-24, 52.219-25, and 52.219-26 listed at 570.701.

• Removal of reference to FAR 19.1202-4(b) from GSAR 570.306.

The statute that applies to the publication of the GSAR is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This rule is not required to be published for public comment because GSA is not issuing a new regulation; rather, this rule is merely removing the Small Disadvantaged Business Program requirements from the GSAR to better align with the FAR for consistency.

Executive Order (E.O.) 12866 (Regulatory Planning and Review) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 14094 (Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in E.O. 12866 and E.O. 13563. The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) has determined that this is not a significant regulatory action and, therefore, is not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

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

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) does not apply to this rule, because an opportunity for public comment is not required to be given for this rule under 41 U.S.C. 1707(a)(1). Accordingly, no regulatory flexibility analysis is required and none has been prepared.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, GSA amends 48 CFR parts 519 and 570 as set forth below:

Why we need to publish a rule. Under the Act, a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become endangered within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the silverspot butterfly meets the Act's definition of a threatened species; therefore, we are listing it as such. Listing a species as an endangered or threatened species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ). We have determined that the designation of critical habitat is not prudent due to the threat of collection.

What this document does. This rule finalizes the listing of the silverspot butterfly as a threatened species with a rule issued under the authority of section 4(d) of the Act (a “4(d) rule”).

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the silverspot butterfly is threatened due to the individual and cumulative effects of habitat loss and fragmentation (Factor A), incompatible livestock grazing (Factor A), human-caused hydrologic alteration (Factor A), genetic isolation (Factor E), and climate change (Factor E).

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary), to the maximum extent prudent and determinable, to designate critical habitat concurrent with listing. We have determined that designating critical habitat is not prudent for the silverspot butterfly at this time, for the reasons discussed below in section III. Critical Habitat.

Please refer to the May 4, 2022, proposed rule (87 FR 26319) to list the silverspot butterfly for a detailed description of previous Federal actions concerning this subspecies.

A species status assessment (SSA) team prepared an SSA report for the silverspot butterfly (hereafter, silverspot). The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the subspecies, including the impacts of past, present, and future factors (both negative and beneficial) affecting the subspecies.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we solicited independent scientific review of the information contained in the silverspot SSA report. We sent the SSA report to four appropriate and independent peer reviewers and received four responses. Results of this structured peer review process can be found at https://www.regulations.gov at Docket No. FWS-R6-ES-2021-0134. We incorporated the results of these reviews, as appropriate, into the SSA report, which is the foundation for the May 4, 2022, proposed rule and this final rule. A summary of the peer review comments and our responses can be found in the “Summary of Public Comments and Recommendations” below.

After consideration of the comments we received during the public comment period on the May 4, 2022, proposed rule (87 FR 26319), we made changes to this final rule. In addition to minor editorial changes, we updated information in this final rule and the SSA report (Service 2023, entire) based on comments and additional information provided, as follows:

First, we incorporated new survey information from 2021 and 2022 for six populations (Garfield, Mesa/Grand, Montrose/San Juan, Ouray, San Miguel/Mora, and Taos) into the SSA report and our evaluation of current and future condition in this final rule. Recent surveys for these populations provided updated information on the number of colonies and habitat acreage. There are now 21 known silverspot colonies grouped into 10 populations, an increase from the 19 colonies reported in the May 4, 2022, proposed rule (the number of silverspot populations has not changed). There are now known to be approximately 714 habitat acres (289 hectares (ha)) within the 10 populations, a slight increase from the 710.5 acres (287.5 ha) reported in the May 4, 2022, proposed rule. This information resulted in changes to resiliency scores identified in tables 1 and 2 of the May 4, 2022, proposed rule, and the current and future resiliency condition categories for three (Garfield, Mesa/Grand, and San Miguel/Mora) of the six populations with new survey information (see Service 2023, pp. 8, 39-48). These changes include both increases and decreases in current and future resiliency scores, depending on the population (see tables 1 and 2, below). This information improves our understanding of the silverspot's status.

Second, we incorporated into the SSA report a change to the categories that we used to evaluate the current status of silverspot populations (extant, likely extant, intermittent, unknown, likely extirpated, extirpated) as shown in the resiliency tables (see Service 2023, pp. 8, 40-47). We no longer consider there to be a relevant distinction between the “intermittent” and “unknown” status categories given the similar levels of uncertainty ascribed to their status. Therefore, we merged the two categories into the “unknown” category, and, as a result, we changed the status of the Garfield and LaPlata populations from intermittent to unknown. This change simplifies and better delineates the status categories for the subspecies and does not affect the scoring of current and future condition.

Third, we updated the range map in the SSA report and removed higher elevation areas. Now, the range map only identifies areas within the elevation range of the silverspot (Service 2023, pp. 16, 18).

Finally, we made the following changes to the preamble discussion and/or regulatory text of the 4(d) rule:

(1) We added an exception for maintenance and operation of existing utility infrastructure within existing rights-of-way (for more information, see “Provisions of the 4(d) Rule” below); and

(2) We made editorial corrections to the wording of certain exceptions in the regulatory text of the 4(d) rule to increase clarity and to better align the language with existing regulations and law. These corrections include revisions such as specifying that a machine blade's height be measured from “above the ground” and that certain excepted activities can occur “year-round.” These editorial corrections do not alter the original meaning of these exceptions.

In the proposed rule published on May 4, 2022 (87 FR 26319), we requested that all interested parties submit written comments on the proposal by July 5, 2022. We also contacted appropriate Federal and State agencies, Tribes, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. On May 3, 2022, we published a press release on our website inviting the public to comment. On May 4, 2022, a newspaper notice inviting general public comment was also published in the Grand Junction Daily Sentinel. We did not receive any requests for a public hearing. All substantive information we received during the comment period has either been incorporated directly into this final determination, has been used to clarify the information in the SSA report, or is addressed below.

As discussed in “Peer Review” above, we received comments from four peer reviewers on the draft SSA report. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the contents of the SSA report. Peer reviewer comments are addressed in the following summary. As discussed above, because we conducted this peer review prior to the publication of our proposed rule, we had already incorporated all applicable peer review comments into version 1.0 of the SSA report, which was the foundation for the proposed rule and this final rule. The four peer reviewers provided additional information, clarifications, and recommendations that we have either incorporated into the SSA report or address below. We received a few comments on recovery efforts for the silverspot. We note these for future reference in recovery planning but do not respond here because they are outside the scope of this rulemaking.

(1) Comment: One reviewer recommended including more discussion in the SSA report about the results of a recent genetic study (Cong et al. 2019, entire) regarding the timing of introgression (also known as introgressive hybridization, the transfer of genetic material between species following hybridization by repeated backcrossing of an interspecific hybrid with one of its parent species) between the silverspot and other species or subspecies, and how populations became introgressed. The reviewer also recommended that we evaluate introgression as a future threat to the silverspot if this would result in the loss of the subspecies' conservation value.

Our response: We did not add more discussion on this topic to the SSA report because the document already has a summary of the genetic variation and introgression results from the recent genetic study referenced by the reviewer (Cong et al. 2019, entire). In the SSA report, we refer to introgression as hybridization that resulted in hybrid segregates or intermediate hybrids with various levels of genetic mixing between Speyeria nokomis nokomis, S. n. apacheana, and S. n. nitocris (Service 2023, pp. 13-14). We also stated that various levels of hybridization occurred historically between the silverspot and other subspecies, but that hybridization declined under warmer, drier climate conditions since the last ice age as the subspecies became isolated from each other. There is evidence of isolation between the silverspot and the other subspecies or hybrids that has persisted for centuries (over the last few hundred years or longer). We also identify genetic isolation as a threat to the silverspot based on the distances between known populations (see Factors Influencing Subspecies Viability, below). Given the low likelihood of current or future hybridization, we do not consider hybridization to be a threat to the silverspot.

(2) Comment: One reviewer stated their concern with the current distribution description in the SSA report and the treatment of known sites as somewhat fixed in both space and time. The reviewer felt that the presence of undiscovered colonies within each population could have important consequences for colony persistence by augmenting known populations both demographically and genetically, thereby increasing resilience. The reviewer noted there is documentation of this in one Great Basin Speyeria n. apacheana colony (Britten et al. 2003, entire). The reviewer suggested that some discussion of this possibility and a description of systematic efforts that have been made to find additional colonies within the subspecies' range (as shown on the SSA report's range map) should be included.

Our response: We acknowledge that species can shift their ranges over space and time. The range map in the SSA report (Service 2023, p. 18) is based on the best available information at the time it was created, and we will update the SSA report and range map as new information becomes available for the subspecies. We also characterize the importance of colonies for population persistence, demographics, and genetics in the SSA report (Service 2023, pp. 17, 23-26, 35-36). The demographic and genetic benefits of connectivity between known colonies would apply to undiscovered colonies, and we added this statement to the SSA report (Service 2023, p. 35). We are not able to disclose details or results of systematic survey efforts and colony locations due to the threat of collection; however, we have surveyed, and will continue to survey, historical locations and potential habitat to determine the presence or absence of the silverspot.

