Under section 409(b)(5) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 348(b)(5)), we are giving notice that we have filed a food additive petition (FAP 2A4832), submitted by Burdock Group Consultants on behalf of PHM Brands, 730 17th Street, Denver, Colorado 80202. The petition proposes to amend the food additive regulations in § 173.300 (21 CFR 173.300; Chlorine dioxide ) to provide for production of the additive via an electrolytic method from a brine solution containing chloride salts.

We are reviewing the potential environmental impact of this petition. To encourage public participation consistent with regulations issued under the National Environmental Policy Act (40 CFR 1501.4(b)), we are placing the environmental assessment submitted with the petition that is the subject of this notice on public display at the Dockets Management Staff (see DATES and ADDRESSES ) for public review and comment.

We will also place on public display, at the Dockets Management Staff and at https://www.regulations.gov, any amendments to, or comments on, the petitioner's environmental assessment without further announcement in the Federal Register . If, based on our review, we find that an environmental impact statement is not required, and this petition results in a regulation, we will publish the notice of availability of our finding of no significant impact and the evidence supporting that finding with the regulation in the Federal Register in accordance with 21 CFR 25.51(b).

Background

Section 48D was added to the Internal Revenue Code (Code) on August 9, 2022, by section 107(a) of the CHIPS Act of 2022 (CHIPS Act), which was enacted as Division A of the CHIPS and Science Act of 2022, Public Law 117-167, 136 Stat. 1366, 1393. Section 48D established the advanced manufacturing investment credit (section 48D credit) and section 48D(d) allows taxpayers (other than partnerships and S corporations) to elect to treat the amount of the section 48D credit determined under section 48D(a) as a payment against their Federal income tax liabilities. Section 48D(d) also provides special rules relating to elective payments to partnerships and S corporations and directs the Secretary of the Treasury or her delegate (Secretary) to provide rules for making elections under section 48D and to require information or registration necessary for purposes of preventing duplication, fraud, improper payments, or excessive payments under section 48D. Section 48D applies to qualified property placed in service after December 31, 2022, and, for any property the construction of which began prior to January 1, 2023, only to the extent of the basis thereof attributable to the construction, reconstruction, or erection of such qualified property after August 9, 2022 (the date of enactment of the CHIPS Act). See section 107(f)(1) of the CHIPS Act.

On March 23, 2023, the Treasury Department and the IRS published in the Federal Register (88 FR 17451) a notice of proposed rulemaking (REG-120653-22), which contains proposed regulations to implement the general provisions relating to the section 48D credit (March 2023 proposed regulations). The March 2023 proposed regulations included proposed definitions of various statutory terms, including “eligible taxpayer,” “qualified property,” “advanced manufacturing facility,” and “semiconductor.” The March 2023 proposed regulations also proposed rules under section 48D regarding the beginning of construction requirement; proposed rules requiring pre-filing registration with the IRS in advance of filing an elective payment election; and proposed rules implementing the “applicable transaction” credit recapture rules under section 50(a)(3) of the Code. In addition, the March 2023 proposed regulations requested comments on potential issues with respect to the elective payment election provisions under section 48D(d) that may require guidance. This document contains proposed amendments to the Income Tax Regulations (26 CFR part 1) to implement the statutory provisions of section 48D(d) and revise the rules in proposed § 1.48D-6 of the March 2023 proposed regulations.

In the Rules and Regulations section of this issue of the Federal Register , the Treasury Department and the IRS are issuing temporary regulations under § 1.48D-6T that implement the pre-filing registration process described in proposed § 1.48D-6 of the proposed regulations. The temporary regulations require taxpayers that want to elect the elective payment of the section 48D credit to register with the IRS through an IRS electronic portal in advance of the taxpayer filing the return on which the election under section 48D is made.

Section 48D(d)(1) allows a taxpayer to elect to treat the section 48D credit determined for the taxpayer for a taxable year as a payment against the tax imposed by subtitle A of the Code (that is, treated as a payment of Federal income tax) equal to the amount of the credit rather than a credit against the taxpayer's Federal income tax liability for that taxable year (elective payment election).

Section 48D(d)(2)(A) provides special rules for partnerships (as defined in section 761(a)) and for S corporations (as defined in section 1361(a)(1) of the Code). Section 48D(d)(2)(A)(i) provides that, in the case of any credit determined with respect to any property held directly by a partnership or S corporation, any election under section 48D(d)(1) is to be made by such partnership or S corporation and must be made in such manner as the Secretary may provide. If such partnership or S corporation makes an election under section 48D(d)(1), (1) the Secretary will make a payment to such partnership or S corporation equal to the amount of such credit, (2) section 48D(d)(3) is applied with respect to the credit before determining any partner's distributive share, or S corporation shareholder's pro rata share, of such credit, (3) any credit amount with respect to which the election in section 48D(d)(1) is made is treated as tax exempt income for purposes of sections 705 and 1366 of the Code, and (4) a partner's distributive share of such tax exempt income is based on such partner's distributive share of the otherwise applicable credit for each taxable year.

Section 48D(d)(2)(B) requires the elective payment election to be made no later than the due date (including extensions of time) of the tax return for the taxable year for which the election is made. The elective payment election is irrevocable once made and applies with respect to any credit for the taxable year for which the election is made.

Section 48D(d)(2)(E) provides that, as a condition of, and prior to, any amount between treated as a payment by or to the taxpayer, the Secretary may require such information or registration as the Secretary deems necessary or appropriate for purposes of preventing duplication, fraud, improper payments, or excessive payments.

Section 48D(d)(2)(F) provides rules relating to excessive payments. In the case of any amount treated as a payment which is made by the taxpayer under section 48D(d)(1), or the amount of the payment made pursuant to section 48D(d)(2)(A), that the Secretary determines constitutes an excessive payment, the tax imposed on such taxpayer by chapter 1 of the Code, for the taxable year in which such determination is made must be increased by an amount equal to the sum of (1) the amount of any payment treated as made by or to the taxpayer which the Secretary determines constitutes an excessive payment, (2) plus 20 percent of such excessive payment. The increase equal to 20 percent of the excessive payment does not apply if the taxpayer demonstrates to the satisfaction of the Secretary that the excessive payment resulted from reasonable cause.

Section 48D(d)(2)(F)(iii) defines “excessive payment” as, with respect to property for which an elective payment election is made for any taxable year, an amount equal to the excess of (I) the amount treated as a payment made by the taxpayer under section 48D(d)(1) or the amount of the payment made pursuant to section 48D(d)(2)(A)(i) over (II) the amount of the credit which, without application of section 48D(d), would be otherwise allowable under section 48D(a) (determined without regard to section 38(c)) with respect to such property for such taxable year.

Section 48D(d)(3) provides a denial of double benefit rule. It states that, in the case of a taxpayer making an elective payment election with respect to the credit determined under section 48D(a), such credit is reduced to zero and is deemed to have been allowed to the taxpayer for such taxable year for any other purposes under the Code.

Section 48D(d)(5) provides basis reduction and recapture rules. It states that rules similar to the rules of section 50(a) and (c) of the Code apply with respect to amounts treated as a payment made by a taxpayer under section 48D(d)(1) and any payment made pursuant to section 48D(d)(2)(A).

Section 48D(d)(6) authorizes the Secretary to issue regulations or other guidance determined to be necessary or appropriate to carry out the elective payment election provisions of section 48D(d), including (A) regulations or other guidance providing rules for determining a partner's distributive share of the tax exempt income described in section 48D(d)(2)(A)(i) and (B) guidance to ensure that the amount treated as a payment under section 48D(d)(1) or payment made under section 48D(d)(2)(A)(i) is commensurate with the amount of the section 48D credit that generally would be otherwise allowable (determined without regard to section 38(c) of the Code).

These proposed regulations revise § 1.48D-6(a)(1) and (2) of the March 2023 proposed regulations to clarify that an elective payment election may only be made on an original return of tax filed not later than the due date (including extensions of time) for the return for the taxable year for which the section 48D credit is determined and in the manner as provided in guidance, and must include any required completed source credit form(s) with respect to the qualified property, a completed Form 3800, General Business Credit, and any additional information, including supporting calculations, required in instructions to the relevant forms. An original return would include a superseding return filed on or before the due date (including extensions). No elective payment election would be permitted to be made or revised on an amended return or by filing an administrative adjustment request under section 6227 of the Code. There also would be no relief available under §§ 301.9100-1 through 301.9100-3 of the Procedure and Administration Regulations (26 CFR part 301) for an elective payment election that is not timely filed.

These proposed regulations would further provide that a taxpayer makes the elective payment election with respect to any section 48D credit determined with respect to such taxpayer in accordance with section 48D(d)(1), and the taxpayer must include a statement with the election attesting under penalties of perjury that the taxpayer claiming to be an eligible taxpayer is not a foreign entity of concern and has not made an applicable transaction during the taxable year that the qualified property is placed in service, and will not claim a double benefit (within the meaning of section 48D(d)(3) and § 1.48-6(d)(2)(ii)(B), (C), and (e)) with respect to any elective payment election made by the taxpayer.

These proposed regulations revise § 1.48D-6(a)(4) of the March 2023 proposed regulations by explaining the application of the section 48D(d)(3) denial of a double benefit rule and addressing the methodology for determining the amount of an elective payment, reducing the section 48D credit amount to zero, and treating the section 48D credit as a credit allowed for the taxable year for all other purposes of the Code with respect to taxpayers other than partnerships or S corporations. The proposed application of the denial of a double benefit rule is redesignated as proposed § 1.48D-6(e). The methodology with respect to a payment made to a partnership or S corporation is provided in proposed § 1.48D-6(d)(2)(ii)(B), as described in part III of this Explanation of Provisions.

A taxpayer (other than a partnership or S corporation) making an elective payment election applies section 48D(d)(3) by taking the following steps. First, the taxpayer would compute the amount of the tax liability (if any) for the taxable year, without regard to general business credits (GBCs), that is payable on the due date of the tax return (without regard to extensions), and the amount of the Federal income tax liability that may be offset by GBCs pursuant to the limitation based on the amount of tax under section 38 (Step 1). Second, the taxpayer would compute the allowed amount of the GBCs carryforwards carried to the taxable year plus the amount of current year GBCs (including the section 48D credit) allowed for the taxable year under section 38 (that is, in accordance with all the rules in section 38, including the ordering rules provided in section 38(d)). Since the election would be required to be made on an original return filed before the due date (including extensions of time) for the taxable year for which the section 48D credit is determined, any GBC carryback would not be considered when determining the elective payment amount for the taxable year (Step 2). Third, the taxpayer would apply the GBCs allowed for the taxable year as computed in Step 2, including those attributable to the section 48D credit as GBCs, against the tax liability computed in Step 1. Fourth, the taxpayer would identify the amount of any excess or unused current year GBC, as defined under section 39, attributable to current year section 48D credit(s) for which the taxpayer is making an elective payment election. The amount of such unused section 48D credits would be treated as a payment against the tax imposed by subtitle A for the taxable year with respect to which such credits are determined (rather than having them available for carryback or carryover) (net elective payment amount) (Step 4). Fifth, the taxpayer would reduce the section 48D credit(s) for which an elective payment election is made by the amount (if any) allowed as a general business credit under section 38 for the taxable year, as provided in Step 3, and by the net elective payment amount (if any) that is treated as a payment against tax, as provided in Step 4, which results in the section 48D credit(s) being reduced to zero.

The proposed regulations would provide, consistent with section 48D(d)(3), that the full amount of the section 48D credits for which an elective payment election is made is deemed to have been allowed for all other purposes of the Code, including, but not limited to, the basis reduction and recapture rules imposed by section 50 and the calculation of any underpayment of estimated taxes under sections 6654 and 6655 of the Code.

The Treasury Department and the IRS request comments on whether future guidance should expand or clarify the methodology that a taxpayer follows to compute the amount of its elective payment. Comments are also requested on additional Code sections under which it may be necessary to consider the section 48D credit to have been deemed to have been allowed for the taxable year in which an elective payment election is made.

Section 48D(d)(2)(A)(i) provides that, in the case of any credit determined with respect to any property held directly by a partnership or S corporation, any election under section 48D(d)(1) is to be made by such partnership or S corporation and must be made in such manner as the Secretary may provide. If such partnership or S corporation makes an election under section 48D(d)(1), the special rules of section 48D(d)(2)(A)(i)(I) through (IV) apply. In that regard, proposed § 1.48D-6(d)(2)(ii) would provide that (1) the IRS will make a payment to such partnership or S corporation equal to the amount of such credit; (2) before determining any partner's distributive share, or shareholder's pro rata share, of such credit, such credit is reduced to zero and is, for any other purposes under the Code, deemed to have been allowed solely to such entity (and not allocated by such entity, or otherwise allowed, to any partner or shareholder) for such taxable year; (3) any amount with respect to which the election under section 48D(d)(1) is made is treated as tax exempt income for purposes of sections 705 and 1366; and (4) a partner's distributive share of such tax exempt income is equal to such partner's distributive share of its otherwise allocable basis in the qualified property as determined under § 1.48D-2(h)(2)(i) for such year. The tax exempt income is taken into account by the partnership or S corporation at the same time as the underlying credit would have been taken into account by the partnership or S corporation absent an elective payment election. Such tax exempt income resulting from such election is treated as received or accrued, including for purposes of sections 705 and 1366 of the Code, as of the date the qualified property is placed in service with respect to the partnership or S corporation. The proposed regulations provide an example illustrating this rule. Because it is the section 48D credits, and not the tax exempt income, that arise from the conduct of the trade or business, the proposed regulations would treat the tax exempt income resulting from an elective payment election by a partnership or an S corporation as arising from an investment activity and not from the conduct of a trade or business within the meaning of section 469(c)(1)(A). As such, the tax exempt income would not be treated as passive income to any partners or shareholders who do not materially participate within the meaning of section 469(c)(1)(B).

In response to stakeholder comments, the Treasury Department and the IRS clarify here that there are no restrictions imposed under section 48D or the section 48D regulations on how a partnership or S corporation that receives a payment from the IRS pursuant to an elective payment election may use the cash payment in its operations (including when it makes distributions to its distributions to its partners or shareholders).

Section 48D(d)(6)(B) requires that the Secretary issue regulations or other guidance to ensure that the amount of a payment under section 48(D)(2)(A)(i)(I) to a partnership or S corporation is commensurate with the amount of the credit that would otherwise be allowable (without regard to section 38(c)). Therefore, proposed § 1.48D-6(d)(6) would provide that, in determining the section 48D credit amount that will result in a payment to a partnership or S corporation, the partnership or S corporation must compute the amount of the section 48D credit allowable (without regard to section 38(c)) as if an elective payment election were not made. Because a partnership or S corporation is not subject to section 469 (that is, section 469 applies at the partner or shareholder level), the amount of the credit determined with respect to any qualified property owned by a partnership or S corporation is not subject to limitation by section 469.

However, section 49 generally impacts the amount of a credit determined with respect to a qualified property. Proposed § 1.48D-6(d)(6)(ii) provides rules for the application of section 49 to a partnership or S corporation. The proposed regulations would provide that any amount of section 48D credit determined with respect to the qualified property held directly by a partnership or S corporation must be determined by the partnership or S corporation taking into account the section 49 at-risk rules at the partner or shareholder level as of the close of the taxable year in which the qualified property is placed in service. Thus, if the credit base of the qualified property is limited to a partner or shareholder by section 49, then the amount of the section 48D credit determined by the partnership or S corporation is also limited. The proposed regulations would provide that a partnership or S corporation that makes an elective payment election must request from each of its partners or shareholders, respectively, that is subject to section 49, the amount of such partner's or shareholder's nonqualified nonrecourse financing with respect to the qualified property as of the close of the taxable year in which the property is placed in service. Additionally, the partnership or S corporation would attach to its tax return for the taxable year in which the property is placed in service, the amount of each partner's or shareholder's section 49 limitation with respect to the qualified property. The Treasury Department and the IRS request comments as to whether (1) any information or reporting requirements are needed for partnerships and S corporations to apply these rules when determining the amount of the section 48D credit for which an elective payment election can be made by a partnership or S corporation or (2) any additional clarifications are needed regarding how the at-risk rules apply to the determination of the section 48D credit by a taxpayer.

Many partnerships are subject to the centralized partnership audit regime found in subchapter C of chapter 63 of the Code as amended by the Bipartisan Budget Act of 2015 (BBA). 1 In connection with the implementation of section 48D, the Treasury Department and the IRS identified several areas of the BBA regulations that require updates to administer section 48D in the case of a partnership subject to the BBA (BBA partnership). Section 6221 of the Code provides that any adjustment to a partnership-related item with respect to a BBA partnership, and any tax attributable thereto, is assessed and collected at the partnership-level except to the extent provided under the BBA. The BBA outlines centralized audit procedures which generally must be followed before the IRS can adjust a partnership-related item (as defined in § 301.6241-1). Accordingly, the notice of proposed rulemaking (REG-101607-23) found in the Proposed Rules of this issue of the Federal Register , which primarily relates to proposed rules under section 6417, would add a new paragraph (j) to § 301.6241-7 to provide that an election by a BBA partnership under section 48D(d) can be adjusted outside of the BBA audit rules. Proposed § 1.48D-6(d)(7) would cross-reference to proposed § 301.6241-7(j) for rules applicable to payments made to BBA partnerships.

Proposed § 1.48D-6(b)(1) would provide the mandatory pre-filing registration process that, except as provided in guidance, a taxpayer must complete as a condition of, and prior to, any amount being treated as a payment against the tax imposed under § 1.48D-6(a)(1), or an amount paid to a partnership or S corporation pursuant to § 1.48D-6(d)(2)(ii)(A). A taxpayer would be required to use the pre-filing registration process to register each qualified investment in an advanced manufacturing facility. A taxpayer that does not obtain a registration number or report the registration number on its annual tax return with respect to an advanced manufacturing facility would be ineligible to receive any elective payment amount with respect to the amount of any section 48D credit determined with respect to that advanced manufacturing facility. However, completion of the pre-filing registration requirements and receipt of a registration number would not, by itself, mean that the taxpayer would be eligible to receive a payment with respect to the section 48D credits determined with respect to the advanced manufacturing facility.

The pre-filing registration requirements are proposed to be that a taxpayer:

(1) must complete the registration process electronically through the IRS electronic portal and in accordance with the instructions provided therein, unless otherwise provided in guidance;

(2) must satisfy the registration requirements and receive a registration number prior to making a section 48D(d)(1) elective payment election on the taxpayer's tax return for the taxable year at issue;

(3) is required to obtain a registration number for each qualified investment in an advanced manufacturing facility with respect to which a section 48D credit will be determined and for which the taxpayer wishes to make a section 48D(d)(1) elective payment election; and

(4) provide the specific information required to be provided as part of the pre-filing registration process. The provision of such information, which includes information about the taxpayer and about the qualified investment in an advanced manufacturing facility that would allow the IRS to prevent duplication, fraud, improper payments, or excessive payments under section 48D. For example, verifying information about the taxpayer would allow the IRS to mitigate the risk of fraud or improper payments to entities that are not eligible taxpayers. Information about the taxpayer's taxable year would allow the IRS to ensure that an elective payment election is timely made on the entity's annual tax return. Information about the advanced manufacturing facility, including its address and coordinates (longitude and latitude), supporting documentation, beginning of construction date, and placed in service date would allow the IRS to mitigate the risk of duplication, fraud, and improper payments for properties that are not advanced manufacturing facilities.

Proposed § 1.48D-6(b)(7)(i) provides that, after a taxpayer completes pre-filing registration with respect to each qualified investment in an advanced manufacturing facility with respect to which the taxpayer intends to elect a section 48D(d) elective payment election for the taxable year, the IRS will review the information provided and will issue a separate registration number for each qualified investment for which the taxpayer provided sufficient verifiable information.

