DOE published a NOPR on August 16, 2023, in which DOE proposed amendments to 10 CFR part 900 to establish a Coordinated Interagency Transmission Authorizations and Permits Program (CITAP Program) that will reduce the time required for electric transmission project developers to receive decisions on Federal authorizations for electric transmission projects. (88 FR 55826) In the proposed rulemaking, DOE sought comment from interested persons. DOE announces in this document that it will hold a public meeting via webinar to discuss the NOPR on Wednesday, August 23, 2023, from 1:30 p.m. ET to 3:00 p.m. ET.

The time and date for the webinar meeting are listed in the DATES section at the beginning of this document. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants are published on DOE's website : https://www.energy.gov/gdo/events/august-23-coordinated-interagency-transmission-authorization-and-permits-webinar. The public meeting will be held via the WebEx Webinar Platform. Participants are responsible for ensuring their systems are compatible with the webinar software. Requests to speak during the meeting must be submitted via the registration page no later than August 22, 2023.

DOE will designate a DOE official to preside at the webinar and may also use a professional facilitator to aid discussion. A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the webinar. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. anti-trust laws. After the webinar and until the end of the comment period, interested parties may submit further comments on the proceedings and any aspect of the proposed rulemaking. During the meeting, DOE will present a general overview of the topics addressed in the NOPR and allow time for statements by participants who requested the opportunity to speak at the meeting. Speakers will be limited to two minutes during the meeting. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the webinar.

A transcript of the webinar will be included in the docket, which can be viewed as described in the Docket section at the beginning of this document.

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1648; Project Identifier AD-2022-01501-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this 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 this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Tony Koung, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 206-231-3985; email: Tony.Koung@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA has received a report indicating Boeing found a quality escapement where the seat track fitting nuts were under-torqued on some flight attendant seats in production. One flight attendant seat was discovered to be loose after final installation, and a subsequent production line check found similarly under-torqued fitting nuts on other airplanes. An investigation revealed that the attachment nuts were torqued using a yoke-type U-joint adapter, which is not allowed for final torque, as using these adapters can result in inaccurate torque values. While the attachment nuts should be torqued to 140-150 in-lbs, the inspections found a few fitting nuts that were only finger tight (essentially zero torque), and many fitting nuts that were torqued only to the 30-130 in-lbs range. This condition, if not addressed, could result in the forward facing flight attendant seats breaking free in a high load event, causing injury to the flight attendants and blocking the exits during emergency egress.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed Boeing Service Letter 787-SL-25-025, dated September 6, 2022. This service information specifies procedures for re-torqueing each free standing attendant seat track fitting nut to 140-150 in-lbs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This proposed AD would require accomplishing the actions specified in the service information already described.

The FAA estimates that this AD, if adopted as proposed, would affect 134 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

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

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

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

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

The SIP is a set of air pollution regulations, control strategies, and technical analyses developed by the state to implement, maintain, and enforce the National Ambient Air Quality Standards, or NAAQS, and to fulfill other requirements of the Clean Air Act. The NAAQS are established under section 109 of the Act, and they currently address six criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. The SIP is required by Section 110 of the Act and can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

The Arkansas SIP is the air quality protection strategy implemented by the Department of Energy and Environment's Division of Environmental Quality (DEQ) pursuant to the CAA. The SIP consists of laws and rules, nonregulatory and quasi-regulatory measures, and other state enforceable requirements codified at 40 CFR 52 subpart E. The Arkansas SIP is federally enforceable. The Arkansas SIP was first approved by the EPA in 1972 (37 FR 10841). All revisions to the SIP require EPA approval.

On June 22, 2022, Arkansas submitted to the EPA revisions to the Arkansas SIP. 1 The submitted revisions address APC&EC Regulation 19, Rules of the Arkansas Plan of Implementation for Air Pollution Control, with corresponding chapters and appendices. The revisions restructure the regulations and organize them as rules, such that Regulation 19 becomes Rule 19, Rules of the Arkansas Plan of Implementation for Air Pollution Control, with corresponding chapters and appendices. The revisions also remove certain outdated provisions and update other provisions that are incorporated into Regulation 19. Specific provisions to be repealed are those in Chapter 10 of APC&EC Regulation 19 regarding the control of volatile organic compounds (VOC) from certain source categories in Pulaski County, provisions for the Clean Air Interstate Rule (CAIR) in Chapter 14, and informational provisions regarding sources eligible or subject to best available retrofit technology (BART) requirements for Regional Haze in Chapter 15.

Additionally, the submitted revisions address regulatory provisions in Chapters 1, 2, 3, 4, 5, 6, 7, 9, 11, 13, 16, 18, and Appendices A and B of Regulation 19. 2 These changes reflect the current organizational structure of ADEQ, remove outdated information, and make non-substantive formatting edits.