(3) Comment: One reviewer agreed with the definition of the silverspot's occupied habitat, the individual site descriptions presented in the SSA report, and how current and past habitat patches have changed through time. However, the reviewer noted that the SSA report does not include implications of the long-term dynamics of habitat quality and dispersion. The reviewer thought a more in-depth analysis of the dynamic nature of the butterfly's habitat and population fluctuations would be helpful to the long-term persistence of the subspecies even if it is based on educated opinion. The reviewer stated that there is enough information to at least speculate on the potential for the silverspot to follow its habitat, or find newly formed habitat, as climate change and other perturbations alter the current distribution of its habitat. The reviewer wondered if there are places within the current distribution where butterfly colonies could move upslope as the current habitat becomes unsuitable due to warming. A second reviewer stated that climate change could cause small elevation shifts in silverspot colonies.

Our response: Currently, we do not have sufficient information to make a reliable or well-informed projection of the silverspot's ability to find newly formed habitat or occupy higher elevation habitat if climate change or habitat loss and fragmentation alter its current distribution. We lack detailed information on the locations of bog violet populations across the range and in higher elevations. One species expert stated that the silverspot was not likely to move upslope in a warmer/drier climate unless habitat is continuous and the bog violet already occurs there (Ellis 2020b, pers. comm.; Service 2023, p. 50). We will develop a recovery plan and recovery actions for the silverspot to improve our understanding of the silverspot and perhaps its ability to occupy higher elevation habitats.

(4) Comment: One reviewer recommended referring to a silverspot population as a metapopulation because colonies connected by demographic and genetic exchange are better described as metapopulations.

Our response: We use the term metapopulation when discussing silverspot populations with more than one colony. However, in the SSA report, we continue to use the term population in general, because there are also many single colony silverspot populations, and it is a standard term we use to describe the groupings of silverspots we used in our analysis of resiliency and viability.

(5) Comment: One reviewer supported the subspecies delineation presented in the recent genetic study (Cong et al. 2019, entire) and the SSA report. However, the reviewer noted that while the genetic study uses strong methods, it has not been peer-reviewed and lacks some details about methods and analyses. The reviewer recommended a discussion in the SSA report about the level of confidence in the results and why we identify 10 major populations for the genus, Speyeria. Their interpretation of the results was that a delineation of 13 populations was better supported than the 10 populations we state in the SSA report.

Our response: We report the results and conclusions of the draft genetic study (Cong et al. 2019, entire) in the SSA report because the draft genetic study provides the best available information on the genetics of the silverspot and the other Speyeria nokomis subspecies. We are confident in the results of the draft study because of the researchers' genetic expertise despite the fact that the study has not been peer-reviewed. We will update the SSA report as needed to reflect major changes, if any, once the genetic study is published.

(6) Comment: One reviewer stated that the SSA report does not include published reports of Speyeria nokomis apacheana to their full potential. The reviewer noted that the ecology and life history of S. n. nokomis and S. n. apacheana are similar and suggested that S. n. apacheana should serve as a good surrogate for S. n. nokomis where data are lacking. The reviewer noted that two reports document gene flow among S. n. apacheana colonies that may mitigate the effects of genetic drift (the loss of alleles (version of a gene) or change in their frequency in a population) on colony genetic diversity (Britten et al. 1994, entire; Britten 2003, entire). The reviewer noted that S. n. apacheana also experiences high levels of colony turnover and routinely disperses about 4 kilometers (about 2.5 miles) from natal (birth) sites based on years of mark/recapture studies at several locations in Nevada (Fleishman et al. 2002, entire). The reviewer noted that the SSA report concluded that about 10 miles is a good estimate of S. n. nokomis dispersal distance but questioned whether estimates of the silverspot's viability would differ if shorter dispersal distances, closer to those of S. n. apacheana, were applied in the SSA report.

Our response: In the SSA report, we evaluate connectivity between silverspot populations based on their estimated long-distance dispersal ability of 5 to 10 miles (Ellis 2020c, 2020d, 2020e, pers. comm.) and the potential for longer term gene flow between colonies within a 20-mile distance based on the recent genetic study (Cong et al. 2019, entire). Taken together, these distances characterize the potential for gene flow and population connectivity over short-term and long-term timeframes and provide a more appropriate evaluation of gene flow than the annual dispersal distances for the silverspot and Speyeria nokomis apacheana. Therefore, we did not change the metrics we used to evaluate resiliency, although we note that the shorter, annual dispersal distances the reviewer mentions would receive the highest score for genetic connectivity in our analysis because those distances allow for a high level of genetic interchange and maintenance of a metapopulation structure.

(7) Comment: One reviewer stated that collecting has never been shown to cause the extirpation of an insect population or species because it is a density-independent factor.

Our response: The reviewer did not provide information to support their comment. Many of the silverspot populations are small and currently in low resiliency condition, and therefore could be easily extirpated if collection pressure increased. The best available information indicates that poaching of rare and imperiled taxa for profit does occur, even to the point of driving a species to extinction to increase the value of individual specimens (Kleiner 1995, entire; Hoekwater 1997, entire; Courchamp et al. 2006, entire; O'Neill 2007, entire; Stratton 2012, entire).

(8) Comment: One reviewer stated that changes in water management are the most likely immediate threat to silverspot populations based on the decline of other S. nokomis subspecies' colonies from the capping of springs and water diversions.

Our response: We consider hydrologic alteration to be a major factor affecting the subspecies (see Factors Influencing Subspecies Viability, below). We recognize that water management can result in the loss or alteration of silverspot habitat, and that extensive hydrologic alteration has occurred within the range of the silverspot for agricultural, commercial, and municipal purposes. The reviewer did not recommend any changes to our analysis, and we accounted for water management practices and hydrologic alteration of silverspot habitat in the habitat factor score for current and future condition (see Summary of Biological Status and Threats, below).

(9) Comment: One reviewer stated that some colonies may require management, such as light grazing or mowing, to maintain habitat suitability. For example, the Speyeria nokomis apacheana population in Round Valley (Inyo County, California) has persisted at least over the past 70 years under a regime of light grazing. Conversely, the reviewer noted that heavy park-like mowing of the Mono County Park near Mono Lake, California, caused the extirpation of a small colony.

Our response: We agree that light grazing or mowing in addition to other occasional disturbances, such as burning or non-catastrophic flooding, are needed to maintain suitable habitat conditions for the silverspot. We identify some of these practices as exceptions to the take prohibitions under the 4(d) rule (see “Provisions of the 4(d) rule” below). We intend to work with landowners or managers to provide occasional disturbance or even light annual disturbance that is compatible with conserving the silverspot and the bog violet.

(10) Comment: A reviewer stated that the current common name for the species is Nokomis Fritillary according to the North American Butterfly Association (NABA) Common Names List, which is the recognized source for North American butterfly species. However, the reviewer noted that there is no recognized source for subspecies' common names.

Our response: We state that Nokomis Fritillary is the accepted common name for the species, Speyeria nokomis, in the SSA report (Service 2023, appendix C, p. 80). We refer to the subspecies that is the subject of this document, S. n. nokomis, as the silverspot to distinguish it from the other Nokomis Fritillary subspecies and to minimize public confusion once it is listed under the Act. Prior to the recent genetic study (Cong et al. 2019, entire), which clarified the range of the subspecies, we referred to the silverspot butterfly as the Great Basin silverspot butterfly, a common name that is no longer applicable (see 87 FR 26319, May 4, 2022, p. 26322). We will report updates to its common name and taxonomy, if needed, in the SSA report and future 5-year status reviews to be consistent with the accepted taxonomic nomenclature. We note in the SSA report that the silverspot and other members of the Nokomis genus may be assigned to a different genus ( Argynnis ) soon (Service 2023, p. 13). This change in genus would likely not affect the silverspot's listing status under the Act.

(11) Comment: The Utah Public Lands Policy Coordination Office (PLPCO) of the Utah Governor's Office stated that they advocate for silverspot conservation and are available to assist in the development of a conservation strategy for the subspecies. They expressed that the most effective conservation strategy is to coordinate with State agencies, local governments, and landowners because the silverspot is mostly on private lands. The PLPCO also supported our determination that the designation of critical habitat is not prudent for the silverspot.

Our response: We welcome participation by the PLPCO and any stakeholder or landowner to provide conservation for the silverspot through the development of a conservation strategy or other means. We agree that State and local support will be critical to the recovery and successful management of the silverspot.

(12) Comment: The PLPCO expressed that managed grazing, burning, mowing, and non-catastrophic flooding are necessary to remove harmful and invasive vegetation to benefit the silverspot and its host plants. They suggested that lack of grazing could lead to population extinction of the silverspot based on a published study from another endangered butterfly, the Quino checkerspot (Preston et al. 2012, entire).

Our response: The SSA report (Service 2023, entire), proposed rule (87 FR 26319; May 4, 2022), and this final rule state that managed grazing, burning, mowing, and non-catastrophic flooding can benefit the silverspot. Livestock grazing that is done in a manner consistent with local ecological conditions, including soil types, precipitation zones, vegetation composition, and drought conditions, to provide early seral or more open conditions for the bog violet can be compatible with the needs and conservation of the silverspot. For more information, see the discussions under “Summary of Biological Status and Threats” and “Beneficial Factors” below. We also recognize that maintenance of sustainable grazing practices on private lands can aid in recovery of the silverspot by discouraging further conversion of the species' habitat into habitat unsuitable to the species ( i.e., due to development).