Proposed § 1.48D-6(b)(7)(ii) would provide that a registration number is valid only for the taxable year for which it is obtained. Proposed § 1.48D-6(c)(7)(iii) would provide that, if an elective payment election will be made with respect to qualified investment in an advanced manufacturing facility for a taxable year for which a registration number under this section has been obtained for a prior taxable year, the taxpayer must renew the registration each subsequent year in accordance with applicable guidance, including attesting that all the facts previously provided are still correct or updating any facts that are relevant in calculating the amount of the section 48D credit. Proposed § 1.48D-6(b)(7)(iv) would provide that, if facts change with respect to the qualified investment in an advanced manufacturing facility for which a registration number has been previously obtained, the taxpayer must amend the registration to reflect these new facts. The regulations would provide, for example, that if the facility previously registered for an elective payment election undergoes a change of ownership (incident to a corporate reorganization or an asset sale) such that the new owner has a different employer identification number (EIN) than the owner who obtained the original registration, the original owner would be required to amend the original registration to disassociate its EIN from the advanced manufacturing facility and the new owner must submit an original registration (or if the new owner previously registered other advanced manufacturing facilities, must amend its original registration) to associate the new owner's EIN with the previously registered advanced manufacturing facility.

Lastly, proposed § 1.48D-6(b)(7)(v) would provide that the taxpayer would be required to include the registration number of the advanced manufacturing facility on the taxpayer's annual return for the taxable year for an election under proposed § 1.48D-6(a)(1). The IRS will treat an elective payment election as ineffective with respect to any section 48D credit determined with respect to the advanced manufacturing facility for which the taxpayer does not include a valid registration number on the annual tax return.

The corresponding temporary regulations under § 1.48D-6T(b) published in the Rules and Regulations section of this edition of the Federal Register , which are identical to those that would apply under proposed § 1.48D-6(b), apply to taxable years ending on or after June 21, 2023 and expire on June 12, 2026.

These proposed regulations amend the proposed rules relating to excessive payment and basis reduction and recapture under REG-120653-22 by adding examples of excessive payment, clarifying the basis reduction and recapture notice requirement and renumbering the affected paragraphs as § 1.48D-6(f) and (g), respectively.

Proposed § 1.48D-6(f)(4) provides an example of excessive payment, including the year in which the tax is imposed and the calculation of the additional 20 percent tax. The Treasury Department and the IRS request comments on whether additional guidance on excessive payments is needed.

Proposed § 1.48D-6(g)(1) would provide that rules similar to the rules of section 50(a) and (c) apply for purposes of section 48D. Proposed § 1.48D-6(g)(2)(i) provides that the adjusted basis of property generally must be reduced by the amount of the section 48D credit determined with respect to property for which the taxpayer has made an election under section 48D(d)(1). Proposed § 1.48D-6(g)(2)(ii) would provide a similar basis reduction rule for partnerships or S corporations making an election under section 48D(d)(1). Proposed § 1.48D-6(g)(2)(iii) would clarify the application of the basis adjustment rule under section 50(c)(5) to take into account adjustments made under proposed § 1.48D-6(e)(2)(ii) for partners and S corporation shareholders of such partnerships or S corporations.

Proposed § 1.48D-6(g)(3) would clarify that any reporting of recapture is made on the taxpayer's annual return in the manner prescribed by the IRS in any guidance. In addition, the excessive payment rules operate separately from the recapture rules. The excessive payment rules apply where the credit amount reported on the original credit source form by the taxpayer was excessive. Recapture of a tax credit occurs when the original tax credit reported would have been correct without the occurrence of a subsequent recapture event. Thus, recapture events under section 50(a) do not result in an excessive payment.

Proposed § 1.48D-6 is proposed to apply to taxable years ending on or after the date the Treasury decision adopting these regulations as final regulations is published in the Federal Register . Taxpayers may rely on these proposed regulations for elective payments of section 48D credit amounts after December 31, 2022, in taxable years ending before the date the Treasury decision adopting these regulations as final regulations is published in the Federal Register , provided the taxpayers follow the proposed regulations in their entirety and in a consistent manner with respect to all elections made under section 48D(d).

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (“PRA”) generally requires that a Federal agency obtain the approval of the Office of Management and Budget (OMB) before collecting information from the public, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

The collections of information in these proposed regulations contain reporting and recordkeeping requirements. The recordkeeping requirements mentioned within these proposed regulations are considered general tax records under § 1.6001-1(e). These records are required for the IRS to validate that taxpayers have met the regulatory requirements and are entitled to make an elective payment election. For PRA purposes, general tax records are already approved by OMB under 1545-0074 for individuals and 1545-0123 for business entities.

These proposed regulations also mention reporting requirements related to making elections as detailed in § 1.48D-6. These elections will be made by eligible taxpayers as part of filing a return (such as the appropriate Form 1040, Form 1120, Form 1120-S, or Form 1065), including filling out the relevant source credit form and completing the Form 3800. These forms are approved under 1545-0074 for individuals and 1545-0123 for business entities.

These proposed regulations also describe recapture procedures as detailed in proposed § 1.48D-6 that are required by section 48D(d)(5). The reporting of a recapture event will still be required to be reported using Form 4255, Recapture of Investment Credit. This form is approved under 1545-0074 for individuals and 1545-0123 for business entities. These proposed regulations are not changing or creating new collection requirements for recapture not already approved by OMB.

These proposed regulations mention the reporting requirements to complete pre-filing registration with the IRS to be able to make an elective payment election in proposed § 1.48D-6. For further information concerning the registration and where to submit comments on the collection of information and the accuracy of the estimated burden, and suggestions for reducing this burden, please refer to the preamble to the corresponding temporary regulations (T.D. 9975) published in the Rules and Regulations section of this issue of the Federal Register . For burden estimates associated with the pre-filing registration requirement as detailed in proposed § 1.48D-6, see the preamble to the corresponding temporary regulations. These proposed regulations are not changing or creating new collection requirements beyond the requirements that are being reviewed and approved by OMB under the temporary regulations.

In accordance with the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these proposed regulations will not have a significant economic impact on a substantial number of small entities. Although these temporary regulations may affect small entities, data are not readily available about the number of small entities affected. The economic impact of these proposed regulations is not likely to be significant. Section 1.48D-6T(b) implements the statutory authority granted by section 48D(d)(2)(E) that authorizes the IRS to require such information or registration as the Secretary deems necessary for purposes of preventing duplication, fraud, improper payments, or excessive payments. These proposed regulations will assist small entities wanting to make the elective payment election under section 48D(d). Notwithstanding this certification, the Treasury Department and the IRS welcome comments on the impact of these temporary regulations on small entities.

Pursuant to section 7805(f), these proposed regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

Section 202 of the Unfunded Mandate Reform Act of 1995 requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a State, local, or Tribal government, in the aggregate, or by the private sector, of $100 million in 1995 dollars (updated annually for inflation). These proposed regulations do not include any Federal mandate that may result in expenditures by State, local, or Tribal governments, or by the private sector in excess of that threshold.

Executive Order 13132 (Federalism) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on State and local governments, and is not required by statute, or preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. These proposed regulations do not have federalism implications and do not impose substantial, direct compliance costs on State and local governments or preempt State law within the meaning of the Executive order.

Pursuant to the Memorandum of Agreement, Review of Treasury Regulations under Executive Order 12866 (June 9, 2023), tax regulatory actions issued by the IRS are not subject to the requirements of section 6 of Executive Order 12866, as amended. Therefore, a regulatory impact assessment is not required.

Before these proposed amendments to the regulations are adopted as final regulations, consideration will be given to comments that are submitted timely to the IRS as prescribed in this preamble under the ADDRESSES section. The Treasury Department and the IRS request comments on all aspects of the proposed regulations. All comments will be made available at www.regulations.gov or upon request. Once submitted to the Federal eRulemaking Portal, comments cannot be edited or withdrawn.

Announcement 2023-16, 2023-20 I.R.B. 854 (May 15, 2023), provides that public hearings will be conducted in person, although the IRS will continue to provide a telephonic option for individuals who wish to attend or testify at a hearing by telephone. Any telephonic hearing will be made accessible to people with disabilities.

A public hearing has been scheduled for August 24, 2023, beginning at 10 a.m. ET, in the Auditorium at the Internal Revenue Building, 1111 Constitution Avenue NW, Washington, DC, unless no outlines are received by August 14, 2023. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts.

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to comment by telephone at the hearing must submit written or electronic comments and an outline of the topics to be discussed as well as the time to be devoted to each topic by August 14, 2023, as prescribed in the preamble under the ADDRESSES section. If no outline of the topics to be discussed at the hearing is received by August 14, 2023, the public hearing will be cancelled. If the public hearing is cancelled, a notice of cancellation of the public hearing will be published in the Federal Register .

A period of ten minutes will be allocated to each person for making comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available: (1) at the hearing, (2) at https://www.regulations.gov, search IRS and REG-105595-23, or (3) by emailing a request to publichearings@irs.gov. Please put “REG-105595-23 Agenda Request” in the subject line of the email.

Individuals who want to testify in person at the public hearing must send an email to publichearings@irs.gov to have your name added to the building access list. The subject line of the email must contain the regulation number REG-105595-23 and the language TESTIFY In Person. For example, the subject line may say: Request to TESTIFY In Person at Hearing for REG-105595-23.

Individuals who want to testify by telephone at the public hearing must send an email to publichearings@irs.gov to receive the telephone number and access code for the hearing. The subject line of the email must contain the regulation number REG-105595-23 and the language TESTIFY Telephonically. For example, the subject line may say: Request to TESTIFY Telephonically at Hearing for REG-105595-23.

Individuals who want to attend the public hearing in person without testifying must also send an email to publichearings@irs.gov to have your name added to the building access list. The subject line of the email must contain the regulation number REG-105595-23 and the language ATTEND In Person. For example, the subject line may say: Request to ATTEND Hearing In Person for REG-105595-23. Requests to attend the public hearing must be received by 5 p.m. EST on August 22, 2023.

Individuals who want to attend the public hearing by telephone without testifying must also send an email to publichearings@irs.gov to receive the telephone number and access code for the hearing. The subject line of the email must contain the regulation number REG-105595-23 and the language ATTEND Hearing Telephonically. For example, the subject line may say: Request to ATTEND Hearing Telephonically for REG-105595-23. Requests to attend the public hearing must be received by 5 p.m. EST on August 22, 2023.

Hearings will be made accessible to people with disabilities. To request special assistance during a hearing please contact the Publications and Regulations Branch of the Office of Associate Chief Counsel (Procedure and Administration) by sending an email to publichearings@irs.gov (preferred) or by telephone at (202) 317-6901 (not a toll-free number) at least August 21, 2023.

Guidance cited in this preamble is published in the Internal Revenue Bulletin and is available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at https://www.irs.gov.

The principal author of this proposed regulation is Lani M. Sinfield, Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. However, other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, the Treasury Department and the IRS propose to amend 26 CFR part 1 as follows:

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

On March 6, 2023, the Henderson Business and Community Council notified the Coast Guard that it will be conducting a fireworks display from 9:30 through 10 p.m. on July 29, 2023, for the Christmas in July Celebration. The fireworks are to be launched from a barge in Henderson Bay approximately 1500 yards north of the town boat ramp located on the southern shore of Henderson Harbor in Henderson Harbor, NY. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Buffalo (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a 140-yard radius of the barge.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 140-yard radius of the fireworks barge before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The COTP is proposing to establish a safety zone for certain waters of Henderson Harbor for annual reoccurrences of the fireworks display, which will be announced in the Federal Register . The safety zone would cover all navigable waters within 140-yards of a barge in Henderson Bay located approximately 1500-yards north of the town boat ramp located on the southern shore of Henderson Harbor in Henderson Harbor, NY. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled fireworks display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone which would impact a small designated area of Henderson Bay for less than 2 hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting 1.5 hours that would prohibit entry within 140 yards of a fireworks barge. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

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

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2023-0309 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

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

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

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

On November 22, 2016, DNREC submitted a revision to its SIP in response to a national finding of substantial inadequacy and SIP call published on June 12, 2015, which included certain provisions in the Delaware SIP related to excess emissions during SSM events.

On February 22, 2013, EPA issued a Federal Register notice of proposed rulemaking outlining EPA's policy at the time with respect to SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP provisions and explained how each one either did or did not comply with the CAA with regard to excess emission events. 1 For each SIP provision that EPA determined to be inconsistent with the CAA, EPA proposed to find that the existing SIP provision was substantially inadequate to meet CAA requirements and thus proposed to issue a SIP call under CAA section 110(k)(5). On September 17, 2014, EPA issued a document supplementing and revising what the Agency had previously proposed on February 22, 2013, in light of a D.C. Circuit decision that determined the CAA precludes authority of the EPA to create affirmative defense provisions applicable to private civil suits. EPA outlined its updated policy that affirmative defense SIP provisions are not consistent with CAA requirements. EPA proposed in the supplemental proposal document to apply its revised interpretation of the CAA to specific affirmative defense SIP provisions and proposed SIP calls for those provisions where appropriate. 2

On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” hereafter referred to as the “2015 SSM SIP Action.”  3 The 2015 SSM SIP Action clarified, restated, and updated EPA's interpretation that SSM exemption and affirmative defense SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP Action found that certain SIP provisions in 36 states were substantially inadequate to meet CAA requirements and issued a SIP call to those states to submit SIP revisions to address the inadequacies. EPA established an 18-month deadline by which the affected states had to submit such SIP revisions. States were required to submit corrective revisions to their SIPs in response to the SIP calls by November 22, 2016.

EPA issued a Memorandum in October 2020 (2020 Memorandum), which stated that certain provisions governing SSM periods in SIPs could be viewed as consistent with CAA requirements. 4 Importantly, the 2020 Memorandum stated that it “did not alter in any way the determinations made in the 2015 SSM SIP Action that identified specific state SIP provisions that were substantially inadequate to meet the requirements of the Act.” Accordingly, the 2020 Memorandum had no direct impact on the SIP call issued to Delaware in 2015. The 2020 Memorandum did, however, indicate EPA's intent at the time to review SIP calls that were issued in the 2015 SSM SIP Action to determine whether EPA should maintain, modify, or withdraw particular SIP calls through future agency actions.

On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 Memorandum and announced EPA's return to the policy articulated in the 2015 SSM SIP Action (2021 Memorandum). 5 As articulated in the 2021 Memorandum, SIP provisions that contain exemptions or affirmative defense provisions are not consistent with CAA requirements and, therefore, generally are not approvable if contained in a SIP submission. This policy approach is intended to ensure that all communities and populations, including overburdened communities, receive the full health and environmental protections provided by the CAA. 6 The 2021 Memorandum also retracted the prior statement from the 2020 Memorandum of EPA's plans to review and potentially modify or withdraw particular SIP calls. That statement no longer reflects EPA's intent. EPA intends to implement the principles laid out in the 2015 SSM SIP Action as the agency takes action on SIP submissions, including this SIP submittal provided in response to the 2015 SIP call.

With regard to the Delaware SIP, EPA's 2015 SSM SIP Action determined that the following regulations were substantially inadequate to meet CAA requirements: Title 7 of Delaware's Administrative Code (7 DE Admin. Code) 1104 Section (§ ) 1.5, 7 DE Admin. Code 1105 § 1.7, 7 DE Admin. Code 1108 § 1.2, 7 DE Admin. Code 1109 § 1.4, 7 DE Admin. Code 1114 § 1.3, 7 DE Admin. Code 1124 § 1.4 and 7 DE Admin. Code 1142 § 2.3.1.6. 7 These provisions provide a state official with the discretion, through the permitting process, to exempt sources from otherwise applicable SIP emission limitations or to set alternative limitations for periods of startup and shutdown. The rationale underlying EPA's determination that these provisions were substantially inadequate to meet CAA requirements, and therefore to issue a SIP call to Delaware to remedy the provisions, is detailed in the 2015 SSM SIP Action and the 2013 proposed SSM SIP Action. 8

Delaware submitted a SIP revision on November 22, 2016, in response to the SIP call issued in the 2015 SSM SIP Action. In addition to addressing deficiencies identified in 7 DE Admin. Code 1104, 1105, 1109 and 1114, Delaware's submission noted that the deficiency highlighted in 7 DE Admin. Code 1108 § 1.2 was corrected by a previous SIP revision, which was submitted to EPA on July 10, 2013. A final rulemaking which acted on this 2013 submission and remedied 7 DE Admin. Code 1108 § 1.2 published in the Federal Register on July 11, 2022. 9 Delaware's submission also requested that EPA revise the Delaware SIP by removing 7 DE Admin. Code 1124 § 1.4 and 7 DE Admin. Code 1142 § 2.3.1.6 in their entirety, thereby removing these provisions, and their deficiencies, from the Delaware SIP. A final rulemaking which remedied 7 DE Admin. Code 1124 § 1.4 and 7 DE Admin. Code 1142 § 2.3.1.6 published in the Federal Register on February 14, 2023. 10

Lastly, Delaware's submission requested that EPA revise the SIP to address the deficiencies identified in the following regulations: 7 DE Admin. Code 1104 § 1.5, 7 DE Admin. Code 1105 § 1.7, 7 DE Admin. Code 1109 § 1.4, and 7 DE Admin. Code 1114 § 1.3. Through this proposed rulemaking, EPA will be acting on these remaining provisions that were identified as deficient in the 2015 SSM SIP Action.

EPA has identified several significant concerns with Delaware's revisions to 7 DE Admin. Code 1104 § 1.5, 7 DE Admin. Code 1105 § 1.7, 7 DE Admin. Code 1109 § 1.4, and 7 DE Admin. Code 1114 § 1.3, which suggest that those parts of the 2016 SIP submission cannot be approved. Delaware's revisions to these sections in the SIP submission and EPA's corresponding analysis are summarized below. An underline/strikeout version of each regulation, showing the changes to the regulations or the changes requested to the Delaware SIP, is included in the docket for this rulemaking. 11

The 2015 SSM SIP Action cited 7 DE Admin. Code 1104 (Particulate Emissions from Fuel Burning Equipment) § 1.5 because it provides a potential exemption from the emission limit in 7 DE Admin. Code 1104 § 2.1. The emission limit in 7 DE Admin. Code 1104 § 2.1 currently contained in the EPA-approved SIP says, “no person shall cause or allow the emission of particulate matter in excess of 0.3 pound per million British Thermal Units (lb/MMBTU) heat input, maximum two-hour average.” Section 1.5 creates a potential exemption to this limit during start-up or shutdown events by stating, “The provisions of this Regulation shall not apply to the start-up and shutdown of equipment which operates continuously or in an extended steady state when emissions from such equipment during start-up and shutdown are governed by an operation permit issued pursuant to the provisions of 2.0 of 7 DE Admin. Code 1102.” Delaware's SIP submission asked EPA to remove § 1.5 and § 2.1 of 7 DE Admin. Code 1104 from the EPA-approved Delaware SIP, but these provisions would remain in the Delaware regulations. In addition, Delaware revised 7 DE Admin. Code 1104 by adding a new section, § 2.2, which states, “[n]o person shall cause or allow the emission of particulate matter in excess of 0.3 pound per million BTU heat input, maximum 30-day rolling average, from any fuel burning equipment.” The SIP submission asked EPA to approve this new § 2.2 into the Delaware SIP. While Delaware requested to remove § 1.5, which contains the potential emission limit exemption during start-up and shutdown, from the EPA-approved SIP, the State also increased the two-hour averaging time found in § 2.1 to 30 days while keeping the same 0.3 lb/MMBTU limit. Thus, the EPA-approved SIP would have a 0.3 lb/MMBTU 30-day rolling average limit, as set forth in the new § 2.2, while Delaware's regulations would have both a limit of 0.3 lb/MMBTU two-hour average in § 2.1, which could be changed for startup and shutdown purposes via § 1.5, and a 0.3 lb/MMBTU 30-day rolling average limit in § 2.2 that could not be changed via § 1.5.