Throughout this document “we,” “us,” and “our” refer to the EPA.

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2023-0403, at www.regulations.gov. Once submitted, comments cannot be edited or removed from Regulations.gov . The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit www.epa.gov/dockets/commenting-epa-dockets.

The EPA is proposing to approve revisions to the Missouri SIP received on February 15, 2019, and June 10, 2021, and a supplemental submission on April 24, 2023. The revisions are to Title 10, Division 10 of the Code of State Regulations (CSR), 10 CSR 10-5.500 “Control of Emissions from Volatile Organic Liquid Storage.” The purpose of the state regulation is to limit the volatile organic compound (VOC) emissions from installations with volatile organic liquid storage vessels in the St. Louis 1997 eight (8)-hour ozone nonattainment area by incorporating reasonably available control technology (RACT) as required by the Clean Air Act Amendments (CAAA) of 1990. Missouri made multiple revisions to the rule. These proposed revisions add incorporations by reference to other state rules, add definitions specific to the rule, revise unnecessarily restrictive or duplicative language, and make administrative wording changes. EPA proposes to find that these revisions meet the requirements of the Clean Air Act, do not impact the stringency of the SIP, and do not adversely impact air quality. The full text of the rule revisions as well as EPA's analysis of the revisions can be found in the technical support document (TSD) included in this docket.

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on the first SIP revision from June 15, 2018, to September 6, 2018, and held a public hearing on August 30, 2018. Missouri received ten comments from two sources during the comment period on 10 CSR 10-5.500. The EPA provided nine comments. Missouri responded to all comments and revised the rule based on public comments prior to submitting to EPA, as noted in the State submission included in the docket for this action. The State provided public notice on the second SIP revision from November 15, 2019, to February 6, 2020, and held a public hearing on January 30, 2018. Missouri received one comment from a staff member during the comment period. The State revised the rule purpose statement based on the comment prior to submitting to EPA. As explained above and in more detail in the technical support document which is part of this document, the revisions meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

The EPA is proposing to amend the Missouri SIP by approving the State's request to revise 10 CSR 10-5.500 “Control of Emissions from Volatile Organic Liquid Storage.” We are processing this as a proposed action because we are soliciting comments on this proposed action. Final rulemaking will occur after consideration of any comments.

In this document, the EPA is proposing to include regulatory text in an EPA final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to finalize the incorporation by reference of the Missouri rule 10 CSR 10-5.500, with a state effective date of July 30, 2020, which regulates emissions from volatile organic liquid storage. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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.”

The Missouri Department of Natural Resources 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.

For the reasons stated in the preamble, the EPA proposes to amend 40 CFR part 52 as set forth below:

On September 9, 2022, the VADEQ submitted a revision to the Virginia SIP to incorporate a plan for maintaining the 1997 ozone NAAQS through December 31, 2032 in accordance with CAA section 175A.

In 1979, under section 109 of the CAA, EPA established primary and secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged over a 1-hour period. 44 FR 8202 (February 8, 1979). On July 18, 1997 (62 FR 38856), 1 EPA revised the primary and secondary NAAQS for ozone to set the acceptable level of ozone in the ambient air at 0.08 ppm, averaged over an 8-hour period. EPA set the 1997 ozone NAAQS based on scientific evidence demonstrating that ozone causes adverse health effects at lower concentrations and over longer periods of time than was understood when the pre-existing 1-hour ozone NAAQS was set.

Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the nation as attaining or not attaining the NAAQS. On April 30, 2004 (69 FR 23858), EPA designated the Hampton Roads Area as moderate nonattainment for the 1997 ozone NAAQS. The 1997 Hampton Roads Ozone Maintenance Area includes the counties of Gloucester, Isle of Wight, James City, and York, as well as the cities of Chesapeake, Hampton, Newport News, Norfolk, Poquoson, Portsmouth, Suffolk, Virginia Beach, and Williamsburg.

Once a nonattainment area has three years of complete and certified air quality data that has been determined to attain the NAAQS, and the area has met the other criteria outlined in CAA section 107(d)(3)(E), 2 the state can submit a request to EPA to redesignate the area to attainment. Areas that have been redesignated by EPA from nonattainment to attainment are referred to as “maintenance areas.” One of the criteria for redesignation is to have an approved maintenance plan, under CAA section 175A. The maintenance plan must demonstrate that the area will continue to maintain the standard for the period extending 10 years after redesignation, and it must contain such additional measures as necessary to ensure maintenance as well as contingency measures as necessary to assure that violations of the standard will be promptly corrected.

On June 1, 2007 (72 FR 30490), EPA approved a redesignation request (and maintenance plan) from VADEQ for the Hampton Roads Area. EPA published final approval of the redesignation request and maintenance plan on June 1, 2007 (72 FR 30490), and, as of that time, the area was designated as attainment for the 1997 ozone NAAQS. In accordance with CAA section 175A(b), at the end of the eighth year after the effective date of the redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional 10 years.