We reviewed the Preston et al. 2012 paper, and it does not state that lack of grazing resulted in the extinction or extirpation of the Quino checkerspot ( Euphydryas editha quino ), which is currently listed as endangered under the Act. However, the paper did reference another article (Weiss 1999, entire) related to beneficial grazing practices to suppress nonnative plants in butterfly populations. We have incorporated this article into the SSA report (Service 2023, p. 38).

(13) Comment: The New Mexico Department of Agriculture (NMDA) and others expressed concern that the range map of the silverspot in the SSA report (Service 2021, p. 12) is overly broad relative to the small amount of known, occupied habitat, and includes elevations much higher than the upper elevation for the butterfly. The NMDA recommended the use of range delineation methods from a published article (Burgman and Fox 2003, entire) to refine the subspecies' range. Another commenter suggested the range map in the 2021 SSA report is an example of a flawed habitat model that could be corrected with a more detailed discussion of why the area is thought to be suitable, and the commenter provided a definition of wildlife habitat to improve how we define habitat in the proposed rule. Both commenters expressed the need for comprehensive surveys and improvements to the habitat model to better define suitable, occupied habitat, and the silverspot's range, to reduce unnecessary regulatory burden.

Our response: We have updated the range map in the SSA report and removed higher elevation areas to address the comment. Now, the range map in the SSA report identifies only areas within the known elevation range of the silverspot (Service 2023, p. 18). The range map provides an intentionally broad delineation of the current extent of the silverspot's range to protect the exact locations of colonies and should not be used or considered as a habitat model for the subspecies. We acknowledge that most of the lands identified in the range map are not suitable habitat for the silverspot; the subspecies is a habitat specialist with very specific habitat needs.

We do not have a habitat model for the silverspot; however, when this rule is effective (see DATES , above), we intend to develop one using the best available habitat information and methods used by the Service, which are consistent with those recommended in the published paper recommended by the commenter (Burgman and Fox 2003, entire) (see Service 2019, entire). Once developed, the suitable habitat model will inform the need for surveys, and additional surveys would better delineate occupied habitat, suitable habitat, and the current range of the subspecies.

(14) Comment: The NMDA and others requested time to implement proactive conservation and education in cooperation with private landowners, Federal land managers, and lessees prior to a final listing determination for the silverspot. They state that there are beneficial management practices for the silverspot that have yet to be implemented.

Our response: The commenters are correct that beneficial management practices have not been implemented for the silverspot, and we welcome participation by States, counties, landowners, or other stakeholders to implement conservation and recovery efforts for the subspecies. Under the Act, we must list a species or subspecies if it meets the definition of an endangered species or a threatened species. Moreover, our policy for the evaluation of conservation efforts when making listing decisions (PECE policy; 68 FR 15100, March 28, 2003) identifies criteria we use in determining whether formalized conservation efforts that have yet to be implemented or to show effectiveness contribute to making listing a species as endangered or threatened unnecessary. The PECE policy applies to conservation efforts identified in conservation agreements, conservation plans, management plans, or similar documents developed by Federal agencies, State and local governments, Tribal governments, businesses, organizations, and individuals. For the silverspot, there were no formalized conservation efforts that had yet to be implemented prior to this final rule for us to consider under the PECE policy.

(15) Comment: The NMDA expressed that the 4(d) rule should ensure that private landowners and public land managers will not be exposed to risk of take of the silverspot for their normal agricultural activities in wet meadows that do not contain the silverspot within its range. They recommend the 4(d) rule clarify that take of the silverspot from habitat modification only applies to areas where the silverspot is found (known colonies) and requested that we modify the specific take prohibition in the 4(d) rule to reflect that.

Our response: Under 50 CFR 17.31(c), for a species listed as a threatened species, the species-specific 4(d) rule will contain all the applicable prohibitions and exceptions. On the effective date of this rule (see DATES above), the protections of the Act provided for in the 4(d) rule for the silverspot will apply to the subspecies wherever it is found. We acknowledge that there is uncertainty about the extent of suitable habitat within the silverspot's range, and thus it would be premature to except take prohibitions for actions in suitable habitats where occupancy is unknown until adequate surveys for the butterfly are conducted. In the 4(d) rule, we provide exceptions for take for common agricultural practices in wet meadow habitats (see “Provisions of the 4(d) Rule” below). Additionally, if anyone has concerns about specific agricultural practices in wet meadow habitats that are not identified as exceptions in the 4(d) rule, we welcome those discussions and will provide information (see FOR FURTHER INFORMATION CONTACT above). Therefore, we have not made any changes to the 4(d) rule in response to this comment.

(16) Comment: The NMDA and others recommended developing an outreach strategy and materials for private landowners and local entities to provide them information on the listing of the silverspot, the subspecies' 4(d) rule, and beneficial conservation actions for the subspecies (such as protecting bog violets and planting beneficial nectar plants).

Our response: As part of our outreach efforts, we intend to contact landowners of known occupied habitat and discuss the silverspot's listing and 4(d) rule, as well as beneficial conservation actions for the subspecies. We welcome the assistance of the commenters, State and Federal agencies, Tribes, nongovernmental organizations, and other interested parties with outreach and implementation of conservation and recovery actions.

(17) Comment: One commenter expressed opposition to listing the silverspot under the Act because the reasons for population declines are lacking and several of the factors influencing viability in the SSA report are either not detectable or are unknown. Without an understanding of what is causing the presumed population decline, the commenter thought it will be nearly impossible to develop a viable recovery plan.

Our response: We summarize the threats to the silverspot in this final rule (see “Summary of Biological Status and Threats” below). While we acknowledge that there are gaps in our understanding of the subspecies, listing under the Act will confer protections to the silverspot from several of the identified threats to help arrest and reverse its decline. When this rule is effective (see DATES above), actions authorized, funded, or carried out by Federal agencies that may affect the subspecies will require consultations under section 7 of the Act in all occupied areas. Prohibitions against take under section 9 of the Act will further protect the silverspot from human-caused mortality such as continued habitat loss.

The Act requires us to develop recovery plans for all listed species, unless such a plan will not promote the conservation of the species. Recovery plans must, to the maximum extent practicable, contain objective, measurable criteria that, when met, would lead to “delisting,” that is, removal of the species from the Lists of Endangered and Threatened Wildlife and Plants. These recovery plans are created following a final determination to list a species as endangered or threatened. Recovery plans are non-binding documents intended to provide a roadmap for us and our partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery. Recovery criteria and objectives are developed based on the information known at that time, and much is learned about a species between the time the recovery plan is developed and the time it is determined to no longer meet the Act's definition of endangered or threatened.

(18) Comment: One commenter stated that utility corridors maintain or create open, early successional areas that support the silverspot's needs, and requested that the proposed exception for maintenance of other existing structures in the 4(d) rule apply to many common electric company operation, maintenance, and modernization (OMM) activities that are essentially maintenance of other existing structures. The commenter felt that the additional requirement in the 4(d) rule for those activities to be kept within the confines of already disturbed ground was unclear and, depending on how it is interpreted and applied in practice, could significantly limit many OMM activities. For example, transmission lines often span long distances of relatively undisturbed vegetation between the support towers or poles. However, electric companies regularly need to conduct OMM activities along transmission line rights-of-way (ROWs) in the space between towers or poles. The commenter requested the scope of this exception be clarified to include OMM activities along entire transmission line ROWs rather than limited to previously disturbed areas centered on support towers or poles.

Our response: Maintenance and operation activities and vegetation removal along existing transmission line and utility corridors are not major factors influencing the silverspot and are not known to negatively affect the subspecies (Service 2023, pp. 28-38). Therefore, in this final rule, we add to the silverspot's 4(d) rule an exception to the take prohibitions for these activities if the activities are kept within the confines of existing ROWs. This does not remove the requirement for section 7 consultation and appropriate permitting processes. Importantly, construction of new transmission lines and utility corridors is not an excepted activity under the 4(d) rule.

(19) Comment: One commenter requested that we revise one aspect of the definition of “reasonable care” in the silverspot's 4(d) rule. The commenter asked that instead of “ensuring no introduction of” invasive plant species, we revise the 4(d) rule to read, “minimizing the potential to introduce” invasive plant species.

Our response: We agree with the commenter that reasonable care to control for invasive plant species should be to minimize their potential introduction rather than ensure no introduction. We used language in the proposed 4(d) rule that was stricter than we intended, and because it is not feasible to ensure no introduction of invasive plant species, in this final rule, we clarify that statement in the 4(d) rule in accordance with the commenter's suggestion.