The 2015 SSM SIP Action also highlighted 7 DE Admin. Code 1105 (Particulate Emissions from Industrial Process Operations) § 1.7 because it provides a potential exemption from the emission limit in 7 DE Admin. Code 1105 § 2.1. The emission limit in 7 DE Admin. Code 1105 § 2.1 currently contained in the EPA-approved SIP says, “No person shall cause or allow particulate emissions into the atmosphere from any source not provided for in subsequent sections of this Regulation in excess of 0.2 grains per standard cubic foot.” Section 1.7 creates a potential exemption to this limit by stating, “The provisions of this Regulation shall not apply to the start-up and shutdown of equipment which operates continuously or in an extended steady state when emissions from such equipment during start-up and shutdown are governed by an operation permit issued pursuant to the provisions of 2.0 of 7 DE Admin. Code 1102.” Delaware revised 7 DE Admin. Code 1105 by adding a new section, § 2.2, which added an emission limit of 0.2 grains per standard cubic foot on a 30-day rolling average basis. Delaware's SIP submission asked EPA to remove § 1.7 and § 2.1 from the EPA-approved SIP, but these provisions would remain in the Delaware regulations. Delaware's submission also asked EPA to approve the new § 2.2 into the SIP. Again, although Delaware requested to remove § 1.7, which contained the exemption identified in the 2015 SSM SIP Action, the State also asked EPA to approve into the SIP a newly created limit in § 2.2 which adds an averaging period of 30 days to the existing 0.2 grains per cubic foot limit. Delaware does not explain how these differing emission limits in § 2.1 and § 2.2 would be reconciled.

Delaware explained that the increases in averaging times provide the opportunity for any source subject to these limits to compensate for higher emission rates during startup or shutdown events by emitting at lower rates during normal operations, so long as continuous compliance is demonstrated on a 30-day rolling average basis.

However, Delaware's increases in the averaging times for the particulate emission limits found in 7 DE Admin. Code 1104 and 1105 were not supported by a sufficient analysis explaining why these changes meet the requirements of section 110(l) of the CAA. The 2015 SSM SIP Action did not provide an opportunity for averaging times to be increased with no explanation or analysis of how the increased averaging time would or would not affect the national ambient air quality standards (NAAQS). In response to a comment regarding opacity, EPA noted in the 2015 SSM SIP Action that the removal of impermissible SSM exemptions should not be perceived as an opportunity to provide new de facto exemptions for these emissions by manipulation of the averaging time and the numerical level of existing opacity emission limitations. 12 This reasoning is not exclusive to opacity limitations, and also applies to the SIP-approved particulate limit 30-day rolling averaging times that Delaware has added to 7 De Admin. Code 1104 and 1105. During Delaware's public comment period on these regulatory changes, EPA submitted comments raising this and other concerns. 13 EPA noted that Delaware did not address whether changes to the averaging period might affect the emissions of any criteria pollutant and recommended a more robust explanation and analysis be provided to support Delaware's conclusion in order to meet the requirements of section 110(l) of the CAA. The State responded to EPA's comments during the state regulatory comment period with minimal data to assert that the long-term average of emissions would be slightly lower with the implementation of the revised limit. The State also explained these limits were originally intended to protect the total suspended particulate (TSP) NAAQS. However, the particulate matter (PM) NAAQS replaced the TSP standard. 14 Therefore, these limits still play a role in protecting the existing PM NAAQS. Although Delaware is currently attaining the PM standards, 15 the State did not explain how this 30-day rolling average longer-term limit is still protective of the short-term NAAQS, such as the 24-hour PM standard. Delaware's response to EPA's comments did not adequately explain how the increased averaging time of the 30-day rolling average limits, without decreasing the limit itself, would be protective of the PM NAAQS, and instead noted, with minimal explanation, that this would not result in any increase in emissions on a tons per year basis. Delaware explained this using two scenarios. In the first scenario, Delaware referred to the emissions limits and startup/shut down exemptions that are currently SIP-approved. Delaware stated that if all steady-state hours of operation emit exactly at, or very near, the emissions limit, and emissions during startup/shut down events are exempt, then the long-term average of emissions would be slightly higher than the emission limit. In scenario two, they noted with the new 30-day rolling average limits and no exemptions for start-up or shut down events, emissions occurring during SSM events would have to be offset by emissions lower than the 30-day average emission limit during non-SSM operation. Delaware asserted, without any further explanation, that this would result in the long-term average of emissions to be no more than the 30-day average emission limit. Delaware explained, with respect to annual emissions, the emissions calculation in scenario two is less than the emissions in scenario one. Therefore, Delaware believes this change is SIP strengthening.

EPA does not agree that the evaluation of the impacts of changing the averaging period for an emissions limit enacted to ensure the NAAQS is attained and protected can be limited only to consideration of emissions on an annual basis. The potential short-term effect of a sharp increase in particulate emissions during a startup or shutdown event on a shorter-term NAAQS limit, such as the PM 10 24-hour standard, need to be examined and explained. Therefore, EPA does not consider the State's explanation of why the longer 30-day averaging period with the same emission limit are adequate to ensure continued attainment of the NAAQS. EPA's comments and Delaware's response can be found in the docket for this action.

Under CAA section 110(l), EPA cannot approve a plan revision “if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 7501 of [title 42]), or any other applicable requirement of this chapter.”  16 The nature of the technical demonstration needed under section 110(l) to support approval of a SIP revision depends on the facts and circumstances of the SIP revision at issue. Based on the information available to EPA, EPA concluded that approval of these longer-term limits for a shorter-term NAAQS would not be consistent with the requirements of section 110(l). For EPA's analysis to address CAA section 110(l), EPA requested information from the State, but the State did not respond with the appropriate information. At a minimum, Delaware should have explained how this change would not impact maintenance of the PM NAAQS, as well as explain how this change meets the applicable legal requirements of the CAA, including both sections 110(l) and 193, as EPA suggested in their comments during Delaware's public comment period. Additionally, the submittal lacks an explanation of the maximum daily emissions that could occur with the new averaging time. There is also no information regarding the likely frequency of startup and shutdown events, the likely magnitude of emissions during these events, and how many such events it would take in a 30-day period to exceed the new 30-day average. This information is relevant because it could be that one large startup or shutdown event with significant PM emissions could cause an exceedance of the PM NAAQS at a monitor. More frequent SSM events under a 30-day averaging period can cause the short-term emissions to increase, with a deleterious effect on shorter-term NAAQS. There is no explanation of how the NAAQS will continue to be protected with the new, longer averaging period.

Replacement SIP provisions should have averaging periods that are logically related to the NAAQS at issue. The 2015 SSM SIP Action notes, “For example, if a state chooses to modify averaging times in an emission limitation to account for higher emissions during startup and shutdown, the state would need to consider and demonstrate to the EPA how the variability of emissions over that averaging period might affect attainment and maintenance of a NAAQS with a short averaging period ( e.g., how a 30-day averaging period for emissions can ensure attainment of an 8-hour NAAQS).” (80 FR 33840, 33947 (June 12, 2015)). Delaware has not explained how the 30-day average is reasonably related to the 24-hour PM NAAQS. The 2015 SSM SIP Action also notes that in some cases, extension of the averaging period and elevation of the numerical limitations may in fact be appropriate. In other cases, however, it may instead be appropriate to reduce the existing numerical opacity limitations, given improvements in control technology since the original imposition of the limits. 17 In either scenario, the appropriate analysis and justification is needed, such as specific calculations, including emissions distributions for sources in the state, backed up by operating data, that shows an extension of the averaging period would not violate the NAAQS. EPA has explained, for the sulfur dioxide (SO 2 ) NAAQS, how an increase in the averaging period for SO 2 emission limits beyond the 8-hour standard used for the SO 2 NAAQS could be protective of the eight-hour SO 2 NAAQS. EPA's 2014 SO 2 Nonattainment Guidance recommends that the emission limits be expressed as short-term averages, but also describes the option to use emission limits with longer averaging times of up to 30 days so long as the state meets various suggested criteria. 18 The guidance recommends that—should states and sources utilize longer averaging times—the longer-term average limit should be set at an adjusted level that reflects a stringency comparable to the 1-hour average limit at the critical emission value (CEV) shown to provide for attainment that the plan otherwise would have set. 19 To preserve comparable stringency, it would be expected that adjusting the level would result in a lowering of the emission rate if lengthening the averaging time. In cases where longer-term average limits are appropriate, EPA envisions that both the short-term and longer-term limits in practice would require similar emission control levels and would commonly result in similar emission patterns. 20 Therefore, a longer averaging time can be appropriate to protect a shorter-term NAAQS but would require an in-depth analysis of what adjusted downward level would provide a comparable stringency. Delaware did not lower their emissions limit when increasing the averaging time, nor did they provide an in-depth analysis explaining how the same emission limit with a 30-day rolling averaging period is comparable in stringency to the same emission limit with a shorter, 3-hour averaging period previously found in their EPA-approved SIP.

To support their adoption of a 30-day averaging period, Delaware's response to comments cited page 2 of EPA's 1984 guidance memo, entitled “Averaging Times for Compliance with VOC Emission Limits—SIP Revision Policy,”  21 which states “Averaging periods must be as short as practicable and in no case longer than 30 days.” However, in the same memo, EPA specifically states that a demonstration must be made to show the use of long-term averaging will not jeopardize the NAAQS. 22 Though this guidance is geared towards volatile organic compounds (VOCs), the idea that retention of the same limit with a longer-term averaging period requires some demonstration explaining how the longer-term averaging time would not affect the NAAQS is applicable to the PM NAAQS too.

It is also important to recognize the broadness of the source categories for these two regulations—fuel burning equipment and industrial process operations. Given the broadness of these categories, significant consideration should be given to how a 30-day averaging period would even apply to the sources falling in these categories, especially the smaller source categories that do not operate regularly, such as emergency generators. The State's submittal also lacks an explanation of the type and number of Delaware sources which might be subject to these two regulations, and how the change in averaging time might affect their emissions and thus affect the NAAQS. Additional explanation is required to explain how the revisions would impact the sources subject to these regulations, and how these impacts would be unlikely to affect the NAAQS.

Lastly, Delaware noted that the emission limits that were highlighted in the 2015 SSM SIP Action would remain in the Delaware state regulations. Therefore, these short-term limits, along with the exemptions, are still applicable as a matter of state law only. According to Delaware, because the short-term limits are still effective at the state level, there is no change in the status quo of emissions, and this means air quality may remain unaffected. However, this is still problematic for several reasons. First, EPA cannot rely on state-only provisions when evaluating SIP submissions for compliance with CAA requirements. Presumably, Delaware asked that these emission limits be placed into the SIP because they were necessary to attain or maintain the NAAQS, and as discussed above, the effect on the NAAQS of replacing these shorter-term average SIP limits with longer-term averaging limits on attainment or maintenance of the NAAQS is not adequately explained. Second, removing the shorter-term emission limits from the EPA-approved SIP but keeping them in the state regulation, while also keeping the possibility for a state issued startup or shutdown exemption from these limits, creates the possibility that the current status quo of PM emissions may not be maintained. And, because the shorter-term emission limit is no longer in the SIP, neither EPA nor citizens can enforce the shorter-term limit under CAA sections 113 and 304. In effect, Delaware could grant an exemption to emission limits which might be necessary to attain or maintain the NAAQS without going through the SIP revision process required by the CAA.

The concerns stated above suggest that the revisions to 7 DE Admin. Code 1104, Particulate Emissions from Fuel Burning Equipment, and 7 DE Admin. Code 1105, Particulate Emissions from Industrial Process Operations, cannot be approved. Further justification and information from the State is required to explain that these changes would not be inconsistent with CAA section 110(l), as well as explain how this change meets the applicable legal requirements of the CAA, including CAA section 193.

The 2015 SSM SIP Action included 7 DE Admin. Code 1109 (Emissions of Sulfur Compounds From Industrial Operations) § 1.4 because it provides a potential exemption from the emission limitations during startup and shutdown when the emissions during startup and shutdown are governed by an operation permit issued pursuant to § 2.0 of 7 DE Admin. Code 1102. Delaware's SIP revision requests that the EPA remove 7 DE Admin. Code 1109 in its entirety from the Delaware SIP but retains this regulation, including the startup and shutdown exemption, at the state level. Delaware asserts that existing Federal requirements, such as the New Source Performance Standards (NSPS) adopted pursuant to CAA section 111, are adequate to ensure Delaware's maintenance of the sulfur-related NAAQS, 23 which Delaware is currently attaining. 24 Delaware believes that removal of this regulation from the SIP, but retention of the regulation at the state level, will not result in any increase in emissions on a ton per year basis, and that this revision comports with the EPA's interpretation of the CAA and is consistent with the EPA's approach for attainment and maintenance of all NAAQS.

The 2015 SSM SIP Action included 7 DE Admin. Code 1114 (Visible Emissions), § 1.3, because it provides a similar exemption from the visible emission (VE) limits during startup and shutdown when such emissions are governed by an operation permit issued pursuant to § 2.0 of 7 DE Admin. Code 1102. Delaware's SIP revision requests that the EPA remove 7 DE Admin. Code 1114 in its entirety from the Delaware SIP but retains this regulation, including the exemption, in the state regulations. The State asserts that existing Federal requirements, such as the New Source Performance Standards (NSPS), regulate visible emissions from certain sources, while two other Delaware SIP regulations that regulate fine particulate matter and fine particulate matter precursors (7 DE Admin. Code 1108 and 1146) when combined with the NSPS, are adequate to ensure Delaware's attainment and maintenance of any particulate-related NAAQS. In addition, Delaware argues that there is no quantifiable relationship between visible emissions and fine particulate matter emissions. Delaware believes that removal of this regulation from the SIP will not result in any increase in emissions on a ton per year basis, and that because this revision removes from the SIP a provision allowing for excess emissions, the change therefore comports with the EPA's interpretation of the CAA and is consistent with the EPA's approach for attainment and maintenance of all NAAQS. Delaware's response provides no other explanation regarding how the revisions comply with the CAA.

To address CAA section 110(l), EPA believes it needs more information and analysis from the State to support EPA's approval of the removal of these two regulations from the Delaware SIP while keeping the regulations at the state level. Section 110(l) prohibits approval of a SIP revision if it would interfere with attainment or any other applicable requirement. Delaware's SIP revision merely states that the removal of this regulation from the SIP will not result in any increase in emissions on a ton per year basis but provides no further explanation or any technical demonstration to support this assertion, and EPA does not have information available that would support this conclusion. To support an approval decision that would be consistent with section 110(l), Delaware should have provided information demonstrating that these changes would not impact maintenance of the NAAQS, as well as explain how this change meets the applicable legal requirements of the CAA, including section 193. During the state public comment period on this SIP revision, EPA submitted comments to Delaware raising these concerns. 25 EPA's comments and Delaware's response can be found in the docket for this action.

Despite EPA's comments, Delaware's SIP revision did not include an analysis to address CAA section 110(l). Instead, in regard, to 7 DE Admin. Code 1109, the State responded that the sources' reliance on the NSPS is enough to protect the NAAQS. Specifically, Delaware noted there are two facilities in the state currently subject to 7 DE Admin Code 1109—the Chemours Red Lion sulfuric acid plant and the Delaware City Refinery—and that each facility is subject to a more stringent NSPS. The Chemours Red Lion sulfuric acid plant is subject to 40 CFR part 60, subpart H, and the Delaware City Refinery is subject to 40 CFR part 60, subpart J. However, both subparts H and J allow for periods of excess emissions. The provisions at 40 CFR part 60, subpart A, General Provisions, are applicable to sources subject to 40 CFR part 60, subparts H and J. Subpart A of 40 CFR part 60 contains exemptions in both 40 CFR 60.8(c)and 60.11(c) . The provisions at 40 CFR 60.11(c) note “The opacity standards set forth in this part shall apply at all times except during periods of startup, shutdown, malfunction, and as otherwise provided in the applicable standard.” While 40 CFR 60.8(c), states “Operations during periods of startup, shutdown, and malfunction shall not constitute representative conditions for the purpose of a performance test nor shall emissions in excess of the level of the applicable emission limit during periods of startup, shutdown, and malfunction be considered a violation of the applicable emission limit unless otherwise specified in the applicable standard.” Reliance on these NSPS, which include excess emission exemptions, is problematic in some cases for multiple reasons.

EPA acknowledges that many of the existing NSPS still contain exemptions from emission limitations during periods of SSM. The exemptions in these EPA regulations, however, predate the 2008 issuance of the D.C. Circuit decision in Sierra Club v. Johnson, in which the court held that emission limitations must be continuous and thus cannot contain exemptions for emissions during SSM events. 26 Since the 2008 Sierra Club decision, EPA has been working to remove or revise these SSM provisions as NSPS are reviewed. 27 Thus, some NSPS have been revised to address the 2008 Sierra Club decision, but some have not, and Delaware's sources may be subject to not-yet-updated standards. Despite the fact that EPA has not completed its work removing SSM provisions from every NSPS, the Agency is not willing to approve the removal of SIP approved regulations containing potential startup and shutdown exemptions, on the basis that affected sources would instead be subject to NSPS that also contain SSM exemptions.

Regarding 7 DE Admin Code 1114, the State responded to EPA's comment by noting that there is no discernable relationship between opacity and fine particulate matter emissions, and therefore this regulation cannot be relied on to prevent a source from impacting the NAAQS. EPA assumes Delaware meant that PM 2.5 cannot be seen as visible emissions because PM 2.5 is formed after leaving the stack or other source from the precursor emissions of nitrogen oxides (NO X ), VOCs, SO 2 , and ammonia. However, PM 10 can be seen as visible emissions, and the observation of unusual levels of visible emissions could be an indication of a malfunction in the source itself or a pollution control device which may result in increased emissions of one or more of PM 2.5 precursors. Thus, Delaware's existing opacity limits may be a warning sign of potential increases in the precursor pollutants contributing to PM 2.5 , and therefore may play a role in preventing PM 2.5 NAAQS exceedances.

Delaware also cites to two other SIP approved regulations, 7 DE Admin. Code 1108 Sulfur Dioxide Emissions from Fuel Burning Equipment, and 7 DE Admin. Code 1146 EGU Multi-Pollutant Regulation, as being adequate to protect the PM NAAQS, along with unidentified NSPS, but does not adequately explain how these regulations or the NSPS control emissions of PM 2.5 precursors during VE events. In addition, the State still did not provide an explanation of the number and type of Delaware sources subject to 7 DE Admin. Code 1114, how removing this regulation from the Delaware SIP but retaining it as a state regulation with the potential startup and shutdown exemption would affect their emissions and thus affect the NAAQS, and how the Delaware SIP would remain protective of the NAAQS. Further justification is required to explain that this change will not impact attainment and maintenance of the NAAQS, as well as explain how this change meets the applicable legal requirements of the CAA, including CAA section 193.

Lastly, Delaware noted that these regulations that were highlighted in the 2015 SSM SIP Action (1109 and 1114) would be retained at the state level. These state regulations allow Delaware to issue case-by-case permits via 7 DE Admin. Code 1102 to address emissions during startup and shutdown events. Therefore, Delaware would be relying on their own permits to regulate emissions during startup and shutdown events to protect the NAAQS during these periods. Because these regulations (1109 and 1114) provide a potential exemption from the emission limitations during startup and shutdown when the emissions during startup and shutdown are governed by a section 1102 operation permit, but would no longer be in the SIP, neither EPA nor citizens would be able to enforce this alternative limit for startup or shutdown under CAA sections 113 and 304. In effect, Delaware could grant an exemption to formerly federally enforceable emission limits which might be necessary to attain or maintain the NAAQS without justifying these revisions by going through the SIP revision process required by the CAA.

The concerns stated above suggest that the revisions to the Delaware SIP requesting removal of 7 DE Admin. Code 1109, Emissions of Sulfur Compounds From Industrial Operations, and 7 DE Admin. Code 1114, Visible Emissions, from the SIP cannot be approved.

EPA's review of this material indicates Delaware did not provide adequate justification to support the revisions to Delaware's SIP pertaining to 7 DE Admin. Code 1104, 1105, 1109 and 1114 requested in their 2016 SIP submission. Further justification is required to explain that these changes will not impact maintenance of the PM and SO 2 NAAQS. EPA is proposing to disapprove the portion of Delaware's November 22, 2016, SIP submission addressing 7 DE Admin. Code 1104 § 1.5, 7 DE Admin. Code 1105 § 1.7, 7 DE Admin. Code 1109 § 1.4, and 7 DE Admin. Code 1114 § 1.3. EPA is not reopening the 2015 SSM SIP Action and is only taking comment on the issues discussed in this document. These comments will be considered before taking final action.