EPA's final implementation rule for the 2008 ozone NAAQS revoked the 1997 ozone NAAQS and provided that one consequence of revocation was that areas that had been redesignated to attainment ( i.e., maintenance areas) for the 1997 ozone NAAQS no longer needed to submit second 10-year maintenance plans under CAA section 175A(b). 3 However, in South Coast Air Quality Management District v. EPA   4 (South Coast II), the United States Court of Appeals for the District of Columbia vacated EPA's interpretation that, because of the revocation of the 1997 ozone standard, second maintenance plans were not required for “orphan maintenance areas,” ( i.e., areas like the Hampton Roads Area) that had been redesignated to attainment for the 1997 ozone NAAQS and were designated attainment for the 2008 ozone NAAQS. Thus, states with these “orphan maintenance areas” under the 1997 ozone NAAQS must submit maintenance plans for the second maintenance period.

As previously discussed, CAA section 175A sets forth the criteria for adequate maintenance plans. In addition, EPA has published longstanding guidance  5 that provides further insight on the content of an approvable maintenance plan, explaining that a maintenance plan should address five elements: (1) an attainment emissions inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan. The 1992 Calcagni Memo  6 provides that states may generally demonstrate maintenance by either performing air quality modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS or by showing that future emissions of a pollutant and its precursors will not exceed the level of emissions during a year when the area was attaining the NAAQS ( i.e., attainment year inventory). See 1992 Calcagni Memo at p. 9. EPA further clarified in three subsequent guidance memos describing “limited maintenance plans” (LMPs)  7 that the requirements of CAA section 175A could be met by demonstrating that the area's design value  8 was well below the NAAQS and that the historical stability of the area's air quality levels showed that the area was unlikely to violate the NAAQS in the future. Specifically, EPA believes that if the most recent air quality design value for the area is at a level that is below 85% of the standard, or in this case below 0.071 ppm, then EPA considers the state to have met the section 175A requirement for a demonstration that the area will maintain the NAAQS for the requisite period. Accordingly, on September 9, 2022, VADEQ submitted the Hampton Roads Area second maintenance plan, following the LMP guidance, and demonstrating that the area will maintain the 1997 ozone NAAQS through December 31, 2032, i.e., through the entire second maintenance period. Starting from January 1, 2033, after this maintenance plan expires, the Area will no longer be bound by the general conformity requirements and transportation conformity requirements outlined in section 176 of the CAA. However, any other control programs will continue to be in effect, unless there is evidence to show that they are unnecessary for complying with the 1997 ozone NAAQS.

VADEQ's September 9, 2022 SIP submittal outlines a plan for continued maintenance of the 1997 ozone NAAQS which addresses the criteria set forth in the 1992 Calcagni memo as follows.

For maintenance plans, a state should develop a comprehensive and accurate inventory of actual emissions for an attainment year which identifies the level of emissions in the area which is sufficient to maintain the NAAQS. The inventory should be developed consistent with EPA's most recent guidance. For ozone, the inventory should be based on typical summer day's emissions of oxides of nitrogen (NO X ) and volatile organic compounds (VOC), the precursors to ozone formation. In the first maintenance plan for the Hampton Roads Area, VADEQ used 2005 for the attainment year inventory, because 2005 was one of the years in the 2003-2005 three-year period when the area first attained the 1997 ozone NAAQS. 9 The Hampton Roads Area continued to monitor attainment of the 1997 ozone NAAQS in 2016. Therefore, the emissions inventory from 2016 represents emissions levels conducive to continued attainment ( i.e., maintenance) of the NAAQS. 10 Thus, VADEQ is using 2016 as representing attainment level emissions for its second maintenance plan. Virginia used 2016 summer day emissions from EPA's 2016 version 2.0 modeling platform  11 as the basis for the 2016 inventory presented in Table 1 in this document.

The data shown in Table 1 in this document is based on the 2017 National Emissions Inventory (NEI) version 2. 12 The inventory addresses four anthropogenic emission source categories: Stationary (point) sources, stationary nonpoint (area) sources, nonroad mobile, and onroad mobile sources. Point sources are stationary sources that have the potential to emit (PTE) more than 100 tons per year (tpy) of VOC, or more than 50 tpy of NO X , and which are required to obtain an operating permit. Data are collected for each source at a facility and reported to VADEQ. Examples of point sources include municipal solid waste incinerators, landfills, and electric generating units. Nonpoint sources include emissions from equipment, operations, and activities that are numerous and in total have significant emissions. Examples include emissions from commercial and consumer products, residential wood combustion, home heating, and small commercial operations such as vehicle refinishing. The onroad emissions sector includes emissions from engines used primarily to propel equipment on highways and other roads, including passenger vehicles, motorcycles, and heavy-duty diesel trucks. The nonroad emissions sector includes emissions from engines that are not primarily used to propel transportation equipment. Examples of equipment in the nonroad category include lawn equipment, construction equipment, commercial shipping, locomotives, and pleasure craft. EPA reviewed the emissions inventory submitted by VADEQ and proposes to conclude that the plan's inventory is acceptable for the purposes of a subsequent maintenance plan under CAA section 175A(b).