(20) Comment: One commenter requested listing the silverspot as endangered or alternatively strengthening the 4(d) rule. They also recommended designating critical habitat. Their reasons are explained in greater detail below:

a. List as endangered: The commenter stated that the silverspot faces immediate extinction and climate change should be considered a major factor, rather than a minor factor, as it has significant impacts to the subspecies' viability as defined in the SSA report. Most silverspot populations face very low or low resiliency conditions and possess little to no ability to respond to and recover from disturbances and the negative effects of climate change, such as earlier springs, rising temperatures, less snowpack, and soil-moisture drought. The commenter felt that the proposed rule provided no analysis or evidence that these very low resiliency populations are currently not at risk of extirpation. The commenter suggested that the imminent threat of losing half of the silverspot's populations should make the subspecies in danger of extinction throughout a significant portion of its range, thus warranting an endangered listing. The commenter stated that the loss of these populations may occur in 5 years, not the 30 years identified as the foreseeable future.

b. Strengthen the 4(d) rule: Alternatively, the commenter requested that we develop a more protective 4(d) rule that does not permit year-round grazing, because it is not scientifically supported and not enforceable. The commenter felt that the proposed 4(d) rule gave disproportionate weight to inconclusive possible benefits of grazing in need of further study over the more conclusive studies establishing grazing's detrimental effects to the silverspot's habitat. They recommend that the final 4(d) rule should not allow summer grazing, to provide for adequate protection and enforcement.

c. Designate critical habitat: The commenter requested that we designate critical habitat for the silverspot because the benefit of designation outweighs the threat of collection. As stated in the SSA report, collection is not thought to be a current stressor, and designation can be done without disclosing silverspot locations. The commenter stated that without credible information regarding actual collection risk, designating critical habitat is prudent and necessary to conserve the silverspot.

Our response: Climate change is occurring, and there is strong scientific support for projections that warming will continue through the 21st century (see “Climate Change” under Factors Influencing Subspecies Viability, below). However, to date, there is only one small silverspot population (Archuleta) of the 10 total populations where prolonged drought combined with overgrazing is identified as a potential contributor to the population's very low resiliency rank based on the best available information (Whiteman 2022, pers. comm.; Service 2023, pp. 30, 40-41, 57-60). The other nine populations currently appear to have an adequate water supply despite existing hydrologic alterations, recent droughts, and drier, current climate conditions (Bainbridge and Ireland 2022, pers. comm; Service 2023, p. 30). While current water availability is not a concern, we are concerned about future climate effects to the silverspot in combination with other threats, and we determined that the subspecies meets the Act's definition of a threatened species. For additional explanation as to why the species does not meet the Act's definition of an endangered species throughout all or a significant portion of its range, see “Summary of Biological Status and Threats and Determination of Silverspot's Status” below.

We find that the 4(d) rule exception for grazing is scientifically supported and enforceable. The exception for grazing is based on the best available scientific information that light summer grazing (30 percent or less utilization of forage) and moderate fall and spring grazing (40 to 50 percent utilization) appears to be compatible with the subspecies' needs and habitat requirements (Arnold 1989, entire; Service 2023, pp. 33-34). In practice, little summer grazing occurs in silverspot habitat because many landowners move their cattle to higher elevations with more seasonal forage (Service 2023, p. 33). While livestock grazing under this exception may result in low levels of take, these grazing practices do not pose a threat to the silverspot's continued existence and should help maintain suitable habitat conditions for the subspecies. Additionally, we consider the utilization rates for seasonal grazing to provide enforceable and objective grazing measurements. We find that the 4(d) rule provides flexibility to our partners and satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the silverspot. When this rule is effective (see DATES above), we will work with private landowners, public land managers, Tribes, and grazing experts to maintain or improve silverspot habitat using seasonal grazing practices.

Finally, the demand for butterflies is high by collectors in the illegal animal trade, and the best available information indicates that collection may have resulted in the extirpation of one silverspot colony (Scott 2023, pers. comm.; Service 2023, p. 31). We believe that the public has been largely unaware of the subspecies and that listing under the Act will raise public awareness and result in a greater demand from collectors. We determine in this final rule that the designation of critical habitat is not prudent in accordance with 50 CFR 424.12(a)(1), because the silverspot faces a threat of unauthorized collection and trade, and designation can reasonably be expected to increase the degree of this threat to the subspecies. We have determined that the publication of maps and descriptions outlining the locations of the silverspot would further facilitate unauthorized collection and trade, as collectors would know the exact locations where silverspots occur (see section III. Critical Habitat below).

For the reasons explained above, we are not making any changes to this final rule in response to this comment.

(21) Comment: Some commenters opposed listing the silverspot and stated that the Act does not work for insects and other species that cannot accurately be identified. Commenters felt that the silverspot's definition and description in the proposed rule was highly ambiguous and the SSA report identified almost every color as a characteristic of the subspecies. They are concerned about the ability to accurately count and distinguish the silverspot from other subspecies with ranges that overlap and from potential hybrids that may result from reproduction between the silverspot and other subspecies; they are also concerned about the environmental factors that may impact the silverspot's characteristics. The commenters felt that the Service's inability to clearly identify the silverspot will lead to public confusion, an erosion of public support, and the assumption that any butterfly or moth in the silverspot's range would be treated as a listed species. The inability to accurately describe the species falls into the category of intrinsic uncertainty as defined by a published paper they provided and may not be resolvable (Freckleton 2020, entire). The commenters requested to know what has changed since our previous determinations that suggested the silverspot was not a listable entity.

Our response: We understand the commenters' questions and uncertainty regarding identification and taxonomy. We disagree with the comment that the subspecies is not well defined or described, or that there is intrinsic uncertainty regarding the taxonomy that cannot be resolved. A recent genetic study identified the silverspot as a distinct taxon, and we have delineated the subspecies' range based on that report (Cong et al. 2019, entire) (see “Background” under section I. Final Listing Determination below). The silverspot and its habitat can be identified accurately by experts or with training, in the field or with close-up photographs. There is always the potential for hybridization to occur at the margins of a species' range or areas of overlapping ranges with other species or subspecies. However, there is a low likelihood of interbreeding to produce hybrid butterflies within the silverspot's range (Service 2023, pp. 1-14). Any potential hybrids can be confirmed through additional genetic analysis, and we will address methods to count and estimate butterfly numbers during the recovery planning process.

Our determination in 1996 that removed the designation of the silverspot as a category 2 candidate was not related to taxonomy; rather, we discontinued the practice of maintaining a list of species regarded as category 2 candidates (see 61 FR 7596, February 28, 1996; see also “Previous Federal Actions” in the May 4, 2022, proposed rule (87 FR 26319)). Category 2 candidate species were taxa for which we lacked conclusive data on biological vulnerability and threats. By 2013, we had more information on the silverspot to evaluate its status and threats in response to a petition submitted to us by Wild Earth Guardians.

(22) Comment: Commenters asked about the status of potential silverspot hybrids under the Act.

Our response: We address hybrids on a case-by-case basis under the Act, and in this case, we did not propose to list hybrids of the silverspot because as we describe above in our response to Comment (1), there is a low likelihood of finding hybrid butterflies in the silverspot's range in the future because the various subspecies of S. nokomis are isolated from one another.

(23) Comment: Some commenters felt that the Service made an arbitrary decision when we determined that habitat fragmentation is a threat to the silverspot, while pesticide usage is not. The best available science for other insect species such as the monarch butterfly ( Danaus plexippus ) identifies pesticide use as a significant component of activities that cause habitat fragmentation ( e.g., agriculture and haying). Commenters also stated that it was not clear whether we evaluated habitat fragmentation across the entire range or only in known, occupied habitat.

Our response: The hypothesis that pesticides are a major threat to the silverspot presented in this comment appears to be based solely on the commenters' evaluation of threats identified for other species. No methods or data are given or cited for pesticide use and effects on the silverspot or similar species in the arid western United States. Evidence in support of such a hypothesis would need to be provided for further consideration. We do not discuss pesticides in the May 4, 2022, proposed rule or this final rule because our evaluation in the SSA report identified it as a minor factor influencing the current and future condition of the silverspot (Service 2023, pp. 27-28, 32). The primary agricultural practices in the silverspot's range are haying and grazing that generally use fewer pesticides than are used on croplands. However, we state in the SSA report that further research is needed on pesticide use and its effects on the subspecies.

Based on the best available information, habitat loss and fragmentation are primary threats to the silverspot in occupied habitat and across the range (see Factors Influencing Subspecies Viability, below). Nearly all populations have been or are expected to be negatively affected by this threat, which has resulted in lower current and future population resiliency and connectivity.

(24) Comment: Commenters expressed concern that there would be significant restrictions placed on recreation as a result of listing the silverspot, even though the proposed rule identifies recreation as a minimal threat to the silverspot. The commenters were familiar with listing decisions for other species (wolverine ( Gulo gulo luscus ) and Mexican spotted owl ( Strix occidentalis lucida )) where the Service explicitly and clearly states that recreation is not a threat, but other agencies placed significant restrictions on recreation because of the potential for habitat fragmentation.

Our response: The silverspot primarily occurs on private lands (18 of the 21 colonies), where recreation does not occur. Occupied habitat on public lands also currently appears to have minimal recreational use, and we are not aware of plans that may increase the level of future recreational use in these areas. However, recreation could pose a threat to the silverspot if trails or other recreational facilities are planned in the future within the butterfly's habitat that may result in habitat loss or degradation, invasive plant establishment, changes to the water regime, or erosion.

Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify its critical habitat. When this rule is effective (see DATES above), Federal agencies will be required to consult with us on the potential effects to the silverspot for all proposed projects, including recreation projects, that are subject to the requirements of section 7(a)(2) of the Act. For proposed projects without a Federal nexus, the proponent must ensure that the project will not result in take of the silverspot as set forth in the 4(d) rule. We will cooperate with Federal agencies, landowners, and project proponents to identify conservation measures that avoid or minimize effects and take of the silverspot during project planning.

A thorough review of the taxonomy, life history, and ecology of the silverspot is presented in the SSA report (Service 2023, pp. 9-27), and is briefly summarized here.