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

This action is not a “significant regulatory action” as defined by Executive Order 12866 and was therefore not submitted to the Office of Management and Budget for review.

This proposed action does not impose an information collection burden under the PRA because it does not contain any information collection activities.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action merely proposes to disapprove a SIP submission as not meeting the CAA.

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

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175. This action does not apply on any Indian reservation land, any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, or non-reservation areas of Indian country. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it merely proposes to disapprove a SIP submission as not meeting the CAA.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to review state choices, and approve those choices if they meet the minimum criteria of the Act. Accordingly, this proposed action disapproves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law.

The air agency did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples. This action merely proposes to disapprove a SIP submission as not meeting the CAA.

This is a summary of the Commission's Further Notice of Proposed Rulemaking (FNPRM), FCC 23-29, adopted April 20, 2023, and released April 21, 2023. The full text is available online at https://docs.fcc.gov/public/attachments/FCC-23-29A1.pdf. To request materials in accessible formats for people with disabilities, send an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Interested parties may file comments and reply comments on or before the dates indicated in the DATES section above. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).

• Electronic Filers. Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs.

• Paper Filers. Parties who file by paper must include an original and one copy of each filing.

○ Filings may be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

○ Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.

○ Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020), https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.

• People with Disabilities. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), or to request reasonable accommodations for filing comments (accessible format documents, sign language interpreters, CART, etc.), send an email to FCC504@fcc.gov or call 202-418-0530 (voice) or 202-418-0432 (TTY).

Pursuant to 47 CFR 1.1200(a), this proceeding will be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with 47 CFR 1.1206(b). In proceedings governed by 47 CFR 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” We have prepared an Initial Regulatory Flexibility Analysis (IRFA) concerning the potential impact of the rule and policy changes contained in the FNPRM. The IRFA is set forth in Section IV below. Written public comments are requested on the IRFA. Comments must be filed by the deadlines for comments on the FNPRM indicated on the first page of this document and must have a separate and distinct heading designating them as responses to the IRFA.

This document contains proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

1. In this document, we seek comment on revisions to the Commission's rules governing spectrum sharing among a new generation of broadband satellite constellations to promote market entry, regulatory certainty, and spectrum efficiency through good-faith coordination. Specifically, we seek comment on which metrics should be used to define the protection afforded to an earlier-round NGSO FSS system from a later-round system, including the implementation of a degraded throughput methodology. This document will continue the Commission's efforts to promote development and competition in broadband NGSO satellite services made possible by the new space age.

2. This proceeding continues the Commission's recent efforts to update and refine its rules governing NGSO FSS systems. Constellations of NGSO FSS satellites traveling in low- and medium-Earth orbit may provide broadband services to industry, enterprise, and residential customers with lower latency and wider coverage than has previously been available via satellite. The number of applications filed in recent years for NGSO FSS system authorizations, and the number of satellites launched, are unprecedented.

3. Processing Round Procedure Overview. Applications for NGSO FSS system licenses and petitions for declaratory ruling seeking U.S. market access for non-U.S.-licensed NGSO FSS systems are considered in groups based on filing date, under a processing round procedure. Pursuant to the Commission's rules, a license application for “NGSO-like” satellite operation, including operation of an NGSO FSS system, that satisfies the acceptability for filing requirements is reviewed to determine whether it is a “competing application” or a “lead application.” A competing application is one filed in response to a public notice initiating a processing round. Any other application is a lead application. Competing applications are placed on public notice to provide interested parties an opportunity to file pleadings in response to the application. Lead applications are also placed on public notice. The public notice for a lead application initiates a processing round, establishes a cut-off date for competing NGSO-like satellite system applications, and provides interested parties an opportunity to file pleadings in response to the application.

4. The Commission reviews each application in the processing round and all the pleadings filed in response to each application. Based upon this review and consideration of such other matters as it may officially notice, the Commission will grant all the applications for which the Commission finds that the applicant is legally, technically, and otherwise qualified, that the proposed facilities and operations comply with all applicable rules, regulations, and policies, and that grant of the application will serve the public interest, convenience and necessity. The Commission will deny the other applications.

5. In the Report and Order in FCC 23-29, we adopt a requirement that, prior to commencing operations, an NGSO FSS licensee or market access recipient must either certify that it has completed a coordination agreement with any operational NGSO FSS system licensed or granted U.S. market access in an earlier processing round, or submit a showing for Commission approval that it will not cause harmful interference to any such system with which coordination has not been completed using a degraded throughput methodology. In this FNPRM, we propose to finalize the details of the degraded throughput methodology and invite specific comment on the appropriate values and assumptions to be used in this requirement and whether we should adopt a rule limiting aggregate interference from later-round NGSO FSS systems into earlier-round systems.

6. We expect that the degraded throughput analysis should consist of three steps. The first step is to establish a baseline of performance. To do this, an operator models the earlier-round NGSO system's performance without any additional interference by computing the earlier-round NGSO system's probabilistic C/N level using its published system parameters and a rain-attenuation model. This provides the baseline in terms of: (1) the earlier-round system's time-weighted average throughput (derived by computing the spectral efficiency from the C/N results), and (2) the earlier-round system's link unavailability time percentage ( i.e., the percentage of time when the earlier-round system's expected C/N will fall below its minimum usable level). The second step is to repeat the analysis above, adding in the effect of the later-round system's interference into the earlier-round system. This produces a second measurement of time-weighted average throughput and link unavailability time-percentage. The third step is to compare these two sets of figures to measure the effect of any additional interference. If the resulting performance impact exceeds the permissible limits, then the later-round system must adjust its operations to mitigate interference to a permissible level. We seek comment on this process.

7. Specifically, noting that 3% has been suggested as an appropriate value for several aspects of the degraded throughput analysis, we invite comment on the appropriate values for these limits, including their technical justification. What is the appropriate baseline to consider for the earlier-round system, and should it include existing sources of interference, such as interference from GSO networks or intra-system interference? Should a degraded throughput methodology compare an incumbent's baseline level of performance given only natural degradation to that same incumbent's expected performance given a single new entrant's operations? Should we use standardized antenna patterns and noise temperatures for the computation of C/(I+N) in a degraded throughput method? A degraded throughput methodology would rely on detailed technical data about the relevant NGSO FSS systems. How many locations should be evaluated in the methodology, and should the locations include sites outside the United States? How should rain fade conditions in different locations be incorporated into the degraded throughput analysis? What other technical data is needed to appropriately evaluate degraded throughput effects, and how can the Commission ensure that any degraded throughput analysis appropriately protects the specific characteristics of an NGSO system's operations? What role should Schedule S information play in the analysis? Are additional means needed to protect earlier-round systems against loss of synchronization due to potentially high levels of short term interference? Should the earlier-round operator be able to specify two C/N objectives—one relative to the C/N level below which the victim modem would lose lock and another relative to the C/N level below which the victim link would become unavailable because it is not able to offer the minimum wanted throughput? What mitigation techniques would be appropriate if degraded throughput thresholds were not otherwise satisfied?

8. We also note concerns on the record about aggregate interference from multiple NGSO systems. What is a permissible aggregate interference level for protecting priority NGSO systems in a frequency band, as part of an earlier processing round? Should we expect that there will be a maximum number of NGSO FSS systems that can be accommodated in a given frequency band and if so, how should that affect any inter-round protection criteria and the opening of additional processing rounds? How does this methodology accommodate multiple NGSO systems that span multiple processing rounds?

9. Additionally, we seek comment on what criteria should be applied among NGSO systems after the sunset period. We recognize that our default spectrum splitting process is intended to encourage negotiation between systems in the same processing round. Should that also be the default procedure applicable between systems after the sunsetting of interference protection in order to facilitate coordination, or is there an alternative better suited to systems that may be at different stages of deployment? We seek comment on the fit of the default spectrum splitting process to the post-sunset environment. What does co-equal mean when there are established operators on a co-equal basis with newer entrants?

10. Digital Equity and Inclusion. Finally, the Commission, as part of its continuing effort to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations and benefits (if any) that may be associated with the proposals and issues discussed herein. Specifically, we seek comment on how our proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well the scope of the Commission's relevant legal authority.

11. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Further Notice of Proposed Rulemaking (FNPRM). The Commission requests written public comments on this IRFA. Commenters must identify their comments as responses to the IRFA and must file the comments by the deadlines provided in the DATES section above and as instructed under Comment Filing Requirements above. The Commission will send a copy of the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the FNPRM and IRFA (or summaries thereof) will be published in the Federal Register .

12. In recent years, the Commission has received an unprecedented number of applications for non-geostationary satellite orbit (NGSO) space station licenses, including for NGSO fixed-satellite service (FSS) systems. Traveling closer to the Earth than a traditional geostationary-satellite orbit (GSO) satellite, low- and medium-orbit NGSO FSS satellite constellations are capable of providing broadband services to industry, enterprise, and residential customers with lower latency and wider coverage than was previously available via satellite. This rulemaking continues to facilitate the deployment of NGSO FSS systems capable of providing broadband and other services on a global basis, and will promote competition among NGSO FSS system proponents, including the market entry of new competitors.

13. This FNPRM seeks public comment on proposed revisions to the Commission's rules governing the treatment NGSO FSS systems filed in different space station processing rounds. Specifically, this FNPRM seeks comment on details regarding the implementation of a degraded throughput methodology. It also seeks comment on what criteria should be applied among NGSO systems after the sunset period.

14. The proposed action is authorized under sections 4(i), 7(a), 303, 308(b), and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 303, 308(b), 316.

15. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

16. Satellite Telecommunications. This industry comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operators. The SBA small business size standard for this industry classifies a business with $35 million or less in annual receipts as small. U.S. Census Bureau data for 2017 show that 275 firms in this industry operated for the entire year. Of this number, 242 firms had revenue of less than $25 million. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 71 providers that reported they were engaged in the provision of satellite telecommunications services. Of these providers, the Commission estimates that approximately 48 providers have 1,500 or fewer employees. Consequently using the SBA's small business size standard, a little more than half of these providers can be considered small entities.

17. All Other Telecommunications. The “All Other Telecommunications” category is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The SBA has developed a small business size standard for “All Other Telecommunications”, which consists of all such firms with annual receipts of $35 million or less. For this category, U.S. Census Bureau data for 2012 show that there were 1,442 firms that operated for the entire year. Of those firms, a total of 1,400 had annual receipts less than $25 million and 15 firms had annual receipts of $25 million to $49, 999,999. Thus, the Commission estimates that the majority of “All Other Telecommunications” firms potentially affected by our action can be considered small.

18. The Commission seeks comment on potential changes to the spectrum sharing requirements among NGSO FSS satellite systems. Specifically, comment is sought on how to implement the degraded throughput methodology. Because of the costs involved in developing and deploying an NGSO FSS satellite constellation, we anticipate that few NGSO FSS operators affected by this rulemaking would qualify under the definition of “small entity.”

19. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

20. The Commission adopted a requirement that, prior to commencing operations, an NGSO FSS licensee or market access recipient must either certify that it has completed a coordination agreement with any operational NGSO FSS system licensed or granted U.S. market access in an earlier processing round, or submit a showing for Commission approval that it will not cause harmful interference to any such system with which coordination has not been completed using a degraded throughput methodology. This FNPRM invites comment on which specific metrics should be used to define the protection afforded to an earlier-round NGSO FSS system from a later-round system.

21. The Commission seeks comment on the appropriate values and assumptions to be used with the degraded throughput requirement. The Commission also seeks comment on whether to adopt a rule limiting aggregate interference from NGSO FSS systems that were authorized in a later processing round into NGSO FSS systems authorized in an earlier processing round. The Commission also seeks comment on alternative means of protection of earlier-round NGSO FSS systems.

22. The FNPRM also seeks comment on whether the Commission should expect that there will be a maximum number of NGSO FSS systems that can be accommodated in a given frequency band and if so, how should that affect any inter-round protection criteria and the opening of additional processing rounds. The FNPRM also seeks comment on how the degraded throughput methodology accommodates multiple NGSO systems that span multiple processing rounds.

23. To assist in the Commission's evaluation of the economic impact on small entities, as a result of actions that have been proposed in the FNPRM, and to better explore options and alternatives, the Commission seeks comment on whether any of the burdens associated with the filing, recordkeeping and reporting requirements described above can be minimized for small entities. Additionally, the Commission seeks comment on whether any of the costs associated with any of the proposed requirements to eliminate unlawful robocalls can be alleviated for small entities. The Commission expects to more fully consider the economic impact and alternatives for small entities based on its review of the record and any comments filed in response to the FNPRM and this IRFA.

24. None

25. It is ordered , pursuant to Sections 4(i), 7(a), 10, 303, 308(b), and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 160, 303, 308(b), 316, that this Further Notice of Proposed Rulemaking is adopted .

26. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center will send a copy of this Further Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with Section 603(a) of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.

FMCSA organizes this notice of proposed rulemaking (NPRM) as follows:

If you submit a comment, please include the docket number for this NPRM (FMCSA-2023-0007), indicate the specific section of this document to which your comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so FMCSA can contact you if there are questions regarding your submission.

To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2023-0007/document, click on this NPRM, click “Comment,” and type your comment into the text box on the following screen.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

FMCSA will consider all comments and material received during the comment period.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to the NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to the NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission that constitutes CBI as “PROPIN” to indicate it contains proprietary information. FMCSA will treat such marked submissions as confidential under the Freedom of Information Act, and they will not be placed in the public docket of the NPRM. Submissions containing CBI should be sent to Mr. Brian Dahlin, Chief, Regulatory Evaluation Division, Office of Policy, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Any comments FMCSA receives not specifically designated as CBI will be placed in the public docket for this rulemaking.

To view any documents mentioned as being available in the docket, go to https://www.regulations.gov/docket/FMCSA-2023-0007/document and choose the document to review. To view comments, click this NPRM, then click “Browse Comments.” If you do not have access to the internet, you may view the docket online by visiting Dockets Operations in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

DOT solicits comments from the public to better inform its regulatory process, in accordance with 5 U.S.C. 553(c). DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL 14—Federal Docket Management System), which can be reviewed at https://www.govinfo.gov/content/pkg/FR-2008-01-17/pdf/E8-785.pdf.

Section 23012 of the Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58, 135 Stat. 429 (H.R. 3684, Nov. 15, 2021)) amended 49 U.S.C. 13506 by adding, in paragraph (b)(4), a new exemption from FMCSA's operating authority registration requirements. FMCSA proposes the addition of new regulatory text implementing this statutory exemption. The exemption from operating authority registration applies to motor carriers operating a motor vehicle designed or used to transport between 9 and 15 passengers (including the driver), whether operated alone or with a trailer attached to the transport vehicle, if the motor vehicle is operated by a person  1 that provides recreational activities and the transportation is provided within a 150 air-mile radius of the location at which passengers initially boarded the motor vehicle at the outset of the trip.

FMCSA also proposes to define recreational activities to clarify the scope of this exemption. The statute, which requires that the motor vehicle be operated “by a person that provides recreational activities,” does not define recreational activities. The proposed definition would clarify the types of recreational activities the Agency has determined would qualify for the exemption in 49 U.S.C. 13506(b)(4). FMCSA limited the proposed definition of recreational activities to the types of activities that Congress outlined in the IIJA for another section that uses this term. Section 11512 provided examples of “groups representing recreational activities and interests” in subsection (c)(4) which provided some insight as to legislative intent for the term recreational activities in section 23012. The definition FMCSA proposes in implementing section 23012 includes activities Congress mentioned in section 11512 and also describes activities that fall outside the intended scope of the term. This language is intended to provide context of the activities within the scope of the exemption, based on the intent of Congress, and to allow sufficient flexibility for analysis of the term's applicability to future activities.

The cost impacts of the proposed definition include changes in paperwork, fees, and insurance costs associated with maintaining operating authority. Because there is no pre-existing definition of recreational activities, motor carriers may be interpreting their eligibility for the operating authority exemption in varying ways. Depending on current interpretations, this proposed rule would either increase, decrease, or have no incremental impact on the degree to which the operating authority exemptions are used relative to the baseline. Differences in interpretation between regulated entities and enforcement officials may be hindering consistent enforcement practices, thereby impacting business-related decisions in providing transportation for recreational activities. This rulemaking would resolve this information asymmetry and enforcement differences by creating a common understanding between FMCSA and motor carriers. Because this rulemaking may also lead to an increase in exemption use, it would benefit existing carriers by improving the efficiency of their business operations and increasing both consumer and producer surplus. For new potential providers of recreational activities that were not aware of this exemption, this rulemaking may encourage new entrants into the field.

Section 23012 of the IIJA (Pub. L. 117-58, 135 Stat. 429 (H.R. 3684, Nov. 15, 2021)) amended 49 U.S.C. 13506 by adding a new exemption from the requirement to obtain operating authority registration for “providers of recreational activities” operating passenger vehicles designed or used to transport between 9 and 15 passengers (including the driver) (see 49 U.S.C. 13506(b)(4)). The statute, which requires that the motor vehicle be operated “by a person that provides recreational activities,” does not define recreational activities. This NPRM proposes to define recreational activities to clarify the scope of the exemption applicability.

Under 49 Code of Federal Regulations (CFR) 1.87(a)(5), the authority of the Secretary of the Department of Transportation (the Secretary) to carry out the functions relating to the registration requirements in 49 U.S.C. 13901 and 13902 is delegated to the FMCSA Administrator. Sections 13901 and 13902 generally require that any person that wishes to provide transportation subject to jurisdiction under subchapter I of chapter 135  2 must be registered as a motor carrier, defined in 49 U.S.C. 13102(14) as “a person providing motor vehicle transportation for compensation.” The requirements of these sections, which are enforced under § 392.9a (“Operating authority”), are the basis for the rules governing applications for operating authority registration in 49 CFR part 365.

Before commencing operations, any person desiring to engage in for-hire interstate transportation of passengers, regardless of vehicle size or passenger seating capacity, must first obtain operating authority registration, unless a specific exemption applies (49 U.S.C. 13102 (14), 13501, 13506, 13901, 13902, and 49 CFR part 365). The relevant regulations governing such operations derive from Title 49, Subtitle IV, Part B, and are frequently referred to as the “commercial regulations,” (49 U.S.C. 13102(14), 13902 and 49 CFR part 365). Historically, the regulations promulgated pursuant to this authority were largely economic in nature and did not contain new safety requirements. Today, the most substantial regulatory requirements remaining under this authority require for-hire non-exempt motor carriers to maintain evidence of financial responsibility on file with FMCSA at all times, regardless of whether the carrier is actively operating, and to maintain an active process agent filing designating an agent for the receipt of service of process in every state (49 CFR part 366 and 49 CFR 387.301T). 3 The exemptions from the commercial regulations, including the exemption for providers of recreational activities, are enumerated in 49 U.S.C. 13506 and codified in 49 CFR part 372.

Congress adopted multiple exemptions to these commercial regulations that provided financial relief for certain industries while still maintaining safety oversight over the same operators. Exemptions from the commercial regulations do not impede the Agency's oversight of operations subject to the Agency's separate safety jurisdiction codified in the Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, Aug. 9, 1935), as amended (the 1935 Act) (codified in 49 U.S.C. 31502); the Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 Stat. 2832, Oct. 30, 1984), as amended (codified in 49 U.S.C. chapter 311); and the Commercial Motor Vehicle Safety Act of 1986 (Pub. L. 99-570, Title XII, 100 Stat. 3207-170, Oct. 27, 1986), as amended (codified in 49 U.S.C. chapter 313). A carrier may be exempt from the commercial regulations, relieving them of the obligation to obtain operating authority, file evidence of financial responsibility, and designation of a process agent. The statutory exemptions in 49 U.S.C. 13506 however, relieve the carrier only of the obligation to file with FMCSA evidence of financial responsibility, not the obligation to maintain financial responsibility when engaged in operations. Thus, if the carrier is operating a commercial motor vehicle as defined in 49 U.S.C. chapter 311, the carrier is still required to maintain minimum levels of financial responsibility in order to operate. (49 U.S.C. 31138 and 49 CFR part 387, subpart B).