In order to attain the 1997 ozone NAAQS, the three-year average of the fourth-highest daily average ozone concentrations (design value or “DV”) at each monitor within an area must not exceed 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, appendix I, the standard is attained if the DV is 0.084 ppm or below. CAA section 175A requires a demonstration that the area will continue to maintain the NAAQS throughout the duration of the requisite maintenance period. Consistent with the prior guidance documents discussed previously in this document as well as EPA's November 20, 2018 “Resource Document for 1997 Ozone NAAQS Areas: Supporting Information for States Developing Maintenance Plans” (2018 Resource Document), 13 EPA believes that if the most recent DV for the area is well below the NAAQS ( i.e., below 85%, or in this case below 0.071 ppm), the section 175A demonstration requirement has been met, provided that Prevention of Significant Deterioration (PSD) requirements, any control measures already in the SIP, and any Federal measures remain in place through the end of the second maintenance period (absent a showing consistent with section 110(1) that such measures are not necessary to assure maintenance).

For the purposes of demonstrating continued maintenance with the 1997 ozone NAAQS, VADEQ provided 3-year DVs for the Hampton Roads Area from 2001 to 2021. This includes DVs for 2001-2003, 2002-2004, 2003-2005, 2004-2006, 2005-2007, 2006-2008, 2007-2009, 2008-2010, 2009-2011, 2010-2012, 2011-2013, 2012-2014, 2013-2015, 2014-2016, 2015-2017, 2016-2018, 2017-2019, 2018-2020, and 2019-2021. 2007-2009 through 2019-2021 are shown in Table 2 of this document. 14 In addition, EPA has reviewed the most recent ambient air quality monitoring data for ozone in the Hampton Roads Area, as submitted by Virginia and recorded in EPA's Air Quality System (AQS). The most recent DV ( i.e., 2019-2021) at monitors located in the Hampton Roads Area are also shown in Table 2 of this rulemaking action. 15 There currently are three operating ozone monitoring sites in the Hampton Roads Area, two in Suffolk City (monitors 518000004 and 518000005) and one in Hampton City (monitor 516500008). As can be seen in Table 2 in this document, DVs at all monitors located in the Hampton Roads Area have been well below 85% of the 1997 ozone NAAQS ( i.e., 0.071 ppm) since the 2012-2014 period. The highest DV for the 2019-2021 period at a monitor in the Hampton Roads Area is 0.058 ppm, which is well below the 1997 ozone NAAQS.

Additionally, states can support the demonstration of continued maintenance by showing stable or improving air quality trends. According to EPA's 2018 Resource Document, several kinds of analyses can be performed by states wishing to make such a showing. One approach is to take the most recent DV for the area and add the maximum DV increase (over one or more consecutive years) that has been observed in the area over the past several years. For an area with multiple monitors, the highest of the most recent DVs should be used. A sum that does not exceed the level of the 1997 ozone NAAQS may be a good indicator of expected continued attainment. As shown in Table 2 in this document, the largest DV increase in the Hampton Roads Area was 0.002 ppm, which occurred between the 2009-2011 (0.071 ppm) and 2010-2012 (0.073 ppm) design value periods at one of the monitors located in Suffolk City (AQS ID 518000004). Adding 0.002 ppm to the highest DV for the 2019-2021 period (0.058 ppm at the Hampton City monitor AQS ID 516500008) results in 0.060 ppm, a sum that is still below the 1997 ozone NAAQS.

DVs at all monitors located in the Hampton Roads Area have been below 85% of the 1997 ozone NAAQS ( i.e., 0.071 ppm) since the 2012-2014 period. Additional supporting information that the Area is expected to continue to maintain the standard can be found in projections of future year DVs that EPA recently completed to assist states with the development of interstate transport SIPs for the 2015 8-hour ozone NAAQS. Those projections, made for the year 2023, show that the highest DV at a monitor located in the Hampton Roads Area is expected to be 0.058 ppm. 17 The Hampton Roads Area has maintained the air quality levels well below the 1997 ozone NAAQS since the Area first attained the NAAQS in the 2003-2005 timeframe. 18 Therefore, EPA proposes to determine that future violations of the 1997 ozone NAAQS in the Hampton Roads Area are unlikely.