The silverspot is a relatively large butterfly with up to a 3-inch wingspan. Males typically have bright orange on the upper side of the wing, while females typically have cream or light yellow with brown or black. The underside of the wing of both sexes has silvery-white spots, giving the subspecies' the common name of silverspot butterfly.

Based on recent genetic analysis, there are 10 major populations of Speyeria nokomis comprised of five subspecies throughout the United States and Mexico (Cong et al. 2019, entire). We established a new, more precise range boundary for the subspecies that is the subject of this document, the silverspot ( S. n. nokomis ), in the SSA report based on the genetic analysis, which limits the distribution to east-central Utah through western and south-central Colorado and into north-central New Mexico (Service 2023, p. 18). The new range delineation shows that the subspecies does not occur in the Great Basin and thus the former common name, Great Basin silverspot butterfly, is no longer valid. Consequently, we refer to the S. n. nokomis subspecies as “silverspot” in this final rule.

In the SSA report, we identified 10 populations of silverspot in our analysis, consisting of the following: Archuleta, Conejos, Costilla, Garfield, La Plata, Mesa/Grand, Montrose/San Juan, and Ouray populations in Colorado and Utah; and the San Miguel/Mora and Taos populations in New Mexico (Service 2023, figure 14 and table 4, pp. 39-47). Populations of silverspot occur between 5,200 feet (ft) (1,585 meters (m)) and 8,300 ft (2,530 m). The butterfly requires moist habitats in mostly open meadows with a variety of herbaceous and woody vegetation. Eggs are laid on or near the bog violet ( Viola nephrophylla / V. sororia var. affinis ), which the larvae feed on exclusively. A variety of flowering plants provide adult nectar sources. The butterfly completes its entire life cycle in one year.

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for endangered and threatened species. In 2019, jointly with the National Marine Fisheries Service, the Service issued a final rule that revised the regulations in 50 CFR part 424 regarding how we add, remove, and reclassify endangered and threatened species and the criteria for designating listed species' critical habitat (84 FR 45020; August 27, 2019). On the same day, we issued a finalrule that revised 50 CFR 17.31 and 17.71(84 FR 44753; hereinafter, “the 20194(d) rule”) and ended the “blanket rule” option for application of section 9prohibitions to species newly listed as threatened after the effective date ofthose regulatory revisions (September 26, 2019). Blanket rules hadextended the majority of the protections (all of the prohibitions that apply to endangered species under section 9 and additional exceptions to the prohibitions) to threatened species, unless we issued an alternative rule under section 4(d) of the Act for a particular species ( i.e., a species-specific 4(d) rule).The blanket rule protectionscontinued to apply to threatened speciesthat were listed prior to September 26,2019, without an associated species-specificrule. Under the 2019 4(d) rule,the only way to apply protections to aspecies newly listed as threatened is forus to issue a species-specific rule settingout the protective regulations that areappropriate for that species.

Our analysis for this decision applied our current regulations, portions of which were last revised in 2019. Given that we proposed further revisions to these regulations on June 22, 2023 (88 FR 40742; 88 FR 40764), we have also undertaken an analysis of whether the decision would be different if we were to apply those proposed revisions. We concluded that the decision would have been the sameif we had applied the proposed 2023 regulations. The analyses under both the regulations currently in effect and the regulations after incorporating the June 22, 2023, proposed revisions are included in our decision file.

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

• Factor A—The present or threatened destruction, modification, or curtailment of its habitat or range;

• Factor B—Overutilization for commercial, recreational, scientific, or educational purposes;

• Factor C—Disease or predation;

• Factor D—The inadequacy of existing regulatory mechanisms; or

• Factor E—Other natural or manmade factors affecting its continued existence.

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

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

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

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

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

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

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

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual subspecies' life-history needs. The next stage involved an assessment of the historical and current condition of the subspecies' demographics and habitat characteristics, including an explanation of how the subspecies arrived at its current condition. The final stage of the SSA report involved making predictions about the subspecies' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species (or in this case, subspecies, which is a listable entity under the Act) to sustain populations in the wild over time. We use this information to inform our regulatory decision. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R6-ES-2021-0134 on https://www.regulations.gov.

In this discussion, we review the biological condition of the silverspot and its resources, and the threats that influence the subspecies' current and future condition, to assess the subspecies' overall viability and the risks to that viability.

Individual silverspot needs include wet meadows supported by springs, seeps, streams, or irrigated areas that contain the bog violet host plant for eggs and larvae, and other herbaceous vegetation for cover and food resources. The butterflies may benefit from a light interspersion of willow or other shrubs for shade and for larval shelter. More dense willow and shrubs often surround open meadows where the silverspot occurs and, if the woody vegetation does not take over the meadows, the margins of denser stands can be beneficial for shade and shelter as well.

Populations need abundant individuals within habitat patches of adequate size and quality to maintain survival and reproduction. In general, the greater the suitable habitat acreage, and the greater the number of individuals within a population, the greater the resilience. Furthermore, colonies and populations need to be close enough to each other for individuals to breed with each other to maintain genetic diversity. The silverspot likely does not fly more than 5-10 miles (mi) (8-16 kilometers (km)) and would likely have difficulty finding another colony beyond this distance (Ellis 2020c, 2020d, 2020e, pers. comms.). Additionally, the silverspot needs the bog violet to be of sufficient extent and density to support colonies and populations. We define colonies to mean areas of abundant violets that produce butterflies, as well as surrounding habitat with nectar plants. If there is narrow but contiguous nectar habitat up or down a drainage but without violets (or with only sparse violets), we consider those areas transitional corridors that are likely valuable for dispersal and genetic connectivity.

The silverspot and other S. nokomis subspecies can move between colonies within a continuous or nearly continuous riparian zone (Arnold 1989, pp. 10, 14; Fleishman et al. 2002, p. 708). For example, six colonies occurred along a 5-mile stretch in Unaweep Canyon that had likely genetic interchange (Ellis 1989, p. 3). However, these are considered separate colonies due to the natural or human-caused patchiness of bog violets up and down the canyon. In a mark-recapture study (Arnold 1989, pp. 10, 14, 21) in Unaweep Canyon, about 50 percent of the recaptured butterflies moved between two colonies separated by about 0.75 mi (1.2 km). Based on this work, the researcher inferred that the silverspot could easily move at least 1 mile, and based on this, Ellis (1989, p. 19) further inferred that there was exchange of individuals among all the Unaweep Canyon colonies every 1 to 5 years. This information provided the basis for Ellis' professional judgement that colonies or populations farther than 5 to 10 mi (8 to 16 km) from each other are likely isolated (Ellis 2020c, 2020d, 2020e, pers. comm.).

Some silverspot populations are comprised of a single colony, while others are comprised of multiple colonies that function as a metapopulation. Within a metapopulation, butterflies are close enough to move between colonies and to interbreed and can recolonize temporarily extirpated areas that may result from local, naturally occurring (stochastic) events. For instance, a flood may extirpate a colony, but if there are nearby colonies, the temporarily flooded area may return to suitable habitat conditions and be recolonized by the silverspot.

Unfortunately, there is very little information on what an adequate-sized habitat patch is, especially if there is only a single colony in a population. A professional estimate for minimum patch size of colonies is 2 acres (ac) (0.8 hectares (ha)) if the habitat has a reliable groundwater source and has high violet density and is 5 ac (2 ha) if violets are less dense due to natural or human-caused variability within a patch (Ellis 2020e, pers. comm.). Although it is possible a single 2-ac or 5-ac patch of habitat could support the butterfly for a period of time, a more resilient metapopulation will likely contain at least three colonies of those patch sizes or greater. A three-colony metapopulation will have a better chance of survival by spreading the risk of extirpation if a natural event occurs at one or two of the colonies. Thus, the remaining one or two colonies can recolonize the extirpated sites assuming suitable habitat remains or reestablishes. Due to natural variability in soil and topographic conditions, we assume that most areas within the silverspot's range are likely to have a lower density of violets, rather than dense violets (Service 2023, pp. 23-25). Consequently, under this assumption, a minimum amount of habitat for a sufficiently resilient population may be 12 ac (5 ha), and this can be made up of multiple colonies if they are at least 2 ac (0.8 ha) in size (Service 2023, p. 25). The specific minimum threshold for single colonies to maintain viability is unknown, but the larger the acreage the greater the resiliency and higher likelihood of viability.

There is also little information on the minimum number of silverspot individuals needed to sustain a colony. There have only been two demographic studies for the silverspot that occurred at the same locations 10 years apart: 1979 and 1989 (Arnold 1989, entire). The 1989 study found a daily estimate of between 48 and 260 butterflies with two different models at the Unaweep Seep colony (Arnold 1989, pp. 6, 14). A combined population estimate at the Unaweep Seep colony and another upstream colony in Unaweep Canyon (which is considered two colonies due to intervening transitional habitat) resulted in a range of daily abundance from 594 to 2,689 butterflies.

Quality of habitat may have as much weight in determining resiliency of a colony or population as does overall size of a habitat patch or number of individuals. Habitat quality could potentially be measured by density of violets. The Unaweep Seep study (Arnold 1989, p. 20) revealed that the larger colony with many individuals became extirpated, likely due to vegetative encroachment, while the upstream colony with more violets remained extant. Consequently, populations appear to have greater chance for survival when containing more violets.