The operating authority registration required under 49 U.S.C. 13901, 13902, and 13906, provides FMCSA with information about motor carriers and their operations. Although the requirements for operating authority registration apply only to carriers subject to the Agency's commercial regulations, they also provide FMCSA with an opportunity to evaluate those potential new entrant motor carriers' willingness and ability to comply with all commercial and safety regulations (49 U.S.C. 13902). This opportunity, consistent with the Agency's mission to reduce crashes and fatalities, allows FMCSA to prevent carriers who may pose a significant safety risk from entering the industry. Motor carriers operating vehicles for compensation, in interstate commerce and not subject to exemption are prohibited from operating without the required operating authority or beyond the scope of the operating authority granted (§ 392.9a). A motor carrier that violates this provision shall be ordered out of service and may be subject to penalties (§ 392.9a(b)).

The Agency, however, also requires registration under its safety jurisdiction, 49 U.S.C. 31134. As a result, if the carrier has registered and received a USDOT number under FMCSA's safety jurisdiction, the Agency will still maintain adequate information to monitor the motor carrier's safety performance and compliance, even if the carrier is not required to obtain operating authority registration.

FMCSA is required to register a motor carrier for operating authority registration under 49 U.S.C. 13902 only if the applicant is willing and able to comply with all statutory and regulatory requirements for registration (49 U.S.C. 13902, 49 U.S.C. 13906, and 49 CFR part 365). To obtain operating authority registration, each applicant is required to file the appropriate form for the scope of its operations ( e.g., to operate as a motor carrier of passengers). Applicants that have never held a USDOT number or any other registration issued by FMCSA must file the Unified Registration System (URS) online application (Form MCSA-1) to obtain a USDOT number and register for operating authority. Applicants that already have a USDOT number but desire to expand to an operation requiring operating authority, such as transporting passengers in interstate commerce for compensation, must file the “Application for Motor Passenger Carrier Authority” (Form OP-1(P)), or other appropriate OP-1 series form for the proposed operation to register for operating authority (§ 365.105T), for a fee, currently $300. Again, among other requirements, the statutory requirements for registration require that the applicant have on file with FMCSA proof of liability insurance meeting the minimum levels of financial responsibility required (49 U.S.C. 13902, 49 U.S.C. 13906, and 49 CFR part 365). Motor carriers must submit the “Motor Carrier Automobile Bodily Injury and Property Damage Liability Certificate of Insurance” (Form BMC-91, for a single insurance provider, or Form BMC-91X, for an aggregation of insurance coverage) to satisfy the financial responsibility requirements. A registration remains in effect only as long as the registrant continues to satisfy these financial responsibility requirements in 49 U.S.C. 13906.

Before the enactment of section 23012 of the IIJA, a provider of recreational activities operating as a motor carrier of passengers was required to maintain insurance at the minimum prescribed levels  4 for the entire year—including the months during which the provider was not operating. As a result, some providers of recreational activities were voluntarily revoking their operating authority registrations  5 during the off-season months by filing Form OCE-46 so that they did not need to maintain insurance at the minimum prescribed levels during those months. To resume operations, the providers were then required to obtain adequate financial responsibility, ensure evidence of financial responsibility is filed with FMCSA on Form BMC-91 or BMC-91X, and request to reinstate their operating authority registrations by submitting the “Motor Carrier Records Change” (MCSA-5889) either online or by paper during the months when they were operating, for an additional fee, currently $80. 6

In this NPRM, FMCSA is undertaking only to clarify the term recreational activities, as the Agency believes that the other provisions in section 23012 are unambiguous.

The recreational activity industry is comprised of numerous companies, associations, and organizations that focus primarily on outdoor activities. Outdoor activities may include hunting, fishing, trapping, camping, exploring caves, nature study, bicycling, horseback riding, bird watching, motorcycling, ballooning, hang-gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, rock climbing, climbing observation towers, sport shooting, whitewater rafting, and other outdoor sport, game, or educational activities.

Congress did not define the term recreational activities in the IIJA and there is no current definition in statute or regulation. The lack of a definition of recreational activities has caused confusion for the industry and safety oversight agencies that may result in myriad interpretations and a patchwork of compliance. This NPRM proposes to define recreational activities consistent with the Agency's understanding of congressional intent when establishing the exemption. 8

FMCSA proposes a new § 372.113 that outlines the exemption from operating authority registration for providers of recreational activities in 49 U.S.C. 13506(b)(4). This new section would reflect the statutory language and incorporate the exemption into the FMCSRs.

The Agency also proposes a new definition of recreational activities to § 372.107 which would provide a clear description of the types of activities that qualify for the exemption in 49 U.S.C. 13506(b)(4). Based on the statute itself and Congress' use of the term elsewhere in the IIJA, FMCSA believes Congress intended to provide an exemption to providers of recreational activities that consist of outdoor experiences or excursions typically of a physical or athletic nature that do not have transportation as an integral part of the activity itself.

In reaching this conclusion, FMCSA has drawn from the canons of statutory construction and applied the presumption of consistent usage. The U.S. Supreme Court has framed this presumption as “a natural presumption that identical words used in different parts of the same act are intended to have the same meaning” ( Atlantic Cleaners & Dryers, Inc. v. United States, 286 U.S. 427, 433 (1932)). The presumption should be “applied . . . pragmatically” (Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 171 (2012)). FMCSA's interpretation of the types of activities Congress intended to include in the term recreational activities is therefore potentially informed by Congress' use of the same term in section 11512 of the IIJA, which directs the Secretary to conduct a nonhighway recreational fuel study. Subsection (c)(4) states the Secretary may consult with groups representing recreational activities and interests, including hiking, biking and mountain biking, horseback riding, water trails, snowshoeing, cross-country skiing, snowmobiling, off-highway motorcycling, all-terrain vehicles and other offroad motorized vehicle activities, and recreational trail advocates (23 U.S.C. 203 note).

The application of this presumption does have limitations. Although the term recreational activities is found within the same act, it is used in different titles of this lengthy legislation, and applies to different operating administrations within DOT. Nonetheless, while the use of this term in section 11512 is not dispositive of its meaning in section 13506, it can still be potentially informative of Congress' intent. Applying the presumption of consistent usage pragmatically, the language in section 11512 potentially provides insight into the types of activities that Congress intended to be covered by the term recreational activities under section 13506 of the IIJA. Accordingly, FMCSA limited the proposed definition of recreational activities to similar types of activities, as informed by FMCSA's experience. 9

Based on these findings, FMCSA proposes to define recreational activities which qualify for the exemption under 49 U.S.C. 13506(b)(4) as

Recreational activities under this proposed definition would include things such as hiking, biking, horseback riding, canoeing, whitewater rafting, water trails, tubing, skiing, snowshoeing, snowmobiling, hunting, fishing, mountain climbing, and swimming. While this list of activities in the proposed definition is not all inclusive, it provides sufficient examples to clarify the specific types of activities that would qualify for the exemption.

FMCSA believes that, by including the language a person “that provides” recreational activities in the exemption, Congress intended to limit the exemption to only those persons that are actually providing recreational activities. There is no reason to infer that Congress intended for the “providers of recreational activities” exemption to apply to persons providing transportation as their core business or providing transportation concurrently with an activity (where the transportation is no longer incidental to the activity itself). These types of activities are distinct from those contemplated by Congress as exempt because the act of transporting passengers from one location to another is the central aspect of the service that the motor carriers are providing.

For instance, FMCSA does not believe Congress intended to exempt activities where the service provided by the motor carriers mainly focuses on transportation from one location to another. In such cases, the motor carrier's business is in fact selling transportation—not providing recreational activities. A bus company offering scheduled route service with multiple stops would not fall within the exemption, for example, merely because one of the scheduled stops was at or near a water park or a horseback riding stable. Likewise, motor carriers that advertise and provide alcohol, music, or other “party” activities on board the vehicle as the principal activity or purpose of the transportation would not be eligible for the exemption. 10 In situations like those described above, the activity cannot be completed and has no purpose without the transportation. The transportation in such circumstances is integral to the activities, rather than incidental. Accordingly, the proposed definition in § 372.107 would explicitly exclude any activity for which: (1) the activity offered or sold is occurring simultaneously with the transportation; or (2) the transportation is the primary service offered for sale. FMCSA solicits comment on whether the exclusions at the end of the proposed definition increase clarity. Should the agency include these exclusions at the end of the definition, remove them from the definition, or take another approach to communicate which activities would not fall within the definition in a final rule?

The exemption in 49 U.S.C. 13506(b)(4) is already in effect. This rulemaking is intended to codify the statute and provide clarity regarding which motor carriers qualify for the exemption. Motor carriers that qualify for the exemption in 49 U.S.C. 13506(b)(4) are not subject to the requirement to register for or maintain operating authority as a motor carrier of passengers.

New motor carriers that need a USDOT number, even those that qualify for the exemption, would be required to register via URS (MCSA-1). Such carriers would indicate in the Operation Classification section that they will be transporting passengers for compensation but that they are exempt pursuant to 49 U.S.C. 13506. Motor carriers with a USDOT number that do not currently have operating authority as motor carriers of passengers and would qualify for the exemption do not have to file Form OP-1(P) to obtain operating authority.

Motor carriers that currently have operating authority as motor carriers of passengers and qualify for the exemption are able to voluntarily revoke their operating authority under 49 U.S.C. 13905(d) as discussed in the background section above. After doing so, these motor carriers are no longer required to obtain or reinstate operating authority and thus, no longer required to have their insurance coverage or process agent designation on file with FMCSA (49 CFR parts 365 and 366 and § 387.301T). If a motor carrier does not voluntarily revoke its operating authority registration and fails to maintain evidence of the required level of insurance coverage on file with FMCSA, its operating authority registration will be revoked involuntarily by FMCSA.

These motor carriers would no longer need to have evidence of financial responsibility on file with FMCSA (through either Form BMC-91 or BMC-91X). However, the inapplicability of the insurance coverage filing requirement in 49 CFR part 365 and § 387.301T does not affect a motor carrier's obligation to maintain minimum levels of financial responsibility as set forth in § 387.33. As discussed above in the background section, a provider of recreational activities operating as a motor carrier of passengers is required to maintain insurance at the minimum prescribed levels while they are in operation. Additionally, a motor carrier that is no longer subject to Federal insurance requirements while not in operation may nonetheless still be required to maintain insurance coverage to meet applicable State requirements in those States in which the motor carrier operates.

Some motor carriers may have already voluntarily revoked their operating authority registration by filing Form OCE-46 under the exemption in 49 U.S.C. 13506(b)(4). Some of these motor carriers may have correctly revoked their operating authority because they meet the requirements in 49 U.S.C. 13506(b)(4) and provide transportation for activities that fall under the proposed definition in this rulemaking. If the Agency were to issue its proposed definition as a final rule, these exempt motor carriers would be permitted to continue to operate without operating authority. Other motor carriers may have incorrectly revoked their operating authority because they provide transportation for one or more activities that they mistakenly believed would fall under the scope of the statute, but do not, in fact, fall within such scope as clarified by the proposed definition in this rulemaking. These motor carriers are currently required, and would continue to be required, to reinstate their operating authority registration and have their insurance coverage on file with FMCSA in order to continue operating. 11

This section-by-section analysis describes the proposed changes in numerical order.

FMCSA would add a new paragraph (i), which would contain a definition for recreational activities.

FMCSA would add a new § 372.113 to subpart A of 49 CFR part 372. This new section would outline the exemption from operating authority registration in 49 U.S.C. 13506(b)(4).

FMCSA has considered the impact of this NPRM under E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, and by E.O. 14094 (88 FR 21879, Apr. 11, 2023), Modernizing Regulatory Review. The Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) determined that this notice of proposed rulemaking is not a significant regulatory action under section 3(f) of E.O. 12866, as supplemented by E.O. 13563 and E.O. 14094, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. Accordingly, OMB has not reviewed it under that E.O.

This rulemaking would codify the exemption for providers of recreational activities in regulation and define recreational activities to clarify the scope of this exemption by providing a clear description of what types of recreational activities do and do not qualify for the exemption in 49 U.S.C. 13506(b)(4). This would ensure that providers of recreational activities are aware of their eligibility for the exemption from filing for operating authority that FMCSA proposes to add in new § 372.113. Specifically, this rulemaking would affect motor carriers operating a motor vehicle designed or used to transport between 9 and 15 passengers (including the driver), whether operated alone or with a trailer attached to the transport vehicle, if the motor vehicle is operated by a person that provides recreational activities and the transportation is provided within a 150 air-mile radius of the location at which passengers initially boarded the motor vehicle at the outset of the trip.

This proposed rule is to provide clarity to both motor carriers and enforcement officials regarding which carriers qualify for the new exemption in section 23012 of the IIJA as of November 15, 2021. Because Congress did not define recreational activities and there is no pre-existing definition of recreational activities in statute or regulation, FMCSA proposes bringing the FMCSRs into alignment with the IIJA's exemption. This clarity would resolve possible information asymmetry currently affecting the regulated industry and enforcement officials as to which carriers qualify for the operating authority exemption.

For the purposes of this analysis, the changes proposed in this rule are compared to the baseline established by section 23012 of the IIJA and the current requirements for providers of recreational activities under 49 U.S.C. 13901 and 13902 and 49 CFR part 365. As discussed above, the IIJA created a new exemption from the requirement to obtain FMCSA operating authority registration for providers of recreational activities. Accordingly, this exemption has been available to these motor carriers since the IIJA was enacted on November 15, 2021. Therefore, the incremental impacts of this proposed rule relative to the baseline lie in how the affected industry and enforcement officials have been interpreting the term in the absence of a definition in the FMCSRs.

The Agency relies on the Motor Carrier Management Information System (MCMIS) database to obtain information on commercial motor carriers subject to the FMCSRs. While MCMIS does contain data on passenger vehicle size ( e.g., weight and capacity) and type, it does not track industry type, nor whether an operating authority exemption is applicable. Consequently, the Agency knows neither the magnitude of the population that would be affected by this rulemaking, nor the degree to which passenger carriers are currently taking advantage of the exemption. Therefore, FMCSA describes how different carriers would be impacted by costs and benefits on a per-unit basis, depending on their current behavior. The Agency invites the public to provide information on the size of this industry.

The resulting cost impacts of the definitional clarification proposed in this rulemaking include changes in paperwork, fees, and insurance costs associated with maintaining operating authority. Because there is no pre-existing definition of recreational activities, motor carriers may be interpreting their eligibility for the operating authority exemption in varying ways. Depending on current interpretations, this proposed rule would either increase, decrease, or have no incremental impact on the degree to which the operating authority exemptions are used relative to the baseline. Because FMCSA is unable to ascertain how various carriers interpreted this exemption set forth by section 23012 of the IIJA in 2021, the Agency estimates the impacts of this rulemaking based on four hypothetical scenarios. The Agency also invites the public to provide additional information on the degree to which this exemption is being used.

Currently, there are several forms that providers of recreational activities are responsible for submitting to FMCSA in order to maintain operating authority registration. As detailed later in this analysis, the use of these forms, as explained in table 1, may change as a result of this proposed rule, depending on how the affected carriers are interpreting this exemption.

Tables 2 and 3 display the paperwork burden of these forms to private entities and to the Government, respectively. These estimates are based on the Information Collection Request (ICR) supporting statements associated with each form. For example, table 2 shows that Forms BMC-91 and BMC-91X are estimated to take 10 minutes to complete by an insurance claims and policy processing clerk at a wage rate  12 of $38.72, leading to a paperwork burden of $6 (10 minutes × $38.72 = $6). 13 14

FMCSA computes its estimates of labor costs using data gathered from several sources. Labor costs comprise wages, fringe benefits, and overhead. Fringe benefits include paid leave, bonuses and overtime pay, health and other types of insurance, retirement plans, and legally required benefits (Social Security, Medicare, unemployment insurance, and workers compensation insurance). Overhead includes any expenses to a firm associated with labor that are not part of employees' compensation; this typically includes many types of fixed costs of managing a body of employees, such as management and human resource staff salaries or payroll services. The economic costs of labor to a firm should include the costs of all forms of compensation and labor-related expenses. For this analysis, costs of labor to a firm have been calculated relative to total compensation (base wages, plus fringe benefits, plus overhead).

The primary source for industry wages is the median hourly wage data (May 2021) from the U.S. Department of Labor (DOL), Bureau of Labor Statistics (BLS), Occupational Employment and Wage Statistics (OEWS). 15

BLS does not publish data on fringe benefits for specific occupations, but it does for the broad industry groups in its Employer Costs for Employee Compensation release. For office clerk employees, this analysis uses an average hourly wage of $26.45 and average hourly benefits of $13.78 for private industry workers in “transportation and warehousing”  16 to estimate that fringe benefits are equal to 52 percent ($13.78 ÷ $26.45) of wages. For insurance claims processors, this regulatory impact analysis uses an average hourly wage of $33.93 and average hourly benefits of $16.92 for private industry workers in “financial activities”  17 to estimate that fringe benefits are equal to 50 percent ($16.92 ÷ $33.93) of wages.

For estimating the overhead rates on wages, the Agency used industry data gathered for the Truck Costing Model developed by the Upper Great Plains Transportation Institute, North Dakota State University as a proxy for the overhead cost of employees in the transportation intermediary and surety and trustee industries. 18 Research conducted for this model found an average cost of $0.107 per mile of commercial motor vehicle operation for management and overhead, and $0.39 per mile for labor, indicating an overhead rate of 27 percent (27 percent = $0.107 ÷ $0.39, rounded to the nearest whole percent).

It is assumed that FMCSA reviewers will be Federal Government employees located in the Washington DC region at the GS-9 Step 5 wage rate. 19 OPM does not publish annual rates that include fringe benefits or overhead. OMB does publish an object class analysis of the budget of the U.S. Government. The Object Class Analysis estimates that, in 2021, DOT spent $6,351 million in employee compensation and $2,840 million in employee benefits. FMCSA estimates a fringe benefit rate of 45 percent (2,840 ÷ 6,351) for FMCSA personnel. FMCSA uses the DOT Volpe Center overhead rate of 64 percent for Federal personnel. 20 The Volpe Center is a Federal fee-for-service research and innovation center in the DOT. Unlike most Federal agencies, Volpe receives no direct appropriation from Congress and must cover direct and indirect expenses through agreements with project sponsors. 21 22 These indirect costs are recovered through the overhead rate charged on direct labor costs. Volpe employees are compensated according to the Federal locality pay tables used for all Federal employees and their labor costs include the same employee benefits. Therefore, FMCSA believes that the overhead rate for Volpe personnel is similar to the rate for all DOT personnel.

In addition to submitting forms to FMCSA, providers of recreational activities wishing to maintain a valid operating authority registration must also have proof of liability insurance filed with FMCSA, as explained in section V of this NPRM. The Agency estimates that such liability insurance currently costs entities an average of $190 per month for one vehicle, or $2,280 per year ($190 × 12 = $2,280). 23 Using a range of fleet sizes for illustrative purposes, table 4 presents the estimated costs currently associated with maintaining liability insurance by fleet size. The Agency invites the public to provide additional information on these estimates.

Scenario One includes existing providers of recreational activities that have been eligible for the operating authority exemption established by section 23012 of the IIJA in 2021 but are not utilizing it due to the definitional ambiguity of recreational activities. Upon issuance of this rulemaking, such carriers would understand they classify as a provider of recreational activities and are, therefore, eligible for this exemption. This would lead to an incremental increase in the number of operational authority exemptions being used relative to the baseline. As explained in detail below, these carriers would be impacted in different ways by the following costs and cost savings: financial responsibility compliance costs, operating authority registration fees, and paperwork costs.

Carriers under Scenario One that are currently maintaining their operating authority registration year-round would experience cost savings associated with maintaining financial responsibility. As displayed in table 4, the Agency estimates that the liability insurance required for carriers to maintain operating authority registration costs an average of $2,280 per year for one vehicle. Carriers under this scenario would save on insurance costs during the months they are not in operation (such as off-season months). In other words, carriers operating one vehicle would only pay for the months they need to be insured instead of the full $2,280 per year, or $190 per month, to operate one vehicle.