Once an area has been redesignated to attainment, the state remains obligated to maintain an air quality network in accordance with 40 CFR part 58, in order to verify the area's attainment status. In the September 9, 2022 submittal, VADEQ commits to continue to operate their air monitoring network in accordance with 40 CFR part 58. VADEQ also commits to track the attainment status of the Hampton Roads Area for the 1997 ozone NAAQS through the review of air quality and emissions data during the second maintenance period. EPA has analyzed the commitments in VADEQ's submittal and is proposing to determine that they meet the requirements for continued air quality monitoring and verification of continued attainment.

The contingency plan provisions are designed to promptly correct or prevent a violation of the NAAQS that might occur after redesignation of an area to attainment. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation of the contingency measures, and a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must require that the state will implement all pollution control measures that were contained in the SIP before redesignation of the area to attainment. See section 175A(d) of the CAA.

VADEQ's September 9, 2022 submittal includes a contingency plan for the Hampton Roads Area. Virginia has pledged to execute all actions related to the regulation of NO X and VOC contained in the SIP for the Hampton Roads area before redesignation to attainment and demonstration of maintenance status. Once the maintenance plan expires on December 31, 2032, 19 general conformity and transportation conformity requirements will not be applicable anymore. To avoid future violation of ozone NAAQS, 20 the maintenance plan has included contingency measures that VADEQ will implement if triggered under two main scenarios.

First, if there is an actual increase in the emissions of VOC or NO X above the inventory of the attainment year, such surges will be detected or predicted through the development of a comprehensive period tracking inventory, such as the NEI. Tracking this information is important because an increase in emissions of VOC and NO X above the attainment year inventory could be an early warning sign of a possible NAAQS exceedance or violation. VADEQ will track the observed growth rates for vehicle miles traveled, population, and point source VOC and NO X emissions annually. Comprehensive tracking of inventories as part of the NEI will also be developed in collaboration with EPA every three years using current EPA-approved methods for estimating emissions. In the improbable event that estimated emissions in the Hampton Roads Area increase above the attainment year budget, VADEQ will perform a complete VOC and NO X emissions inventory assessment. If this analysis indicates that regional emissions of NO X or VOC surpass the attainment year levels, VADEQ will put in place one or more control measures which are mentioned in Table 3 of this document but are not yet implemented.

Second, VADEQ will use recorded ozone readings to monitor for ozone NAAQS exceedances and violations. The 1997 ozone NAAQS is exceeded when an annual fourth-highest, eight-hour average of 0.085 ppm or higher is recorded by any ozone monitor in the area. In the unlikely event that monitor registers an exceedance, VADEQ will implement one yet unimplemented control measure listed in Table 3 in this document. The 1997 ozone NAAQS is violated when a three-year average of each annual fourth-highest, eight-hour average of 0.085 ppm or higher is recorded by any ozone monitor in the area. In the unlikely event that a monitor registers a violation, VADEQ will implement one yet unimplemented control measure listed in Table 3 in this document. If an ozone monitor registers a second violation after the implementation of a contingency measure in response to the first violation, VADEQ will implement one additional yet unimplemented control listed in Table 3 in this document.

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

• Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.

• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.

You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2023-0409, in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before October 23, 2023. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2023-0409, by one of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/dockets.

EPA is proposing to revoke the tolerance exemption in 40 CFR 180.920 for residues of the antimicrobial pesticide ingredient phenol when used as an inert ingredient (solvent/cosolvent) in pesticide formulations applied to growing crops, because this tolerance exemption corresponds to a use no longer current or registered under FIFRA in the United States.

EPA is proposing this action pursuant to its authority under section 408 of the FFDCA, 21 U.S.C. 346a. The Agency previously determined this action was appropriate during the registration review of phenol conducted under FIFRA, 7 U.S.C. 136 et seq.

Under FIFRA section 3(g), 7 U.S.C. 136a(g), EPA is required to periodically review all registered pesticides and determine if those pesticides continue to meet the standard for registration under FIFRA. See also 40 CFR 155.40(a). As part of registration review, EPA evaluates whether existing tolerances are safe, whether any changes to existing tolerances are necessary or appropriate, and whether any new tolerances are necessary. A “tolerance” represents the maximum level for residues of pesticide chemicals legally allowed in or on raw agricultural commodities and processed foods. Section 408 of FFDCA, 21 U.S.C. 346a, authorizes the establishment, modification, and revocation of tolerances or exemptions from the requirement of a tolerance for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Residues of pesticides in or on food that are not covered by a tolerance or exemption are deemed unsafe, 21 U.S.C. 346a(a)(1). Any food containing unsafe residues is considered adulterated and may not be distributed in interstate commerce, 21 U.S.C. 331(a), 342(a)(2)(B). For a food-use pesticide to be sold and distributed, the pesticide must not only have appropriate tolerances under the FFDCA but also must be registered under FIFRA, 7 U.S.C. 136 et seq. Moreover, residues of food-use pesticides not registered in the United States must also be covered by a tolerance or exemption in order for commodities treated with those pesticides to be imported into the United States.

Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement of a tolerance only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(c)(2)(B) of the FFDCA requires EPA, when making a safety determination concerning an exemption, to take into account, among other relevant considerations, the considerations listed in section 408(b)(2)(C) and (D). Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Section 408(b)(2)(D) identifies various factors, including available information on aggregate and cumulative exposure, for EPA's consideration in making a safety determination.

Section 408(e) of the FFDCA, 21 U.S.C. 346a(e), authorizes EPA to initiate a rulemaking to establish, modify, or revoke tolerances or exemptions from the requirement of a tolerance on its own initiative. Prior to issuing the final regulation, section 408(e)(2) requires EPA to issue a notice of proposed rulemaking for a 60-day public comment period, unless the Administrator for good cause finds that it would be in the public interest to have a shorter period and states the reasons in the rulemaking.

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

EPA is proposing that this action become effective six months after the date of publication of the final rule in the Federal Register . EPA is proposing this effective date for this action to allow a reasonable interval for producers in exporting members of the World Trade Organization's (WTO's) Sanitary and Phytosanitary (SPS) Measures Agreement to adapt to the requirements of the final rule.

Any commodities treated with phenol in the channels of trade following the tolerance exemption revocation shall be subject to FFDCA section 408(l)(5), 21 U.S.C. 346a(l)(5). Under this section, any residues of this pesticide in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that the residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA and the residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption, unless EPA determines that consumption of legally treated food during the period of its likely availability in commerce will pose unreasonable dietary risk. Evidence to show that food was lawfully treated may include records that verify the dates when the pesticide was applied to such food.

EPA is proposing to revoke the tolerance exemption in 40 CFR 180.920 for residues of phenol when used as an inert ingredient (solvent/cosolvent) in pesticide formulations applied to growing crops. In the August 2020 Phenol and Salt Interim Registration Review Decision (available at https://www.regulations.gov in docket ID number EPA-HQ-OPP-2012-0810), EPA determined that there are no current registrations for pesticide products containing phenol as an inert ingredient (solvent/cosolvent) for use on growing crops, and therefore the tolerance exemption for phenol under 40 CFR 180.920 is not necessary and should be revoked. Moreover, there have been no registrations for use associated with this tolerance exemption for many years. The Agency therefore believes that existing stocks of pesticide products containing phenol for the use associated with this tolerance exemption have been exhausted and that treated commodities have cleared the channels of trade.

Therefore, EPA is proposing to revoke the exemption from the requirement of a tolerance for residues of phenol when used as an inert ingredient (solvent/cosolvent) in pesticide products used on growing crops.

In this proposed rule, EPA is proposing to revoke a specific tolerance exemption under its authority in FFDCA section 408(e). The Office of Management and Budget (OMB) has exempted this type of action ( e.g., tolerance exemption revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this proposed rule has been exempted from review under Executive Order 12866, due to its lack of significance, this proposed rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ) or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ). Nor does it require any special considerations as required by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This proposed rule does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency previously assessed whether revocations of tolerances might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. This analysis was published in the Federal Register of December 17, 1997 (62 FR 66020) (FRL-5753-1) and was provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticide named in this proposed rule, the Agency hereby certifies that this proposed rule will not have a significant negative economic impact on a substantial number of small entities. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. (This Agency document titled “RFA/SBREFA Certification for Import Tolerance Revocation” is available in the docket of this proposed rule.) Furthermore, for the pesticide named in this proposed rule, the Agency knows of no extraordinary circumstances that exist as to the present proposed rule that would change EPA's previous analysis. Any comments about the Agency's determination should be submitted to the EPA along with comments on the proposed rule and will be addressed prior to issuing a final rule.

In addition, the Agency has determined that this proposed rule will not have a substantial direct effect on 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, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999). Executive Order 13132, requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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 proposed rule directly regulates growers, food processors, food handlers, and food retailers, not States. This proposed rule does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this proposed rule does not have any “tribal implications” as described in Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This proposed rule will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. Thus, Executive Order 13175, does not apply to this proposed rule.

Therefore, it is proposed that 40 CFR chapter I be amended as follows:

This is a summary of the Commission's Public Notice in WC Docket No. 19-195, released on August 11, 2023. Due to the COVID-19 pandemic, the Commission's headquarters will be closed to the general public until further notice. The full text of this document is available at the following internet address: https://www.fcc.gov/document/comments-sought-petition-waiver-engineering-certification or by using the Commission's ECFS web page at www.fcc.gov/ecfs.

Ex Parte Rules. This proceeding shall 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 presenters 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 § 1.1206(b) of the Commission's rules. In proceedings governed by § 1.49(f) of the rules 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.