Based on observations of grazed and burned properties in Unaweep Canyon, occasional or well-managed grazing and burning likely benefit the violet by reducing willows, as well as reducing thatch buildup from grasses and sedges (Arnold 1989, p. 14; Ellis 1989, pp. 18, 19). Consequently, natural factors or management activities that lead to early seral stages or at least more open conditions, where willow, grass, sedge, or other vegetation does not outcompete violets, is important to colonies and populations.

Based on the scant evidence, the minimum number of individuals that are needed to sustain a silverspot colony or population is unknown, and even apparent natural but detrimental habitat factors, such as excessive growth of other plants, can cause extirpation of seemingly large colonies. Without additional study, it is not known what the minimum habitat size is to maintain viability, nor what density or abundance of bog violets or nectar plants is needed to sustain a colony or population, nor the maximum distance between colonies or populations that can be reached for genetic interchange to continue to occur on a regular basis. Furthermore, it is unknown if large single-colony populations can be sufficiently resilient without occasional genetic interchange from other populations.

In summary, to be adequately resilient, silverspot populations need water to sustain violets for the larvae, as well as occasional or seasonal disturbance by grazing from native ungulates or domestic livestock, or burning, mowing, or non-catastrophic flooding, to occasionally remove vegetation that might otherwise crowd out the violets and other nectar plants for the adults. Furthermore, based on expert opinion and evidence, the most resilient populations need to be at least 2 ac (0.8 ha) in size with dense violets or at least 5 ac (2 ha) in size with less dense violets (Ellis 2020e, pers. comm.), and need to have a few to several colonies within 0.75 to 5 mi (1.2 to 8 km) of each other and likely be not more than 10 mi (16 km) from each other (Arnold 1989, pp. 10, 14; Ellis 1989, p. 19; Ellis 2020c, 2020d, 2020e pers. comm.).

To maintain viability, the silverspot needs to have a sufficient quality and quantity of habitat for adequately resilient populations, numerous populations to create redundancy in the event of catastrophic events, and broad enough genetic and ecological diversity to adapt to changing environmental conditions (representation). The subspecies will have a better chance of long-term viability if single-colony populations and even the metapopulations occasionally receive individuals from other populations such that genetic interchange occurs, better enabling them to adapt to environmental changes.

We reviewed the potential risk factors ( i.e., threats, stressors) that could be affecting the silverspot now and in the future. In this final rule, we will discuss only those factors in detail that could meaningfully impact the status of the subspecies. Habitat loss and fragmentation, human-caused hydrologic alteration, livestock grazing, genetic isolation, exotic plant invasion, climate change, climate events, larval desiccation, and collecting are all factors that influence or could influence the subspecies' viability. Those risks that are not known to have effects on silverspot populations, such as disease, predation, prescribed burning or wildfire, and pesticides, are not discussed here but are evaluated in the SSA report.

Habitat loss from golf course and housing development caused the extirpation of two historical colonies north of Durango, Colorado (Selby 2007, entire; Ellis and Fisher 2020, pers. comm.). The remaining colony in the La Plata population has residential and commercial development across the street from it, and one of two drainages supplying water to it has relatively new housing and golf courses within 1.5 air miles (2.4 km), potentially degrading downstream silverspot habitat through hydrologic alteration. Housing development also appears to have been a contributing factor in extirpation of the Beulah, New Mexico, colony (Scott and Fisher 2014, p. 3). In Colorado, it is possible that Rifle Gap Reservoir and Dam degraded and fragmented habitat, as one butterfly was sighted at a small wetland downstream of the dam and the reservoir flooded and fragmented habitat upstream. Additional habitat alteration upstream and downstream from a variety of factors (residential and commercial development, roads, and agricultural conversion of habitat) also has likely fragmented habitat. Many other colonies and populations have development around them that also either directly encroaches on the habitat or likely has caused degradation and fragmentation from homes, roads, hydrologic alteration, and habitat conversion.

Agricultural habitat conversion can cause loss or fragmentation of habitat and typically involves mowing native meadows or growing exotic grasses for hay. Aerial imagery reveals that agricultural conversion has been extensive within the silverspot's range. It has likely caused loss of unknown colonies over the last 150 years and has fragmented native habitat, reducing connectivity between colonies and populations. Annual haying may be less detrimental than haying two or three times a summer. One major population of Speyeria nokomis (Chuska Mountains) in Arizona and New Mexico has persisted for many years even though haying occurs there once a year typically in late August or September (Cong et al. 2019, entire; Smith 2019, pers. comm.).

Despite the silverspot's potential compatibility with annually mowing native hay fields, agricultural conversion to unsuitable crops or fragmentation of habitat in the silverspot's range has been extensive. Furthermore, the impact of residential and commercial development, and other development like roads, continues to limit and/or degrade habitat in or adjacent to existing colonies and populations. Habitat loss and fragmentation, therefore, has meaningfully reduced the viability of the subspecies.

Hydrologic alteration is also a factor influencing the subspecies' viability. Hydrologic alteration can result from a variety of sources, including, but not limited to, diversions for agricultural and domestic use; erosion and stream channel incision caused by livestock grazing, mining, roads, or dredging and filling of wetlands; removal of beaver dams; manipulation of waterways that minimizes flooding and reduces natural meander features; and creation and operation of large human-made dams. For example, the only colony in the Costilla population has a diversion ditch running through it that likely reduced the size of colony. The ditch and other diversions have allowed for extensive agricultural development in the drainage that has altered native habitat and likely dropped the water table in much of the area. The Montrose County colony in the Montrose/San Juan population also has had livestock grazing and water diversions occur over the last 30 years, which have degraded the quality of the wet meadow areas and lowered the water table (Ireland 2018, pers. comm.).

Many drainages in the Sacramento Mountains, where one historical silverspot colony may have occurred, succumbed to incision of streams around 1900, in turn lowering water tables and eliminating wet meadow habitat (Service 2023, p. 35). Incision of stream channels occurred due to erosion from deforestation, conversion to agricultural and grazing lands, mining, and so forth. Beavers were also eliminated around 1900 in the Sacramento Mountains (and other parts of the West), which also undoubtedly caused reduction of water tables and elimination of wet meadow habitat suitable for the silverspot and other wetland-dependent species. Hydrologic alteration that degrades riparian areas and lowers water tables from natural systems has occurred not only in the Costilla population, Montrose/San Juan population, and Sacramento Mountains, but extensively in the western United States, including much of the silverspot's range. Hydrologic alteration continues to limit suitable habitat and is a major factor influencing the viability of the subspecies.

Grazing is ongoing in suitable habitat for the subspecies and is a major factor influencing the subspecies' viability. Livestock grazing may cause habitat loss and degradation if excessive, especially in the naturally scarce habitats of the silverspot (Hammond and McCorkle 1983, p. 219) and depending on the timing and intensity. Year-round grazing or heavy summer grazing is typically incompatible with the silverspot because livestock graze on the violet leaves, nectar sources, and other vegetation necessary for the butterfly when the larvae and adults need them (Ellis 1999, p. 5). For example, an area adjacent to a colony in the Ouray population has underlying hydrology and soils beneficial for the silverspot, but the habitat is unsuitable due primarily to grazing and perhaps to a lesser extent occasional mowing for hay (Service 2023, figure 13, p. 34).

Livestock grazing benefits and is compatible with silverspot conservation if managed appropriately. Winter grazing is beneficial to maintain the bog violet and suitable habitat conditions. Light or moderate summer grazing (up to 20 or 30 percent vegetative utilization) appears to be acceptable (Arnold 1989, p. 14), but total rest from grazing in the summer is preferred (Ellis 2020g, pers. comm.). If one or more kinds of vegetation are too dense, they can prevent the bog violet from persisting and thus cause extirpation of the silverspot. This occurred in the Unaweep Seep colony in the Mesa/Grand population, perhaps primarily because of spike rush ( Eleocharis spp.) invasion of meadows but also seemingly because of grass, sedge, and willow invasion (Arnold 1989, pp. 9, 14; Ellis 1999, pp. 3, 5, 6). It is unknown if this invasion would have occurred without grazing or if long-term grazing was the factor that shifted vegetation. Without occasional reduction or removal, herbaceous or woody vegetation could crowd out violets. Seasonal grazing or mowing and other occasional disturbances, such as burning or non-catastrophic flooding, are needed to maintain suitable habitat conditions for the silverspot. We identify some of these practices as exceptions to the take prohibitions under the 4(d) rule (see “Provisions of the 4(d) rule” below).

Population isolation can cause detrimental genetic and demographic effects and is a concern for the silverspot's population resiliency as well as its redundancy and representation. Lower levels of genetic diversity can reduce the capacity of a population to respond to environmental change (representation) and may lead to reduced population fitness through reductions in individual longevity and fecundity ( i.e., fewer offspring) and smaller population sizes (Darvill et al. 2006, p. 608). Another silverspot subspecies, S. n. apacheana, has low genetic diversity, likely from genetic drift (loss of alleles (versions of a gene) or change in their frequency in a population) due to genetic isolation and small population size (Britten et al. 1994, entire). Genetic exchange between and within populations can alleviate problems with genetic drift and augment populations demographically. In S. n. apacheana, routine dispersal distances up to 2.5 mi (3.9 km) were documented, and 26 percent of the recaptured butterflies had emigrated from the initial patch of capture (Fleishman et al. 2002, p. 708). This migration appears to play an important role for S. n. apacheana populations both demographically and genetically (Britten et al. 2003, p. 232). Consequently, the ability or inability of individuals to migrate between colonies and populations is expected to also be of benefit or detriment, respectively, for the silverspot.