The Agency estimates a range of annual insurance cost savings from $190 to $17,100, depending on the number of vehicles a carrier owns and the number of months they currently maintain operating authority. These estimates are derived by multiplying the monthly insurance premiums according to fleet size in table 4 by the number of months they operate per year. Therefore, if a carrier with one vehicle is currently operating for one month per year, their annual cost savings would be $190 (1 month of insurance premiums × 1 vehicle). If a carrier with 10 vehicles is currently operating for 9 months per year, their annual cost savings would be $1,900 multiplied by 9 months ($17,100).

To illustrate further, table 5 displays estimated insurance cost savings of this rulemaking for a carrier operating five vehicles, as a result of no longer incurring year-round insurance costs. For example, using the values from table 4, the Agency estimates that a carrier operating five vehicles currently pays an average of $950 per month, or $11,400 per year, to maintain liability insurance. If such a carrier only maintained operating authority for 3 months, their cost savings would be $8,550 per year ($950 × 3 months = $2,850. $2,850−$11,400 =−$8,550).

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 southern elktoe meets the definition of an endangered species; therefore, we are proposing to list it as such and proposing a designation of its critical habitat. Both listing a species as an endangered or threatened species and designating critical habitat can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. We propose to list the southern elktoe as an endangered species, and we propose the designation of critical habitat for the species.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. The primary threat to the southern elktoe is habitat loss and degradation (Factor A) resulting from increased sedimentation, degraded water quality, insufficient water quantity, and loss of habitat connectivity.

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

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) The species' biology, range, and population trends, including:

(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

(5) Specific information on:

(a) The amount and distribution of southern elktoe habitat;

(b) Any additional areas occurring within the range of the species, the Apalachicola, Chattahoochee, Flint, and Chipola river basins in Georgia, Florida, and Alabama, that should be included in the designation because they (i) are occupied at the time of listing and contain the physical or biological features that are essential to the conservation of the species and that may require special management considerations, or (ii) are unoccupied at the time of listing and are essential for the conservation of the species; and

(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and

(d) To evaluate the potential to include areas not occupied at the time of listing, we particularly seek comments regarding whether occupied areas are adequate for the conservation of the species. Additionally, please provide specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species. We also seek comments or information regarding whether areas not occupied at the time of listing qualify as habitat for the species.

(6) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

(7) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas.

(8) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts and any additional information regarding probable economic impacts that we should consider.

(9) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. If you think we should exclude any additional areas, please provide information supporting a benefit of exclusion.

(10) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide substantial information necessary to support a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made solely on the basis of the best scientific and commercial data available, and section 4(b)(2) of the Act directs that the Secretary shall designate critical habitat on the basis of the best scientific data available.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

If you submit information via https://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov.

Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the information we receive (and any comments on that new information), we may conclude that the species is threatened instead of endangered, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species. For critical habitat, our final designation may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, or may exclude some areas if we find the benefits of exclusion outweigh the benefits of inclusion and exclusion will not result in the extinction of the species.

Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES . Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT . We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. We may hold the public hearing in person or virtually via webinar. We will announce any public hearing on our website, in addition to the Federal Register . The use of virtual public hearings is consistent with our regulations at 50 CFR 424.16(c)(3).

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

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

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 southern elktoe SSA report. We sent the SSA report to four independent peer reviewers and received responses from two. Results of this structured peer review process can be found at https://regulations.gov. In preparing this proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which is the foundation for this proposed rule.

As discussed under Peer Review, above, we received comments from two 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 information contained in the SSA report. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions that were incorporated into the SSA report. No substantive changes to our analysis and conclusions within the SSA report were deemed necessary, and peer reviewer comments are addressed in version 1.1 of the SSA report.

A thorough review of the taxonomy, life history, and ecology of the southern elktoe ( Alasmidonta triangulata ) is presented in the SSA report (version 1.1; Service 2022, pp. 17-25).

The southern elktoe ( Alasmidonta triangulata; Lea 1858) is a medium-sized freshwater mussel that reaches up to 70 millimeters (mm) (2.8 inches (in)) in length. The southern elktoe has a moderately thin and somewhat triangular shell. Adults are olive brown to black in color, usually with obscured rays; juveniles are typically yellowish brown to olive, often with dark green rays. The species can be distinguished by its moderately to highly inflated shell, sharp posterior ridge, and umbo ( i.e., hinge area of shell which is elevated well above the hinge line of the shell) (Williams et al. 2014, p. 132).

The southern elktoe is endemic to the Apalachicola, Chattahoochee, and Flint River (ACF) basins of Alabama, Florida, and Georgia. Although surveys since 2000 have documented the species as extant in all four large river basins of the ACF Basin (Apalachicola River, Chipola River, Chattahoochee River, and the Flint River), the southern elktoe is considered very rare in distribution (Clench and Turner 1956, entire; Brim Box and Williams 2000, entire). In the ACF Basin, the southern elktoe inhabits permanently flowing creeks and rivers with natural hydrologic regimes. The species most often occurs in areas with slow current along stream margins and prefers deposition habitats consisting of mixtures of silty mud, sand, and gravel. Unlike other freshwater mussel species, the southern elktoe does not occur in dense beds (Williams 2015, p. 3).

The southern elktoe, like other freshwater mussels, has a complex life history involving an obligate parasitic larval life stage that is dependent on a suitable host fish. During reproduction, males release sperm into the water column, females take up the sperm, and the sperm fertilizes eggs held in the female. The developing larvae (glochidia) remain in the female's gill chamber until they mature and are ready to be released. This reproductive strategy requires that adult mussels of both sexes be in proximity to one another; additionally, fish host presence must overlap with brooding mussels to allow infestation. A reproductive study found that southern elktoe, like other Alasmidonta species ( e.g., A. arcula ), use host fish species from the sucker family, Catostomidae, as primary glochidial hosts (Fobian et al. 2018, p. 9).

Adult freshwater mussels are suspension-feeders and filter particles from the water column. Mussels may also obtain food by deposit feeding using cilia on their foot to move food particles into the shell. Mussel diets consist of a mixture of algae, bacteria, detritus, and microscopic animals.

Little is known about growth or longevity of southern elktoe; therefore, we rely on information for closely related species to help summarize characteristics of this species. Species in the tribe Andontini, which includes the southern elktoe, generally share the following traits: moderate to high growth rate, moderate life span, early maturity, and low to moderate fecundity. Typically, species of Alasmidonta reach maximum ages of 10-18 years and mature at 2-3 years (Haag and Rypel 2011, p. 239; Haag 2012, pp. 210-214).

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, the Service also issued final regulations that, for species listed as threatened species after September 26, 2019, eliminated the Service's general protective regulations automatically applying to threatened species the prohibitions that section 9 of the Act applies to endangered species (84 FR 44753; August 27, 2019).

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

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

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

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

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

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent our decision on whether the species should be proposed for listing 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 southern elktoe's viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy is the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation is the ability of the species to adapt to both near-term and long-term changes in its physical and biological environment (for example, climate conditions, pathogens). In general, species viability will increase with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306). Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' 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 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-R4-ES-2022-0179 on https://www.regulations.gov.

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

We assessed the best available information for the southern elktoe to identify the physical and biological needs to support individual fitness at all life stages (Service 2022, pp. 11-15). When information specific to the southern elktoe is not available, we rely on generalized freshwater mussel literature, as well as information on six other ACF Basin freshwater mussel species listed under the Act (fat threeridge ( Amblema neislerii ), shinyrayed pocketbook ( Hamiota subangulata ), Gulf moccasinshell ( Medionidus penicillatus ), oval pigtoe ( Pleurobema pyriforme ), Chipola slabshell ( Elliptio chipolaensis ), and purple bankclimber ( Elliptoideus sloatianus ); see 63 FR 12664; March 16, 1998). Note that the Ochlockonee moccasinshell ( Medionidus simpsonianus ) was also included in that rule but does not occur in the ACF Basin. In the remainder of this document, we will refer to the six species collectively as “the listed ACF mussels.”

Important habitat components for the southern elktoe, derived from the listed ACF mussels, are permanently flowing water and geomorphologically stable stream channels. Adequate flow levels are required to deliver oxygen, enable passive reproduction, transport food items to the sedentary juvenile and adult mussels, remove wastes and fine sediments, and maintain good water quality. Further, to maintain mussel populations over time, a natural flow regime (including magnitude, frequency, duration, and seasonality of discharge) is critical for the exchange of nutrients, movement and spawning activities of fish hosts, and maintenance of instream habitats. The southern elktoe is dependent upon stable stream channels with areas with low shear stress so that sediments on the stream bottom remain stable during high flow events.

Each life stage (fertilized egg, glochidia, juvenile, and adult) has specific resource and life-history requirements that must be met to survive. The primary requirements for all life stages of the southern elktoe are flowing waters with a moderate temperature (generally, less than 32 degrees Celsius (°C)), adequate dissolved oxygen (generally, greater than 5.0 milligrams per liter (mg/L)), and good water quality. Early life stages are uniformly sensitive to many chemical compounds including ammonia, heavy metals, pharmaceuticals, and some commonly used pesticides and surfactants. In order for eggs to be fertilized, they require mature males upstream from mature females with suitable flows for fertilization to occur. Fertilized eggs require low to moderate levels of suspended solids and appropriate spawning temperatures. Glochidia require the presence of catostomid host fish and suitable water levels to permit host-glochidia interactions. Juvenile and adult needs are similar and include areas with low shear stress, substrates consisting of stable sand and gravel free from excessive silt, and the presence of adequate food availability (bacteria, algae, diatoms, detritus) in the water column.

The southern elktoe requires the presence of host fishes to complete its life cycle. In host fish trials, southern elktoe glochidia primarily metamorphosed on species of the sucker family, Catostomidae (Fobian et al. 2018, p. 9). Several species from the sucker family are found in the ACF Basin, but detailed studies on local ecology or population trends of species identified as probable host fishes for the southern elktoe, or catostomids in general, are limited. Additionally, stressors to southern elktoe such as habitat degradation, barriers to movement, and altered flow regimes also negatively affect catostomids; however, there is uncertainty regarding the extent to which host fish availability may influence southern elktoe populations.

Connectivity among populations is also important for southern elktoe viability. Although the species' capability to disperse is evident through historical occurrence of a wide range of rivers and streams, the fragmentation of populations by small and large impoundments has resulted in isolation and only remnant patches of what once was occupied contiguous river and stream habitat. Genetic exchange occurs between and among mussel beds via sperm drift, host fish movement, and movement of mussels during high flow events. For genetic exchange to occur, connectivity must be maintained, and proximity of male and female southern elktoes is essential. Most freshwater mussels, including the southern elktoe, are found in mussel beds with other species that vary in size and density, and elktoes have very sporadic occurrences within these beds. These beds are often separated by stream reaches in which mussels are absent or rare (Vaughn 2012, p. 983). Because the species is often a component of these healthy mussel assemblages within optimal mussel habitats, maintaining connectivity between these populations is necessary for the species to maintain resiliency over time.

The following discussions include evaluations of three main influences on southern elktoe viability: (1) habitat degradation or loss, (2) presence of host fish, and (3) nonnative species. Full descriptions of each of the factors and their sources, including specific examples where threats are impacting the species or its habitat, are available in chapter 5 of the SSA report (Service 2022, pp. 70-96). Potential impacts associated with other threats such as disease, parasites, predation, sea level rise, and harvest/overcollection were evaluated, but these threats were found to have minimal effects on the viability of the species based on the best available information and are not covered in detail here.

Agriculture —The advent of intensive row crop agricultural practices has been considered as a potential factor in freshwater mussel decline and species extirpation in the eastern United States (Peacock et al. 2005, p. 550). Based on the U.S. Geological Survey's (USGS) National Land Cover Database (NLCD) 2016, approximately 20 percent of the ACF Basin is used for cropland. Agricultural influences within the ACF Basin are most apparent in the lower areas of the Chattahoochee (Alabama and Georgia), Flint (Georgia), and Chipola Basins (Alabama and Florida), and in the northern areas of the Apalachicola Basin (Florida).

Pumping groundwater for agricultural practices is contributing to decreased spring outflows and lowered stream levels in the ACF Basin. Agriculture is the largest source of water use in the ACF Basin, accounting for 35 percent of all water withdrawals in 2010 (Lawrence 2016, p. 29). In the ACF Basin, spring-fed streams and small rivers may experience 50 to 100 percent reductions in flows during droughts (Georgia Water Coalition 2017, p. 3), and the additive effect of groundwater withdrawals can exacerbate drought conditions during dry years (Albertson and Torak 2002, p. 22; Mitra et al. 2016, entire). In the lower Flint River basin, an extensive conversion to center pivot irrigation systems increased groundwater withdrawals 100 percent between 1970 and 1976 (Rugel et al. 2011, p. 2), and the Lower Flint River experiences an approximate 20 percent decrease in median flow levels because of irrigation during drought years (Singh et al. 2016, p. 279).

During periods of drought, streams may cease to flow entirely, or be reduced to isolated pools with high temperatures, low dissolved oxygen (DO), low food resources, and concentrated contaminants. Maintaining adequate water levels in streams is particularly important during the reproductive season ( e.g., October to March for southern elktoe), as suitable water levels are required to permit host-glochidia interactions. Within the Flint River basin, decreases in flow velocity and DO have been highly correlated to mussel mortality (Johnson et al. 2001, p. 6). Drought-related responses could affect the long-term viability of mussel populations in the lower Flint River basin by hindering reproductive processes.

Agriculture in the ACF Basin also contributes to an increase in contaminants and sediment entering streams and rivers. Contaminants from agriculture can include excess nutrients from poultry farms and livestock feedlots, and pesticides and fertilizers from row crop agriculture (Couch et al. 1996, p. 52; Frick et al. 1998, p. 2). Although moderate levels of siltation from sediment are common in many ACF Basin streams, particularly in the Piedmont, livestock grazing in riparian buffers adds excess sediment and alters stream hydrology by increasing runoff and erosion (Agouridis 2005, p. 593, Couch et al. 1996, p. 7). The concentrations of contaminants and sediment input associated with crop lands may negatively affect the viability of southern elktoe populations, especially given the large extent of agricultural activities within the southern elktoe's range (also see Water Quality, below).

Development —With urban development, watersheds become more impervious. Impervious surfaces result in increased and accelerated storm-water runoff, which can alter stream sediment regimes by increasing bank erosion and bed scouring (Brim Box and Mossa 1999, p. 103). Stream bank erosion and scouring contributes up to two-thirds of the total sediment yield in urbanized watersheds (Trimble 1997, p. 1443). The increased and accelerated flows and incising associated with storm-water runoff has been shown to lower mussel richness and abundance through increased shear stress and bed mobilization (Allen and Vaughn 2010, p. 390; Doyle et al. 2000, p. 177; Layzer and Madison 1995, p. 337).

Water quantity in urban areas is affected by water consumption and runoff from impervious surfaces. Impervious surfaces and other areas with reduced permeability, such as grass and barren land, can lead to high flow events from rainfall, and the reduction in ground penetration leads to reduced groundwater recharge and thus reduced baseflows during dry periods (U.S. Army Corps of Engineers (USACE) 2016, pp. 2-13). In addition, contamination of aquatic habitats by pesticides, excess nutrients, heavy metals, pharmaceuticals, and organic pollutants is widespread in urban areas and associated with point ( e.g., wastewater treatment plants) and nonpoint sources (Paul and Meyer 2001, pp. 341-346). The widespread and pervasive extent of non-permitted, nonpoint discharges in urban systems has been posited as a key factor in the biological degradation frequently encountered in urban aquatic environments (Duda et al. 1982, pp. 1144-1145; see Water Quality, below).

Development and urbanization activities that may contribute to the southern elktoe habitat degradation and loss is mostly concentrated near Atlanta, Columbus, and Albany, Georgia, with Atlanta having a larger influence than the two smaller cities. Although the Atlanta metro region occupies a relatively small portion of the Chattahoochee and Flint River headwaters, it has a large ecological footprint and substantial downstream effects.

River Regulation —The ACF Basin includes rivers and streams with both unregulated (natural) and regulated flow. The natural rivers exhibit a relatively consistent seasonal pattern, responding to precipitation and drought periods as expected with short periods of high flows and sometimes prolonged periods of low flows, respectively. Regulated streams exhibit an induced variable daily pattern, with daily variations due to hydroelectric power generation, navigation releases, lower flood peaks, and higher sustained minimum flows through dry periods as the upstream reservoirs augment low flows. The alterations in flow regimes that result from regulated rivers can have a direct impact on freshwater mussels and their host fish. The timing and rates of discharges from dams may interrupt the ability of the host fish to become infected with glochidia, and the settlement of the juvenile mussels once released.

Habitat fragmentation as a result of dam construction is one of the primary causes of loss of mussel diversity (Haag and Williams 2014, pp. 47-48). Upstream effects resulting from dams include changes from flowing water to still water habitats, increased depths and sedimentation, decreased dissolved oxygen, and changes in fish communities that can affect mussel reproductive success by separating host fish from mussel populations (Neves et al. 1997, p. 63). Effects downstream of dams include alterations in flow regime, scouring, seasonal dissolved oxygen dips, reduced water temperatures, and changes in fish community structure (Neves et al. 1997, p. 63).

Numerous small rivers and tributaries of the ACF Basin have been transformed by dams and channel alterations (Hupp 2000, entire; Light et al. 2006, pp. 29-46; Price et al. 2006, entire). Additionally, there are 16 mainstem impoundments within the basin (Brim Box and Williams 2000, p. 4).

The impacts from navigational channels within the ACF Basin may also contribute to loss of habitat for the southern elktoe and alter habitats for host fish. A navigation channel is maintained on the Apalachicola River for 172 kilometers (km) (107 miles (mi)) between the Gulf Intracoastal Waterway and Jim Woodruff Lock and Dam; 249 km (155 mi) up the Chattahoochee River to Columbus, Georgia, and Phenix City, Alabama; and 45 km (28 mi) up the Flint River to Bainbridge, Georgia. The channelization that results from these navigation channels can affect a stream's physical ( e.g., erosion rates, depth, habitat diversity, geomorphic stability, riparian canopy) and biological ( e.g., species composition and abundance, biomass, growth rates) characteristics.

Water Quality —As a group, mussels are often the first organisms to respond to water quality impacts (Haag 2012, p. 355), with mussel early life stages frequently showing the highest sensitivity to many chemical compounds (Augspurger et al. 2007, p. 2025-2026). Contamination or alteration to water chemistry can result from both point and nonpoint sources, including spills, industrial sources, municipal effluents, and runoff from agricultural and developed areas. These sources may contribute to changes in dissolved oxygen (DO), sediment loading, and the concentrations of nitrogen, phosphorus, ammonia, heavy metals, pesticides, and pharmaceuticals in the affected waterways. Although there are no current data for the tolerance levels of southern elktoe to specific pollutants, there is some general information available on the relationships and importance of these parameters to freshwater mussels and aquatic life.

Ammonia is one of the most common and widespread pollutants found in freshwaters, with nitrogen-based fertilizers and industrial and domestic wastewater among the most significant sources of ammonia in streams. Freshwater mussels are sensitive to elevated concentrations of ammonia, especially its un-ionized form (Augspurger et al. 2003, pp. 2571-2574; Wang et al. 2007, pp. 2039-2046), and exposure to ammonia has been linked to mussel recruitment failure when present in sediments (Strayer and Malcom 2012, p. 1787). High nitrogen loads within the ACF Basin correspond to sub-watersheds with high urban and row cropland uses, including the metro Atlanta area of the far Upper Flint, and in agricultural areas of the Lower Flint and Chipola Rivers.