1. The Bureaus seek comment on a Petition filed by the Competitive Carriers Association (CCA) and USTelecom—The Broadband Association (USTelecom and, together with CCA, Petitioners). Petitioners request that the Bureaus renew for an additional three filing cycles the BDC Limited Waiver, which temporarily waives the requirement that Broadband Data Collections (BDC) filings be verified by a licensed Professional Engineer (PE), thus allowing BDC submissions to be certified by an otherwise qualified engineer who does not hold the PE credential.

2. The Commission's rules require that a certified PE or a corporate engineering officer review and certify the accuracy of the broadband availability data submitted by mobile and fixed providers as part of the BDC. This requirement was adopted to ensure that filers have engaged in the analysis necessary to meet Congress's objective of developing more accurate broadband coverage data. In particular, the Commission requires each mobile and fixed service provider to include certifications as to the accuracy of its data submissions by a certified PE or corporate engineering officer, in which the engineer certifies “that he or she has examined the information contained in the submission and that, to the best of the engineer's actual knowledge, information, and belief, all statements of fact contained in the submission are true and correct and in accordance with the service provider's ordinary course of network design and engineering.” This certification is in addition to the corporate officer certification required by the Broadband DATA Act and the Commission's Second Order and Third Further Notice, 86 FR 18124, April 7, 2021.

3. In the July 2022 BDC Limited Waiver, the Bureaus found that granting a limited waiver of the rule was “consistent with the policy objectives of the rule because providers will still be required, under the terms of the limited waiver the Commission adopted, to have an engineer review and certify their BDC submissions to help ensure the accuracy of the broadband data they submit” and that the limited waiver “only modifies the engineering certification requirement to allow providers to use otherwise-qualified engineers who are not certified PEs to make the required certifications.”

4. Petitioners assert that the “BDC process under the waiver has been effective, with no impact to the quality or accuracy of the BDC filings, and there remains an ongoing industry need for a waiver of the PE requirement.” The Petition says the industry, particularly smaller providers, is still experiencing hardships regarding the scarcity of PE licensure in the workforce and continues to face “significant challenges” meeting the PE certification requirement. The Petition also asserts that broadband providers can provide accurate broadband data without certification by licensed PEs. Petitioners therefore request that the Commission renew or extend the BDC Limited Waiver, or otherwise grant a new waiver, of the requirement that BDC certification be completed by a licensed PE for three additional data filing cycles and continue to allow providers that do not have access to licensed PEs to certify data with an engineering professional with the same qualifications specified in the BDC Limited Waiver.

5. The Commission seeks comment on these and other issues raised by the Petition as they may impact both fixed and mobile broadband service providers.

The Petitioner contends that Colusa is a community deserving of a new television broadcast service. In support, the Petitioner states that Colusa, with a 2020 population of 6,411 is the seat of Colusa County and known for its agricultural production. The Petitioner further states that Colusa has a mayor, mayor pro tem, and three council members; police, public works, parks and recreation, planning, fire, and utility departments; a library, airport, and numerous businesses and places of worship; and its own Zip Code. The Petitioner states its intention to file an application for channel *2, if allotted, and take all necessary steps to obtain a construction permit. The proposed amendment to the Table of TV Allotments warrants consideration. The Petitioner's proposal would result in a first local service to Colusa under Allotment Priority (2) of the Commission's television allotment priority standard. The Petitioner demonstrates, and a staff engineering analysis confirms, that channel *2 can be allotted to Colusa, California, consistent with the minimum geographic spacing requirements for new allotments in section 73.623(d) of the Commission's rules. In addition, the allotment point complies with section 73.625(a)(1) of the Commission's rules as the entire community of Colusa is encompassed by the 35 dBμ contour.

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 23-280; RM-11957; DA 23-705, adopted August 16, 2023, and released August 16, 2023. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

Members of the public should note that all ex parte contacts are prohibited from the time a Notice of Proposed Rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in Section 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a). See Sections 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

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

The Petitioner contends that Tulare is a community deserving of a new television broadcast service. In support, the Petitioner states that Tulare, with a 2020 population of 70,733 was founded in 1872 by the Southern Pacific Railroad and is in the heart of agricultural San Joaquin Valley, halfway between Los Angeles and San Francisco.

Tulare is known for its agricultural production and home to the nation's largest single-site dairy complex. The Petitioner further states that Tulare has a mayor and five council members; police, public works, planning, engineering, and community and economic development departments; a library, school district, and numerous businesses and places of worship. The Petitioner states its intention to file an application for channel *3, if allotted, and take all necessary steps to obtain a construction permit. The proposed amendment to the Table of TV Allotments warrants consideration. The Petitioner's proposal would result in a first local service to Tulare under Priority (2) of the Commission's television allotment priority standard. The Petitioner demonstrates, and a Bureau staff engineering analysis confirms, that channel *3 can be allotted to Tulare, California, consistent with the minimum geographic spacing requirements for new allotments in section 73.623(d) of the Commission's.