Genetic isolation among silverspot populations indicates reduced population fitness and could be of concern in the future (Cong et al. 2019, p. 22). Based on the latest scientific evidence, genetic exchange does not appear to occur between colonies or populations that are at least 20 miles apart (Cong et al. 2019, entire). Currently, the distance between the two closest populations, which we know are genetically different and represent separate populations, is 24.5 air miles (39 km) (between the Taos and San Miguel/Mora populations in New Mexico). Consequently, and more specifically, the distance where silverspot populations may not interbreed and thus may not support each other genetically or demographically appears to be somewhere between 20 and 24.5 air miles (32 and 39 km). We used the minimum distance of 20 mi (32 km), based on findings of Cong et al. (2019, entire), in our analysis of genetic connectivity (see Current Condition, below).

Reasons for isolation, specifically whether from natural fragmentation or human habitat alteration, are not currently known for all populations. It is also not known how long single colonies may have been isolated from each other. If an isolated colony has enough area of habitat to support large numbers of the butterfly, it may be resilient enough to survive without nearby colonies and thus maintain viability for a long time. However, many silverspot populations, whether single-colony or multi-colony, have limited amounts of habitat. It is unknown specifically how long it will take for low genetic diversity to become a threat to the silverspot, but isolation of populations indicates that loss of genetic diversity could be a threat at some point, if loss of populations through lack of demographic support does not occur first, and both are cause for concern for the subspecies' viability.

The Taos population has experienced some invasion by the exotic Siberian elm ( Ulmus pumila ). Because Siberian elm is widespread in the silverspot's range, we expect its occurrence to increase if changes in climate reduce snowpack and water levels in the wet meadows of the Taos population or other populations. Similarly, the extirpated Unaweep Seep colony location was invaded by other exotic species, including Himalayan blackberry ( Rubus armeniacus ) and tree-of-heaven ( Ailanthus altissima ). Although not known to occupy other colonies at present, these plant species could invade other colonies (Plank 2020, pers. comm.). Other exotic woody or herbaceous species (such as Russian olive ( Elaeagnus angustifolia ), tamarisk ( Tamarix spp.), or leafy spurge ( Euphorbia esula )) can rapidly take over habitat and could eliminate bog violets and other native plants. However, there is currently little to no data on plants at the colonies (Ellis 1989, pp. 14-15).

Some nonnative thistles, such as Canada thistle ( Cirsium arvense ), occur in or around colonies and can create monocultures that create poor overall habitat conditions for the silverspot and bog violet by replacing native species (Ellis 1989, p. 14; Selby 2007, p. 30). Land managers in the West sometimes control the spread of exotic thistles, but Canada thistle (as well as native thistles) provides a nectar source for the silverspot. Additionally, the adventive (exotic but not well-established) bull thistle ( C. vulgare ) and burdock ( Arctium minus ) can provide nectar sources (Ellis 1989, p. 14). Because the silverspot uses exotic thistles, aggressive control of them has been advised against (Fisher 2020e, pers. comm.). It does not appear that monocultures of Canada thistle or other exotic vegetation have replaced native vegetation beneficial for the silverspot at observed colonies (Ireland 2018, pers. comm.), but study of plant composition at all colonies is needed to determine levels of exotic plant presence. Exotic plant invasion is currently considered a minor factor because exotic species are not currently known to be significantly influencing the subspecies' viability.

Climate events are defined in the SSA report as events that would happen within the range of normal variability ( i.e., stochastic events). However, they may reduce the amount and quality of habitat and the number of butterflies. A record of other Speyeria in Utah indicates that too much rain can reduce the number of butterflies but may be beneficial to violets, which can support greater numbers of butterflies in following years (Myrup 2020b, pers. comm.). Similarly, floods may at least temporarily reduce the amount and quality of habitat and vegetation as well as butterfly numbers by inundating the area with water for long periods or by erosion. For instance, the Lake Fork River in northeast Utah flooded in the spring of 2019 and caused the reduction or extirpation of a related silverspot subspecies colony in the Uinta Mountains documented the year before (Ellis 2019, pers. comm.). However, the flood event was not outside the norm for past observed flood events in that drainage. This stochastic event provides an example of normal climate events that can cause reduction in numbers of individual butterflies or temporary extirpation of a colony but are not expected to cause permanent reduction or extirpation. Thus, climate events are not expected to reduce the subspecies' viability in the long term and are considered a minor factor influencing the subspecies' viability.

The climate within the silverspot's range already appears to be changing because of increased greenhouse gas emissions, with earlier springs and warmer temperatures. Average temperatures in Colorado have increased by 2.5 °F (1.4 °C) in the last 50 years (Lukas et al. 2014, p. 2). Snowpack, as measured by snow water equivalent, has mostly been below average in Colorado since 2000. The timing of snowmelt and peak runoff has also shifted 1 to 4 weeks earlier in the last 30 years in Colorado. Furthermore, the Palmer Drought Severity Index has shown an increasing trend in soil-moisture drought conditions due to below average precipitation since 2000 and the warming trend (Lukas et al. 2014, p. 2). More recent analysis using National Oceanic and Atmospheric Administration (NOAA) temperature data shows that, since 1895, the average temperature in much of the northern half of the silverspot's range has increased by 3.6 °F (2 °C) or more, and it is reported that average annual flows in the Colorado River Basin have declined by 20 percent over the past century (Eilperin 2020, entire). However, tree ring and other paleoclimate data indicate that there were more severe and sustained droughts prior to recent climate data (since 1900) (Lukas et al. 2014, pp. 2, 3). The silverspot has survived through the more severe past droughts, and, despite noted changes in climate over the last 36 years, climate has thus far not been a detectable factor in reduction of the subspecies' viability. Consequently, at the present and for the current condition analysis in the SSA report, climate change is considered a minor factor. However, climate may become a major factor; see additional discussion of climate change under Future Condition, below.

Desiccation of overwintering larvae may be a stressor if soil moisture and air humidity are too low or if larvae cannot remain hydrated. Soil moisture and dead vegetation, along with some air flow, may provide suitable conditions that prevent desiccation (Fisher 2020b, 2020f, pers. comm.). Hydration also appears to be needed prior to first instar larvae overwintering and is achievable if water for drinking is freely available and if soil or air moisture is sufficient for absorption (Myrup 2020a, pers. comm.; Stout 2020, entire). Snow cover may also provide some desiccation prevention and thermal cover, although it may not be a significant factor (Ellis 2020a, 2020b, pers. comm.). Snow cover may be of benefit during extreme cold (Fisher 2020b, pers. comm.). In general, however, extreme cold in the silverspot's range is preceded by snow; thus, extreme cold may kill some larvae but is likely not a major factor that reduces the subspecies' viability.

Collecting has occurred in silverspot colonies, and it is possible collecting in small colonies could negatively affect population resiliency (Ellis 1989, p. 15; Selby 2007, p. 31; Scott 2023, pers. comm.). We know of one colony that was extirpated, in part, from collection by multiple people (Scott 2023, pers. comm.). However, collecting is not currently thought to be a significant stressor for the silverspot because most colonies occur on private land, colony locations are largely unknown to the public, and current collecting pressure is not thought to be extensive (Ellis 2020f, pers. comm.). In terms of the effect on the current condition of the subspecies, collecting is currently considered a minor factor and does not appear to be significantly reducing the subspecies' viability. Efforts should be taken to keep it a minor factor, as losing even one of the remaining populations to collection could have a substantial impact on the subspecies' redundancy and representation. We are concerned about the potentially detrimental effects to the subspecies' viability from future collection if silverspot locations, especially the locations of smaller populations, are made public (see section III. Critical Habitat below).

We assessed current conditions of silverspot populations in relation to the ecological requirements of this subspecies. Measurements available that are consistent across populations are habitat patch size, number of colonies, and approximate distance between colonies within a population from which genetic connectivity can be estimated. Additionally, the presence and potential influence of the three major habitat factors affecting the subspecies (habitat loss and fragmentation, livestock grazing, and hydrologic alteration) were derived from aerial imagery and/or on-the-ground knowledge. Therefore, we used these metrics to characterize the current resiliency condition of populations (see the SSA report's section 3.5 “Current Condition by Population” on how metric scores were derived; Service 2023, pp. 39-40).

Resiliency scores and categories were established based on the best available information and professional opinion of species experts. Habitat patch sizes are estimates based on expert opinion of individual colony bog violet areas and primary nectar plant areas using aerial imagery or field observations. Determination of the number and status of colonies within a population was primarily based on expert input and survey information.

There are 10 silverspot populations comprised of 21 known colonies. Two populations, Archuleta and Garfield, were not included in the genetic analysis by Cong et al. (2019, entire) due to a lack of samples, but we consider them to be part of the silverspot subspecies due to their geographic proximity to confirmed populations. We designated the Archuleta and Garfield populations as separate populations because they are more than 20 air miles (32 km) away from other populations (41 and 80 mi (66 and 129 km), respectively) and it is likely populations more than 20 mi (32 km) apart are not genetically connected (Ellis 2020c, 2020d, 2020e, pers. comm.; Grishin 2020b, pers. comm.)