In 2013, the Environmental Protection Agency (EPA) adopted final national recommended ambient water quality criteria for the protection of aquatic life from effects of ammonia in freshwater (see 78 FR 52192; August 22, 2013), and in 2016, the Florida Department of Environmental Protection adopted the chronic criteria for ammonia as both the acute and chronic values, therefore improving the ammonia standard even further for the conservation of freshwater mussels Statewide (EPA 2016, entire). In 2017, Georgia also addressed ammonia toxicity in a new National Pollutant Discharge Elimination System (NPDES) Permitting Strategy to comply with the EPA's 2013 ammonia criteria (GADNR 2017, entire). The new criteria recommendations consider the latest freshwater toxicity information for ammonia, including toxicity studies for sensitive unionid mussels and gill-breathing snails (EPA 2013, entire). We do not currently have information on specific tolerance levels for southern elktoe regarding un-ionized ammonia, but EPA's new criteria represents the best general target for freshwater mussels. Still, recent work suggests that even low levels of ammonia ( e.g., 1.5 mg N/L (milligrams Nitrogen per Liter)), which are below thresholds set in the 2013 criteria, can be toxic to some mussel species (Wang et al. 2017, pp. 791-792).

Agricultural and developed lands are associated with high loadings of nutrients and silt and sediments in streams. Suspended sediment and total phosphorus (TP; determined by parent-rock minerals, urban land, manure from livestock, municipal wastewater, agricultural fertilizer, and phosphate mining) are both highest toward the northern extent of the ACF Basin, and areas of higher concentrations coincide with the Upper Flint and Middle Chattahoochee southern elktoe populations. For more information on the association between land use and nitrogen, phosphorus, and suspended sediment loads by within the ACF Basin, see chapter 5 of the SSA report (Service 2022, pp. 82-87).

Mussels may suffer lethal and nonlethal effects from low dissolved oxygen levels and elevated stream temperatures (Fuller 1974, pp. 240-245; Dimock and Wright 1993, pp. 188-190; Gagnon et al. 2004, p. 675), and are particularly susceptible to these conditions during their early life stages (Sparks and Strayer 1998, pp. 132-133; Pandolfo et al. 2010, p. 965; Archambault et al. 2013, p. 247). The amount of DO in water can vary due to several factors including water temperature, nutrient levels, and water velocity. Additionally, low flow levels that result from drought conditions can expose mussels to low DO concentrations and high water temperatures for extended periods (Haag and Warren 2008, pp. 1174-1176).

Heavy metal exposure can cause substantial harm to mussels. These inorganic pollutants enter aquatic systems via point and non-point sources and are frequently associated with urban land-use, mining, and industrial processes such as energy production. Many lab trials have demonstrated that mussels are among the most sensitive aquatic organisms to several metals, including nickel, copper, and zinc (Wang et al. 2017, pp. 792, 795).

Pesticides are widespread contaminants that have been implicated in mussel declines. Pesticides have been linked to freshwater mussel die-offs (Fleming et al. 1995, pp. 877-879), and lab studies show that sensitivity of mussel glochidia and juveniles to common pesticides can be high but is variable and difficult to predict (Conners and Black 2004, pp. 362-371; Bringolf et al. 2007, pp. 2089-2093; Wang et al. 2017, p. 792).

An emerging category of contaminants of concern to aquatic species is pharmaceuticals, including contraceptive medications, antidepressants, and livestock growth hormones originating from municipal, agricultural, and industrial wastewater sources. Pharmaceuticals have been shown to bioaccumulate in mussels downstream of wastewater treatment plants (De Solla et al. 2016, p. 489), and in lab studies, acute pharmaceutical exposure has caused mortality of glochidia (Gilroy et al. 2014, p. 543) and changes to mussel physiology (Bringolf et al. 2010, pp. 1315-1317) and behavior (Hazelton et al. 2014, pp. 31-32).

Although specific physical and chemical tolerance ranges are not known for the southern elktoe, numeric standards for most water quality criteria important to mussels currently adopted by the States of Alabama, Florida, and Georgia under the Clean Water Act (33 U.S.C. 1251 are sufficient to sustain elktoe. However, some standards (such as those for chloride, potassium, and nickel) are toxic to mussels at levels below the current criteria (Gibson et al. 2018, pp. 244-250; Wang et al. 2017, p. 795). In addition, standards do not exist for some mussel toxicants (for example, the surfactant sodium dodecyl sulfate) (Gibson et al. 2016, p. 32), nor do any exist for any of the pharmaceuticals listed above.

Changing Climate Conditions —Climate conditions that may influence the southern elktoe include increasing water temperatures and changes to precipitation patterns that may result in changes to hydrologic conditions, including increased flooding, prolonged droughts, reduced stream flows, and changes in salinity levels (Nobles and Zhang 2011, pp. 147-148). Climate change may affect the frequency and duration of both drought and floods, as well as alter normal temperature regimes. Drought can cause dewatering of freshwater habitats and low flows, which exacerbate water quality impairments ( e.g., dissolved oxygen, temperature, contaminants), whereas floods can cause excessive erosion, destabilize banks and bed materials, and lead to increases in sedimentation and suspended solids.

Long-term climate records suggest that decade-long “mega-droughts” have occurred periodically during the past 1,000 years in the southeastern United States, including in the ACF Basin (Stahle et al. 2007, entire). This suggests that while the recently observed droughts in 2006-2008 and 2010-2012 were exceptional based on our recent (less than 100 years) period of record, they may not be exceptional compared to historical episodes (Pederson et al. 2012, p. 2). However, projections for the ACF watershed indicate that future droughts are likely to be more intense, replicating those historical conditions more frequently (Yao and Georgakakos 2011, entire).

The Intergovernmental Panel on Climate Change's (IPCC) Fifth Assessment Report (AR5), published in 2014, presents recent climate findings based on a set of scenarios that use representative concentration pathways (RCPs). The recently updated flow models in the ACF Basin allow a closer look at predicted flows by river reach for a range of hydrologic variables into the future (the future time period is integrated over 2045-2075). These data indicate that streams and rivers within southern elktoe occurrence could exhibit a range of changes in flow conditions under future climates (LaFontaine et al. 2019, entire). An analysis of conditions in the ACF Basin through 2050 under RCP 4.5 and 8.5 predicts increases in temperature (particularly summer and fall, (Neupane et al. 2018, p. 2232)), surface water runoff, and evapotranspiration, and decreases in soil moisture and groundwater discharge; all patterns are more pronounced under RCP 8.5 than RCP 4.5 (Neupane et al. 2018, p. 2236).

Despite the recognition of potential climate effects on ecosystem processes, there is uncertainty about what the exact climate future for the southeastern United States will be and how ecosystems and species in this region will respond. The greatest threat from climate change may come from synergistic effects. That is, factors associated with a changing climate may act as risk multipliers by increasing the risk and severity of more imminent threats, especially for rivers in wide floodplains where stream channels have room to migrate (Elliot et al. 2014, pp. 67-68). As a result, impacts from land use change might be exacerbated under even a mild to moderate climate future. A suite of potential hydrological impacts to waters of the southeastern United States is possible under conditions of climate change, but climate models generally predict increases in extreme rainfall events and droughts of greater duration and intensity (Carter et al. 2018, pp. 745-746).

Host fish for southern elktoe are in the sucker family, Catostomidae, including Moxostoma (Apalachicola redhorse, greater jumprock, and blacktail redhorse) and Erimyzon (creek chubsucker and lake chubsucker). Several species from the sucker family are found in the ACF Basin, but detailed studies on local ecology or population trends of species identified as probable host fishes for the southern elktoe, or sucker fishes in general, are more limited. As such, there is some uncertainty as to whether host fish availability is a limiting factor for southern elktoe.

The primary stressors to sucker fishes in southeastern U.S. rivers are identified as habitat degradation from urbanization and agriculture, hydropower, and barriers to dispersal (Cooke et al. 2005, p. 325), so it is important to consider that some of the same stressors acting on southern elktoe at individual and watershed levels are also acting on the host fishes. Generally, sucker fishes are large-bodied fishes that move significant distances, particularly to reach spawning locations. As a result, sucker fish species can disperse mussels farther than smaller-bodied and less mobile fishes. However, we are uncertain to the extent to which barriers may limit host fish movement or affect dispersal and colonization capabilities of southern elktoe.

The invasive Asian clam (Corbicula fluminea ) was first detected in the eastern Gulf drainages in the early 1960s and was widespread within the ACF Basin by the mid-1970s (Heard 1975, p. 3). Asian clam life history enables fast colonization; it is hermaphroditic and can self-fertilize, grows fast, reaches maturity in 3 to 6 months, and produces large numbers of juveniles (Strayer 1999, p. 81; Haag 2012, p. 368). These traits allow the species to quickly reach densities of hundreds to thousands per square meter (Gardner et al. 1976, pp. 119-121), and to thrive in disturbed habitats (Haag 2012, p. 370).

Although the Asian clam can inhabit a wide range of flow and substrate conditions, densities are highest in areas with low flow velocity and in substrates composed of sand or mixtures of mud, sand, and gravel. Southern elktoe generally exhibits similar habitat preferences as the Asian clam; therefore, Asian clams may reach high abundances in areas inhabited by southern elktoe (Gardner et al. 1976, p. 122; McDowell and Byers 2019, p. 6). Additionally, Asian clams have one of the highest filtration rates per biomass, compared to native mussels and fingernail clams (sphaeriids) (McMahon and Bogan 2001, pp. 331-429), thereby potentially competing for food resources. Asian clams may also negatively affect mussels by ingesting mussel sperm, glochidia, or newly metamorphosed juvenile mussels (Strayer 1999, pp. 81-85; Modesto et al. 2019, pp. 159-162). Although the specific interaction between Asian clams and native mussels is not well understood, there is sufficient evidence to conclude that Asian clams can negatively affect native mussel populations (Haag 2012, p. 370).

There are six populations of southern elktoe, and each generally corresponds with river sub-basins where southern elktoe occur: Middle Chattahoochee, Upper Flint, Lower Flint, Ichawaynochaway, Apalachicola, and Chipola. The Middle Chattahoochee and Lower Flint sub-basins (HUC8 watersheds) were slightly modified for population-level analyses of current and future condition by extending the boundaries to align with major system barriers (dams) that are relevant to the species because they form barriers for host fishes. While no significant barriers to the southern elktoe's host fishes occur between the Lower Flint and Ichawaynochaway sub-basins, or between the Apalachicola and Chipola sub-basins, factors that influence southern elktoe populations vary among those sub-basins, making it most appropriate to analyze each separately when considering current and future condition. Below, we describe occurrence records for each of the six southern elktoe populations.

Historical collection records in the Middle Chattahoochee portion of the southern elktoe's range are from the mainstem Chattahoochee River near Columbus, Georgia; the Mulberry Creek system (Mulberry and Ossahatchie Creeks), Georgia; and the Uchee Creek System (Uchee and Little Uchee Creeks), Alabama. The species is known from 12 localities (sites); however, there has been only one collection record since 2000 in this sub-basin.

The historical southern elktoe distribution in the Upper Flint River includes the Flint River from Lake Blackshear upstream to Spalding County, Georgia, and the following tributaries: Patsiliga, Potato, White Oak, Line, and Whitewater Creeks. Southern elktoe has been documented at a total of 20 locations in this sub-basin; however, since 2000, southern elktoe has been observed at only one of these locations (Patsiliga Creek).

Southern elktoe was not known from the Ichawaynochaway sub-basin prior to 2000, so there are no historical records for this population. In 2019, one live southern elktoe was found near the confluence of Chickasawhatchee Creek and Ichawaynochaway Creek in Baker County, Georgia. This site is part of Elmodel Wildlife Management Area and is managed by the State of Georgia.

The species is known from six localities in the Lower Flint River, four of which have observations since 2000. The species is historically known from Hutchinson Ferry (1953, 1954) and U.S. Highway 27 in Bainbridge (1954, 1956); however, Woodruff Dam was completed in 1954, and these sites on the lower Flint River are now in the upper reaches of Seminole Reservoir (Lake Seminole), all in the state of Georgia. In 2011, the southern elktoe was observed at four locations in the Flint River about 10.5 km (6.5 mi) north-northeast of Bainbridge. Presently, this reach is considered to harbor the most individuals known from its current rangewide distribution. Collection records from 2011-2017 noted at least 34 individuals of various sizes, some under 30 millimeters (mm) (1.2 inches (in)) in length, indicating the presence of multiple age classes and successful recruitment (Wisniewski et al. 2014, p. 37).

Prior to 2000, the southern elktoe was documented in the Apalachicola River near Chattahoochee, Florida. Currently, southern elktoe is considered rare in the Apalachicola River; one shell was collected in 2006, and one live individual each in 2010, 2012, and 2015. The lack of collections in Apalachicola River may be due in part to limited river access points and deeper habitats.

The southern elktoe appears to be relatively more abundant in the Chipola River in Florida; a total 18 live individuals and one shell were observed at 10 locations during 2013-2018. A recent quantitative study examining freshwater mussel distribution in the Apalachicola and lower Chipola Rivers collected six southern elktoe from the lower Chipola (Kaeser et al. 2019, p. 662).

To assess resilience of southern elktoe, we developed population-level metrics associated with aspects of population dynamics that characterize freshwater mussel populations that are used in existing recovery criteria for other ACF Basin listed mussel species, including persistence within watersheds over both long- and short-term time frames, evidence of stable or increasing trends, and evidence of reproduction/recruitment. Presumed average lifespan of an individual elktoe is approximately 10 years; therefore, we interpret multiple collections through time in the same watershed as persistence, which implies conditions are appropriate for recruitment, growth, and survival. Also given this presumed lifespan of southern elktoe, we are confident that the species is still present in a watershed if it has been collected since 2010. Detection of small juvenile (less than 25 mm) mussels is challenging and biased by visual sampling methods. Given mussels of this size are hard to detect, we considered observation of southern elktoe less than 50 mm as evidence of recruitment in the previous 1 to 3 years. We also evaluated trends in land use/land cover as surrogates for associated stressors from both urban and agricultural development. We then combined the demographic and habitat indices into an overall resilience index to reflect the presence and severity of habitat stressors associated with those land use types within a watershed that would likely negatively influence the viability of southern elktoe populations.

During the defined current time period (since 2000), the overall resilience indices (sum of all metrics) indicate that the Middle Chattahoochee, Upper Flint River, and Lower Flint River populations have extremely low resiliency and may be at risk of extirpation (Table 1). In the Middle Chattahoochee and Upper Flint Rivers, only isolated individuals have been documented since 2000, and both populations had limited evidence of recruitment. In the Lower Flint, individuals have been collected in recent years, with evidence of recent recruitment. However, elktoe persistence in this area over a longer time period is not yet evident, and land use stressors are highest in this area; therefore, there is extremely low current resilience for this population. Resilience of the other three populations (Ichawaynochaway Creek, Chipola River, and Apalachicola River) is categorized as poor. Very few elktoes were recently observed in these populations: 4 in Ichawaynochaway, 3 in Apalachicola, and 18 in Chipola. Although natural rarity of southern elktoe does not mean the species is in danger of extinction, small population size could lead to an increased chance of extirpation due to a random event. Ultimately, the overall resilience indices for all populations reflect land use patterns and stressors affecting those areas. These stressors have not been abated and continue to act on the species currently.

Based on best available data that we reviewed and synthesized in the SSA report, the southern elktoe's current condition is characterized by very low individual numbers within a restricted range, and associated reductions in redundancy and representation from the known historical distribution of the species. Southern elktoe was documented as extant in each population during the defined current time frame of 2000-2019. However, there is little redundancy as none of the six populations is categorized above poor resilience; thus, the species is extremely susceptible to catastrophic events. To assess the current representation of southern elktoe, we used three metrics to estimate and predict representative units that reflect the subspecies' adaptive capacity: (1) river basin, (2) longitudinal gradient in the watershed (ecoregions, hydrogeology, and water source/aquifers), and (3) habitat variability (size, categories range from creek to great rivers). While the species is still extant in all four river basins, there has been a loss of representation along the longitudinal gradient, and the three populations with poor resilience are all limited to large tributaries (Ichawaynochaway Creek) and rivers (Chipola, Apalachicola), thus the species has extremely limited representation across its range.

To investigate future conditions, we predicted the southern elktoe's response to plausible future scenarios reflecting different environmental conditions and conservation efforts. The future scenarios project threats into the future and then consider the impacts the threats could have on the viability of the species. Based on our review of factors currently affecting viability of southern elktoe, we focused our evaluation of future condition on habitat degradation and loss associated with two prevalent land uses in the ACF Basin, agricultural and urban development, and their associated stressors to water quality and quantity. We interpreted projections for increases in agriculture and urban development through 2050 as surrogates for the stressors that would accompany increased water use for irrigation or municipal sources, increased surface runoff, and increases in contaminants specific to each sector ( e.g., nutrients and pesticides for agriculture, pollutants from urban land use). We used 2050 as our future time horizon because it is within the time frame for which climate and land use model projections exist and it encompasses at least three generations of southern elktoe, which provides confidence in predicting the species' response to threats.

We evaluated three future scenarios by modifying demographic variables according to feasible future trajectories to cover a range of possibilities from stable/increasing populations to loss of populations with the lowest number of individuals documented during our current time frame. We used land use/land cover models to forecast urban and agricultural land uses within each sub-basin, and again we combined the demographic and habitat indices into “overall resilience” for each population. We assessed redundancy and representation in the same manner as we did for current condition. Because we determined that the current condition of southern elktoe is consistent with an endangered species (see Determination of Southern Elktoe's Status, below), we are not presenting the results of the future scenarios in this proposed rule. Please refer to the SSA report (Service 2022, pp.103-113) for the full analysis of future conditions and descriptions of the associated scenarios.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

Multiple water resource planning and policy actions in Georgia and Florida have been enacted to increase water quality and/or decrease water consumption. The State of Georgia's regional water plans are developed in accordance with the Georgia Comprehensive State-wide Water Management Plan (State Water Plan), which was adopted by the General Assembly in January 2008. The State Water Plan requires the preparation of regional water development and conservation plans (regional water plans) to manage water resources in a sustainable manner through 2050, thus protecting instream habitat for the southern elktoe. Additionally, the Metropolitan North Georgia Water Planning District has implemented and expanded numerous conservation measures outlined in the 2017 Water Management Plan. The State has also enacted a number of laws related to water conservation, including the Water Stewardship Act of 2010, which has decreased per capita water use in the District by 30 percent since 2000 (Metropolitan North Georgia Water Planning District 2017, pp. 5-44).

In 1977, Georgia amended the Georgia Water Control Act of 1964 to regulate wastewater discharges and required permits for municipal and industrial users in excess of 100,000 gallons per day, but it did not limit the volume of withdrawals. Not until 1988, when the Georgia Water Quality Control Act (1964) and the Groundwater Use Act (1972) were amended, did farm withdrawals of surface and groundwater in excess of 100,000 gallons per day require a permit. These State laws prevent degradation of water quality, which is important to support southern elktoe.

Georgia passed the Flint River Drought Protection Act (FRDPA) in 2000 with the goal of reducing surface water withdrawals during dry periods, keeping more water in the ACF Basin, and mitigating tri-state water resource friction. The FRDPA allowed the Georgia Environmental Protection Division (GEPD) director to declare a drought in the Flint River basin and enabled the State to pay farmers not to irrigate. The process was used in 2001 and 2002; however, the GEPD concluded that the cropland users with the highest water usage continued to irrigate. This State law allows more water to remain in rivers during dry periods, thus reducing the potential stress to southern elktoe during droughts.

The Florida Water Resources Act establishes all water in Florida as a public resource that is managed by the Florida Department of Environmental Protection and five water management districts. Each district creates a regional water supply plan every 5 years. Florida establishes minimum flow limits (MFLs) to identify the limit at which withdrawals would be significantly harmful to the water resources or ecology of an area, particularly those areas where southern elktoe exist. Also, the Florida Legislature enacted the Surface Water Improvement and Management (SWIM) Act in 1987 by to improve and manage the water quality and natural systems of Florida's surface waters, which include lakes, rivers, streams, estuaries, springs, and wetlands. These laws that are intended to maintain flow and quality of the waters also support the southern elktoe.