Within the range of and among all 10 populations, five previously known colonies have been extirpated; one was confirmed as extirpated from the Ouray population as recently as 2022 (Fisher 2022b, pers. comm.). The other four extirpations occurred over the last 40 years (since the late 1970s) (Scott and Fisher 2014, p. 3; Service 2023, pp. 18-19). Not including the extirpated colonies or stray sightings, and based on recent surveys or expert input, we evaluated the 21 known colonies that make up the 10 populations. There is some uncertainty whether all 21 colonies are extant based on the lack of consistent and consecutive surveys over the last 5 years. We characterize their current status in the SSA report as extant, likely extant, unknown, likely extirpated, or extirpated (Service 2023, pp. 40, 47).

Resiliency for each population was scored using metrics for population size (in acres), number of colonies within populations, connectivity within populations, and habitat condition. Resiliency scores are categorized as follows: 0 = predicted extirpation (future scenarios only); 1 = very low resiliency; 2 and 3 = low resiliency; 4 to 6 = moderate resiliency; and 7 and above = high resiliency (see table 1, below). According to our current condition analysis in the SSA report, three populations have very low resiliency, three populations have low resiliency, two populations have moderate resiliency, and two populations have high resiliency (see table 1, below; Service 2023, pp. 46-49).

With 10 populations spread across 284 air miles (457 km) north to south and 237 air miles (381 km) east to west, there appears to be adequate redundancy should catastrophic events occur that cause extirpation of one or a few populations. However, if catastrophic events cause extirpation of the populations with the highest resiliency (Mesa/Grand, Montrose/San Juan, Ouray, and Taos), it could be quite detrimental to the viability of the subspecies because the six remaining populations have very low or low resiliency. Due to the low resiliency of many populations, more populations with sufficient resiliency would contribute to the subspecies' viability. Based on our evaluation of the 10 populations, we consider the current condition of the subspecies' redundancy to be moderate.

The 10 silverspot populations represent the genetic and ecological variation (representation) currently known for this subspecies. Eight silverspot populations were identified based on genetic variation, which supports the ability of the subspecies to adapt over time to long-term changes in the environment (for example, climate change) (Cong et al. 2019, entire). However, 5 populations are comprised of a single colony, and all 10 populations appear isolated from one another. Genetic drift, the change in allele frequency in a population, is a particular concern for the small, isolated populations, and could impact the subspecies' adaptive capacity. In general, the bog violet and the silverspot occur in the same habitat across the range, but ecological representation adds to adaptive capacity because the silverspot occurs at different elevations and latitudes, such that overall, the silverspot has low to moderate representation. Future analysis of ecological settings at all colonies and populations is needed to improve our understanding of representation across the subspecies' range.

In summary, there are currently 21 colonies representing the 10 populations. In terms of resiliency, three populations are in very low condition, three in low condition, two in moderate condition, and two in high condition. Current redundancy is determined to be moderate, and representation is thought to be low to moderate.

In the SSA report, we forecast the resiliency of silverspot populations and the redundancy and representation of the subspecies over the next approximately 30 years (to the year 2050) using a range of plausible future scenarios. This timeframe encompasses approximately 30 generations of the subspecies, and we can reasonably rely on the climate model projections and our projections of the subspecies' response up to this point. Climate change impacts and human habitat impacts are likely to be the biggest drivers of changes to resiliency, redundancy, and representation for the silverspot. We evaluated four future scenarios that capture the range of plausible futures based on four climate models and future climate projections developed for southern Colorado and northern New Mexico (Rangwala 2020a, entire; 2020b, entire). Three of the four models use representative concentration pathway (RCP; a greenhouse gas concentration trajectory) 4.5, and the fourth uses RCP8.5. The RCP4.5 is considered a medium emissions trajectory, and the RCP8.5 is considered a high emissions trajectory. The higher the emissions, the greater chance the climate will change further from the 1971-2000 baseline. Current policies are projected to take us slightly above the RCP4.5 emission trends by mid-century (Hausfather and Peters 2020, p. 260). The climate models are presented in the SSA report (Service 2023, tables 5-8, pp. 51-54).

Using the four climate scenarios, we developed four future condition scenarios to evaluate the future viability of the silverspot. In simple terms, the four scenarios include:

• Scenario 1: Warm Climate with Conservation Efforts;

• Scenario 2: Hot and Dry Summers/Very Wet Winters with Conservation Efforts;

• Scenario 3: Very Hot and Very Dry Summers/Wet Winters with No Conservation Efforts; and

• Scenario 4: Hot and Very Dry Summers/Dry Winters with No Conservation Efforts.

Because Scenarios 1 and 2 included potential future conservation efforts, which are not certain to occur and are not formalized in any conservation agreements, we did not consider these scenarios when determining if the silverspot meets the Act's definition of an endangered species or of a threatened species. However, Scenarios 1 and 2 will inform our strategies for recovery of the subspecies. Therefore, our analysis in this final rule focuses on the future condition of the silverspot under Scenarios 3 and 4, as summarized below. Refer to the SSA report for full descriptions of the future scenarios (Service 2023, chapter 4, pp. 49-67).

Scenario 3 is characterized by the following assumptions:

• An increase in direct habitat loss due to development occurs, particularly in colonies close to existing housing development.

• Habitat fragmentation due to agricultural conversion remains unchanged from the current condition.

• Greater negative effects from summer grazing occur because of dry or drought conditions (an increase from current condition) that reduce nectar sources.

• No efforts are made to maintain current hydrology, and, in combination with dry or drought conditions, the habitat areas of small colonies will dry up and become extirpated and larger colonies are reduced in size (a decrease in suitable habitat from the current condition).

• All populations receive a negative habitat factor score due to climate-related hydrologic alteration whether there is surrounding development or not.

• No translocations of butterflies are implemented, and genetic diversity is low.

• Climate emissions follow RCP8.5 (a high emissions scenario) with very hot and dry summers and wet winters.

Scenario 4 is characterized by the following assumptions:

• We include the same assumptions as Scenario 3 for habitat loss and fragmentation, summer grazing, hydrology and climate-related hydrologic factors, and translocation (the first six bullets, above).

• Climate emissions follow RCP4.5 (a medium emissions scenario) with hot and very dry summers and dry winters.

Resiliency rankings for each population under Scenario 3 can be found in table 2, below, and in the SSA report (Service 2023, table 11, p. 64). Four of the previously ranked low or very low resiliency populations under current conditions are expected to become extirpated, three populations have a very low resiliency, two have low resiliency, and the Ouray population retains a moderate resiliency, surpassing the Mesa/Grand and Taos populations as the highest-ranking population. Extirpation of colonies will reduce resiliency and redundancy of populations and will also undoubtedly decrease representation relative to the current condition, causing a decline in subspecies' viability.

Resiliency rankings for each population under Scenario 4 can be found in table 2, below, and in the SSA report (Service 2023, table 12, p. 66). As in Scenario 3, we expect climate change will cause the extirpation of four populations, which have habitat areas smaller than 12 ac (5 ha). The size of habitat in the remaining populations is projected to decrease compared to the current condition. Compared to Scenario 3, habitat size is projected to be larger in the Colorado populations and smaller in the Taos population, but not enough to change the size scoring. With slightly less evaporative stress and slightly lower frequency of severe drought under Scenario 4 compared to Scenario 3, remaining populations may, in turn, be slightly more resilient in this scenario than in Scenario 3. However, using the resiliency scoring metrics in the SSA report, the minor differences in resiliency between the two scenarios are too small to result in different scores. Consequently, resiliency scorings are the same in both Scenarios 3 and 4, with four extirpated populations, three very low and two low resiliency populations, and only one moderately resilient population. Redundancy and representation are projected to be low, the same as in Scenario 3, and a decrease from the current condition.

A comparison of the resiliency of each population for the current condition and future scenarios is presented below in table 2, and table 3 presents a summary of redundancy and representation (see also Service 2023, table 13, p. 67). Currently, we have determined that 3 of the 10 silverspot populations are in a very low resiliency condition, 3 are in a low resiliency condition, 2 are in a moderate resiliency condition, and 2 of the largest populations are in a high resiliency condition. With 10 populations spread across the subspecies' range, there appears to be adequate redundancy should catastrophic events occur that cause the extirpation of one or a few populations, and we consider current redundancy to be moderate for the silverspot. It is likely there is sufficient representation and adaptability due to the genetic differences observed among populations. However, many of the populations are composed of a single colony, and all populations appear isolated genetically. In general, the bog violet and the silverspot occur in the same habitat across the subspecies' range, but ecological representation adds to adaptive capacity through occurrences at different elevations and latitudes and provides a low-to-moderate subspecies representation currently.

The effects of future climate changes coupled with the continuation of other stressors that alter hydrology and cause habitat loss and fragmentation are projected to increase over the next 30 years in Scenarios 3 and 4, resulting in future conditions that cause resiliency, redundancy, and representation to decrease, and thus the subspecies' viability is expected to decrease from the current condition. Resiliency rankings are the same for Scenarios 3 and 4 with four extirpated populations, three very low and two low resiliency populations, and only one moderately resilient population. Redundancy and representation are both projected to be reduced from the current condition.