The presence of other listed mussels within the ACF Basin resulted in designation of their critical habitat in 2007 (see 72 FR 64286; November 15, 2007). As a result, Federal agencies have been required under the Act's section 7 to coordinate with the Service to ensure actions they carry out, fund, or authorize will not jeopardize species' persistence or adversely modify critical habitat. This requirement has indirectly offered some protection to southern elktoe throughout most of its historical range; however, it is important to note that the most recent known locations of southern elktoe collections during the current time period in the Upper Flint population are not in any species' designated critical habitat and do not benefit from this collateral protection. Additionally, lands in conservation ownership in the ACF Basin include the Apalachicola National Forest in the Apalachicola, several spring habitats in the Chipola River Basin, and Elmodel Wildlife Management Area in the Ichawaynochaway. These conservation lands provide protection from development and other stressors to the southern elktoe.

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

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we find that past and ongoing habitat degradation and loss, including impaired water quality, decreased water quantity, and barriers to host fish movement, have reduced habitat suitability (Factor A) for the southern elktoe to such a degree that there is little resiliency of the species throughout its range. Once known from a variety of small stream to large river habitats, which supported the ability to adapt to changing riverine conditions (representation), currently the southern elktoe is restricted to larger rivers and mainstem habitats within the ACF Basin. This reduction in range represents significantly reduced representation and redundancy from historical conditions. Stressors to the southern elktoe's habitat from agricultural and urban land uses are present in all the southern populations except the Apalachicola River. The Middle Chattahoochee, Upper Flint River, and Lower Flint River populations have little resiliency and may be at risk of extirpation. Resilience of the other three populations—Ichawaynochaway Creek, Chipola River, and Apalachicola River—is currently categorized as poor ( i.e., has an index between 0.2-0.39, see Table 1 above and Table 4.4. in SSA report (Service 2022, p. 57).

While we anticipate that the threats will continue to act on the species in the future, they are affecting the species such that it is in danger of extinction now, and, therefore, we find that a threatened species status is not appropriate. We find that the southern elktoe's vulnerability to ongoing stressors is heightened to such a degree that it is currently in danger of extinction as a result of its reduced range and critically low numbers. Thus, after assessing the best available information, we determine that southern elktoe is in danger of extinction throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the southern elktoe is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portion of its range. Because the southern elktoe warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020) ( Everson ), which vacated the provision of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) providing that if the Service determines that a species is threatened throughout all of its range, the Service will not analyze whether the species is endangered in a significant portion of its range.

Our review of the best available scientific and commercial information indicates that the southern elktoe meets the Act's definition of an endangered species. Therefore, we propose to list the southern elktoe as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

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

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

The recovery planning process begins with development of a recovery outline made available to the public soon after a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions while a recovery plan is being developed. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) may be established to develop and implement recovery plans. The recovery planning process involves the identification of actions that are necessary to halt and reverse the species' decline by addressing the threats to its survival and recovery. The recovery plan identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery outline, draft recovery plan, final recovery plan, and any revisions will be available on our website as they are completed ( https://www.fws.gov/program/endangered-species ), or from our Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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

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

Although the southern elktoe is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, 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 the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Examples of actions that may be subject to the section 7 processes are land management or other landscape-altering activities on Federal lands administered by the Service, U.S. Forest Service, and National Park Service, as well as actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq. ) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat—and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation. Examples of Federal agency actions that may require consultation for the southern elktoe could include: channel dredging and maintenance, dam projects including flood control, navigation, hydropower, bridge projects, stream restoration, and Clean Water Act permitting; flow management and water storage (systemwide), slough restoration project on Apalachicola River, expansion of limestone mine on Chipola River; technical and financial assistance for projects and the U.S. Forest Service (aquatic habitat restoration, fire management plans, fire suppression, fuel reduction treatments, forest plans, mining permits); renewable and alternative energy projects; issuance of section 10 permits for enhancement of survival, habitat conservation plans, and safe harbor agreements; National Wildlife Refuge planning and refuge activities; Partners for Fish and Wildlife program projects benefiting these species or other listed species, Wildlife and Sportfish Restoration program sportfish stocking; development of water quality criteria and permitting; and future river crossings/bridge replacement and maintenance. Given the difference in triggers for conferencing and consultation, Federal agencies should coordinate with the local Service Field Office (see FOR FURTHER INFORMATION CONTACT ) with any specific questions.

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

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

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. At this time, we are unable to identify specific activities that would not be considered to result in a violation of section 9 of the Act because the southern elktoe occurs in several riverine habitats across its range and it is likely that site-specific conservation measures may be needed for activities that may directly or indirectly affect the species.

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

(1) Introduction of nonnative species that compete with or prey upon the southern elktoe;

(2) Release of biological control agents that affect any life stage of this species;

(3) Modification of the channel or water flow of any stream in which the southern elktoe is known to occur; and

(4) Discharge of chemicals or fill material into any waters in which the southern elktoe is known to occur.

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary (that is, range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis ( e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would likely result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat).

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of those planning efforts calls for a different outcome.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or absence of a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.

In considering whether features are essential to the conservation of the species, we may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.

As described above under Summary of Biological Status and Threats, the southern elktoe is a freshwater mussel that occurs in river and streams. Occasional or regular interaction among individuals in different reaches not interrupted by a barrier likely occurs, but in general, interaction is strongly influenced by habitat fragmentation and distance between occupied river or stream reaches. Once released from their fish host, freshwater mussels are benthic, generally sedentary aquatic organisms and closely associated with appropriate habitat patches within a river or stream.

We derive the specific physical or biological features essential to the conservation of the southern elktoe from studies of these species' (or appropriate surrogate species') habitat, ecology, and life history. The primary habitat elements that influence resiliency of the southern elktoe include water quality, water quantity, substrate, habitat connectivity, and the presence of host fish species to ensure recruitment. Adequate flows ensure delivery of oxygen, enable reproduction, deliver food to filter-feeding mussels, and reduce contaminants and fine sediments from interstitial spaces. Stream velocity is not static over time, and variations may be attributed to seasonal changes (with higher flows in winter/spring and lower flows in summer/fall), extreme weather events ( e.g., drought or floods), or anthropogenic influence ( e.g., flow regulation via impoundments).These features are also described above as resource needs under Summary of Biological Status and Threats, and a full description is available in the SSA report; the individuals' needs are summarized below in Table 2.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires each regional fishery management council to submit any fishery management plan or an amendment to such a plan to the Secretary of Commerce (the Secretary) for review and approval, partial approval, or disapproval. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan or an amendment to such a plan, publish an announcement in the Federal Register notifying the public that the plan or amendment is available for review and comment.

The Council prepared the FMP that is being revised by Amendment 49. If approved, Amendment 49 would be implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Act.

The Magnuson-Stevens Act requires that NMFS and the regional fishery management councils prevent overfishing and achieve, on a continuing basis, the OY from federally managed fish stocks. These mandates are intended to ensure that fishery resources are managed for the greatest overall benefit to the Nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems. To further this goal, the Magnuson-Stevens Act requires fishery managers to minimize bycatch and bycatch mortality to the extent practicable.

In 2008, a stock assessment for greater amberjack was completed through the Southeast Data, Assessment, and Review (SEDAR) process (SEDAR 15), and it was determined that the stock was not overfished or undergoing overfishing. As a result of that stock status, the Comprehensive Amendment to the FMP (77 FR 15915, March 16, 2012) established the current total ACL and annual OY.

The most recent SEDAR stock assessment for South Atlantic greater amberjack (SEDAR 59) was completed in 2020. The assessment included data through 2018. The assessment used revised estimates for recreational catch from the Marine Recreational Information Program (MRIP) based on the Fishing Effort Survey (FES). In 2018, the MRIP fully transitioned its estimation of recreational effort from the Coastal Household Telephone Survey (CHTS) to the mail-based FES. Estimates of recreational catch for greater amberjack included in the previous assessment were made using the Marine Recreational Fisheries Statistics Survey (MRFSS) methodology. As explained in Amendment 49, total recreational fishing effort estimates generated from MRIP FES are different than those from the MRIP CHTS and MRFSS. This difference in estimates is because MRIP FES is designed to more accurately measure fishing activity, not because there was a sudden change in fishing effort. The MRIP FES is considered a more reliable estimate of recreational effort by the Council's Scientific and Statistical Committee (SSC), the Council, and NMFS, and more robust compared to the MRFSS method previously used to estimate recreational catches for greater amberjack. The SSC reviewed SEDAR 59 (2020) and found that the assessment was conducted using the best scientific information available, and was adequate for determining stock status and supporting fishing level recommendations. The findings of the assessment indicated that the South Atlantic greater amberjack stock is not overfished or undergoing overfishing.

Updated catch and data changes incorporated in the assessment provided information to update the OFL, ABC, annual OY, and ACLs. In response to the results of SEDAR 59 (2020), the Council subsequently developed Amendment 49.

In addition to the proposed revisions to the sector ACLs and seasonal commercial quotas, the Council determined that further modifications to greater amberjack management measures are needed to ensure that overfishing does not occur, while increasing social and economic benefits through sustainable harvest of greater amberjack in the South Atlantic exclusive economic zone (EEZ). Amendment 49 would reduce the commercial minimum size limit, increase the seasonal commercial trip limits, and revise the April spawning closure for greater amberjack. Amendment 49 would also make changes to the FMP by removing recreational ACTs from the FMP to make administrative efforts more efficient, since the Council has not used, and does not anticipate using, recreational ACTs for management.

For South Atlantic greater amberjack, Amendment 49 would revise the OFL, ABC, annual OY, total ACL, sector allocations, and sector ACLs. Amendment 49 would also revise the commercial minimum size limit, commercial seasonal trip limits, and the April spawning closure. In addition, Amendment 49 would remove the recreational ACTs for snapper-grouper species in the FMP.

As implemented through the Comprehensive ACL Amendment, the current OFL for greater amberjack is 2,005,000 lb (909,453 kg), round weight. The current total ACL and annual OY are equal to the ABC of 1,968,001 lb (892,670 kg), round weight. All of these current values include recreational landings for greater amberjack tracked using MRFSS estimation methods, and the Council's choice of these values was based on the recommendations of their SSC from the SEDAR 15 stock assessment (2008).

In April 2021, the Council's SSC reviewed the latest stock assessment SEDAR 59 (2020) and recommended new OFL and ABC levels based on the assessment. As discussed above, SEDAR 59 and the associated OFL and ABC recommendations for greater amberjack incorporated the revised estimates for recreational catch and effort from the MRIP FES. MRIP replaced MRFSS in 2013 and replaced the CHTS with FES in 2018. MRIP also incorporated a new survey design for the Access Point Angler Intercept Survey in 2013. As explained in Amendment 49, total recreational fishing effort estimates generated from MRIP FES are generally higher than both the MRFSS and MRIP CHTS estimates. This difference in estimates is because MRIP FES is designed to more accurately measure fishing activity, not because there was a sudden increase in fishing effort. The MRIP FES is considered a more reliable estimate of recreational effort by the Council's SSC, the Council, and NMFS, and more robust compared to the MRFSS method previously used to estimate recreational catches for greater amberjack. The new OFL and ABC recommendations within Amendment 49 also represent the best scientific information available as determined by the Council's SSC and NMFS. The Council chose to specify OY for greater amberjack on an annual basis and set it equal to the ABC and total ACL, in accordance with the guidance provided in the Magnuson-Stevens Act National Standard 1 Guidelines at 50 CFR 600.310(f)(4)(iv).

The fishing year for greater amberjack is March 1 through the end of February; therefore, OFL, ABC, OY and total ACL values are described as a combination of years. Amendment 49 would revise the OFL to be 3,283,000 lb (1,489,144 kg), round weight, for 2023-2024; 2,839,000 lb (1,287,749 kg), round weight, for 2024-2025; 2,719,000 lb (1,233,317 kg), round weight, for 2025-2026; and 2,691,000 lb (1,220,617 kg), round weight, for 2026-2027 and subsequent years.

Amendment 49 would revise the total ACL and annual OY equal to the recommended ABC of 3,233,000 lb (1,466,464), round weight, for 2023-2024; 2,818,000 lb (1,278,223 kg), round weight, for 2024-2025; 2,699,000 lb (1,224,246), round weight, for 2025-2026; and 2,669,000 lb (1,210,638), round weight, for 2026-2027 and subsequent fishing years.

Amendment 49 would revise the commercial and recreational allocations of the total ACL for greater amberjack. The current sector ACLs for greater amberjack are based on the current commercial and recreational allocations of the total ACL at 40.66 percent and 59.34 percent, respectively. The current allocations were established by applying the formula of sector ACL = ((mean landings 2006-2008)*0.5) + ((mean landings 1986-2008)*0.5) to the landings dataset that were used in the Comprehensive ACL Amendment (77 FR 15916, March 16, 2012).

The revised greater amberjack sector allocations in Amendment 49 would result in commercial and recreational allocations of 35.00 percent and 65.00 percent, respectively. After considering various allocation alternatives, the Council proposed allocations based on their current allocation equation, updated estimates of recreational landings from the MRIP FES method, and a consideration of economic and social impacts to the commercial and recreational sectors. The proposed sector allocations are approximate midpoints between the current allocations, and the allocations that result from applying the current allocation formula to a revised dataset that is inclusive of MRIP-FES, which results in commercial and recreational allocations of the total ACL at 29.84 percent and 70.16 percent, respectively. While the Council increased the recreational allocation percentage to account for the increase in recreational catch estimates under the new MRIP FES estimation method, the Council chose to increase the recreational allocation to 65.00 percent, instead of 70.16 percent, to account for potential adverse economic and social impacts to the commercial sector. Several recently completed stock assessments for other species in the FMP have indicated poor stock status and necessitated reduced harvest of these stocks, making greater amberjack potentially more important to the commercial sector. The proposed greater amberjack sector allocation percentages also approximate the average annual total landings percentages for each sector from 2010-2019.

The Council determined that the sector allocations in Amendment 49 would result in the most appropriate balance between the needs of both sectors to maximize harvest opportunities. The Council considers this revised allocation to be fair and equitable to fishery participants in both the commercial and recreational sectors. The Council determined that this allocation is also reasonably calculated to promote conservation and is a wise use of the resource, since it achieves OY and is based upon an ABC recommendation from their SSC that incorporates the best scientific information available. The Council acknowledged that the recreational sector would benefit with an increase to their allocation, and that the recreational sector management measures and accountability measures (AMs) are in place to prevent overages of the recreational ACL.

The commercial quota for greater amberjack is equivalent to the commercial ACL. The final rule for Regulatory Amendment 27 to the FMP established two commercial fishing seasons and divided the commercial quota between the seasons to lengthen the greater amberjack commercial season and allow for a more equitable distribution and price stability of the greater amberjack resource throughout the South Atlantic (85 FR 4588, January 27, 2020). Regulatory Amendment 27 allocated 60 percent of the commercial quota to Season 1 from March through August, and 40 percent of the quota to Season 2 from September through February. Any remaining commercial quota from Season 1 is added to the commercial quota in Season 2. Any remaining quota from Season 2 is not carried forward into the next fishing year. Amendment 49 would not alter the current fishing seasons or seasonal allocations of the commercial ACL.

Currently, the commercial ACL is 769,388 lb (348,989 kg), gutted weight. The commercial Season 1 quota is 461,633 lb (209,393 kg), gutted weight. The commercial Season 2 quota is 307,755 lb (139,595 kg), gutted weight.

Amendment 49 would revise the commercial ACLs to be 1,088,029 lb (493,522 kg), gutted weight, for 2023-2024; 948,365 lb (430,171 kg), gutted weight, for 2024-2025; 908,317 lb (412,006 kg), gutted weight, for 2025-2026; and 898,221 lb (407,426 kg), gutted weight, for 2026-2027 and subsequent fishing years.

The commercial Season 1 quotas would be 652,817 lb (296,113 kg), gutted weight, for 2023-2024; 569,019 lb (258,103 kg), gutted weight, for 2024-2025; 544,990 lb (247,203 kg), gutted weight, for 2025-2026; and 538,933 lb (244,456 kg), gutted weight, for 2026-2027 and subsequent fishing years.

The commercial Season 2 quotas would be 435,212 lb (197,409 kg), gutted weight, for 2023-2024; 379,346 lb (172,068 kg), gutted weight, for 2024-2025; 363,327 lb (164,802 kg), gutted weight, for 2025-2026; and 359,288 lb (162,970 kg), gutted weight, for 2026-2027 and subsequent fishing years.

The current recreational ACL is 1,167,837 lb (529,722 kg), round weight. In Amendment 49,the recreational ACLs would be 2,101,450 lb (953,202 kg), round weight, for 2023-2024; 1,831,700 lb (830,845 kg), round weight, for 2024-2025; 1,754,350 lb (795,760 kg), round weight, for 2025-2026; and 1,734,850 lb (786,915 kg), round weight, for 2026-2027 and subsequent fishing years.

Amendment 4 to the FMP (56 FR 56016, October 31, 1991) implemented the current minimum size limit for the commercial sector of 36 inches (91.4 cm) fork length (FL).

Amendment 49 would reduce the commercial minimum size limit to 34 inches (86.4 cm), FL. Consideration of a reduced commercial minimum size limit was recommended during public scoping (April 2021) and from the Council's Snapper-Grouper Advisory Panel (AP) at their April 2021 meeting. For similar reasons as those provided through public and AP comments, the Council determined that reducing the minimum size limit would reduce regulatory discards, reduce the risk of shark depredation, and more align with the greater commercial desirability for smaller fish. Additionally, the Council decided that a reduction to 34 inches (86.4 cm), FL, is not likely to jeopardize the current positive stock status, given other management constraints on the commercial sector such as in-season AMs, trip limits, and split season quotas.

The final rule for Regulatory Amendment 27 revised the commercial trip limit for greater amberjack to the current limits of 1,200 lb (544 kg) during Season 1, and 1,000 lb (454 kg) during Season 2 (in round or gutted weight).

Amendment 49 would increase the Season 2 trip limit for greater amberjack to 1,200 lb (544 kg). After hearing a recommendation for this change from the Snapper-Grouper AP, the Council selected this option to have more regulatory consistency by having the same commercial trip limit throughout the year. Additionally, the Council acknowledged that the analyses considered in Amendment 49 indicate that under the 1,200 lb (544 kg) trip limit, the commercial sector is not expected to experience a closure in Season 2. The Council decided that having the same trip limit throughout the fishing year would best meet the purpose of revising the commercial trip limit to increase efficiency of commercial fishing for greater amberjack, while minimizing adverse social and economic effects.

The peak spawning month for greater amberjack is during April and spawning aggregations are vulnerable to fishing effort during that time of the year. Due to the concerns of high catch rates of greater amberjack in spawning aggregations, the final rule for Amendment 4 to the FMP (56 FR 56016, October 31, 1991) implemented a spawning season closure for the commercial harvest of greater amberjack during April, in which commercial fishermen were restricted to a three fish per person per day limit (the same as the recreational bag limit at the time). To further enhance the protection to spawning greater amberjack, the final rule for Amendment 9 to the FMP revised those commercial possession limits and sale/purchase restrictions (64 FR 3624, February 24, 1999). Currently during April each year, for both the commercial and recreational sectors, no person may sell or purchase a greater amberjack harvested from the South Atlantic EEZ and the harvest and possession limit is one per person per day or one per person per trip, whichever is more restrictive.

Amendment 49 would revise the April spawning closure restrictions for both the commercial and recreational sectors from April 1 through April 30, and not allow any person to fish for, harvest, or possess a greater amberjack from the South Atlantic EEZ and the harvest and possession limits would be zero. The sale or purchase of greater amberjack would also continue to be prohibited in April. The Council determined that additional protections were needed for greater amberjack during this portion of their peak spawning period (April-May), and that both sectors should fully participate in this effort by not allowing either sector to harvest greater amberjack.

A proposed rule to implement Amendment 49 has been drafted. In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule for Amendment 49 to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable law. If that determination is affirmative, NMFS will publish the proposed rule in the Federal Register for public review and comment.

The Council has submitted Amendment 49 for Secretarial review, approval, and implementation. Comments on Amendment 49 must be received by August 21, 2023. Comments received during the respective comment periods, whether specifically directed to Amendment 49 or the proposed rule, will be considered by NMFS in the decision to approve, partially approve, or disapprove, Amendment 49. All comments received by NMFS on the amendment or the proposed rule during their respective comment periods will be addressed in the final rule.