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 23-279; RM-11956; DA 23-703, adopted August 16, 2023, and released August 16, 2023. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

Members of the public should note that all ex parte contacts are prohibited from the time a Notice of Proposed Rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in Section 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a). See Sections 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

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

This is a summary of the Commission's Order and Notice of Proposed Rulemaking (NPRM), MB Docket No. 22-405; FCC 23-61, adopted on July 31, 2023, and released on August 1, 2023. The full text of this document is available for public inspection and copying via ECFS at http://apps.fcc.gov/ecfs and the FCC's website at https://docs.fcc.gov/public/attachments/FCC-23-61A1.pdf. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

The NPRM in document FCC 23-61 seeks comment on proposed rule amendments that may result in modified information collection requirements. If the Commission adopts any modified information collection requirements, the Commission will publish another notice in the Federal Register inviting the public to comment on the requirements, as required by the Paperwork Reduction Act, Public Law 104-13; 44 U.S.C. 3501-3520. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission seeks comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees. Public Law 107-198; 44 U.S.C. 3506(c)(4).

1. Power Increase Petition; History of Digital FM Power Limits. In 2002, the Commission selected in-band, on-channel (IBOC) technology, at the time developed and manufactured by iBiquity, to enable radio broadcast stations to commence digital broadcasting. At that time, the Commission adopted notification procedures allowing existing FM radio stations to begin digital transmissions immediately on an interim basis using the IBOC system. The iBiquity FM IBOC digital system includes several hybrid modes and separate all-digital modes. In the hybrid and extended hybrid modes, a station simultaneously transmits both the analog and digital signals. In the all-digital modes, the station drops the analog signal and is able to increase the capacity of the digital signal. The Commission initially limited digital operations to the hybrid digital mode, which permits the simultaneous transmission of both the analog and digital signals within the current spectral emissions mask of a single FM channel, placing redundant blocks of digital information in the sidebands on both sides of and immediately adjacent to the analog signal.

2. iBiquity and several independent parties conducted extensive field and laboratory tests of the IBOC system prior to Commission adoption. Based on the National Radio Systems Committee's (NRSC) evaluation of those test results, in December 2001 the NRSC approved the NRSC-5 standard, which specifies a digital FM effective radiated power (ERP) equal to one percent of authorized analog FM power (20 decibels below carrier or −20 dBc). Subsequently, the Commission adopted this as the maximum digital power level for the hybrid digital mode of the FM IBOC system. In 2010, the Commission's Media Bureau (Bureau) released an Order increasing the allowable power level of the FM station's digital sidebands from −20 dBc to −14 dBc, upon electronic notification to the Commission. The Bureau further allowed certain FM stations to increase digital power above −14 dBc, to up to −10 dBc, upon a showing that such power increase would comply with the formula in the Bureau's 2010 order, and therefore would not cause harmful interference to adjacent analog FM stations.

3. Petitioners in this rulemaking proceeding state that digital FM receiver penetration continues to grow: according to petitioners, there are over 90 million autos in the U.S. with digital receivers; receiver penetration has exceeded 40% in some markets; and almost 60% of new automobiles sold in the U.S. are equipped with digital IBOC receivers. Petitioners National Association of Broadcasters (NAB) and Xperi (successor to iBiquity) contend, however, that many stations have resisted adopting IBOC technology due to the inability to replicate their analog signal coverage with digital coverage, owing to the limits placed on digital sideband power. They maintain that the Commission, by its own admission, overprotected adjacent-channel FM analog stations when implementing the allowable FM digital power table set forth in the 2010 Bureau Order, and further state that 12 years of experience with the current FM digital power levels has yielded few if any complaints of interference from hybrid digital FM transmissions. As evidence for its contentions, petitioners NAB and Xperi attached an analysis of existing digital FM stations transmitting at the current allowable limit of −14 dBc, but whose digital signal substantially overlaps that of adjacent analog FM stations. They assert that in none of these real-world situations have there been any instances of digital-to-analog interference. NAB and Xperi further attached the results of their own field test, conducted under experimental authority, using three stations in the New York market, two adjacent “interfering” stations and one “interfered with” station. In this study the adjacent-channel digital stations operated first with FM digital signals at −14 dBc, and then at −10 dBc, while recordings were made of the adjacent channel analog station under each condition. According to a panel of listeners—consisting of NAB and Xperi employees—who evaluated the recordings, there was “no significant change or degradation of the desired [FM analog] signal when the 1st-adjacent channel interferer went from −14 dBc to −10 dBc” even though these stations were operating at levels far in excess of the levels permitted under the current methodology.

4. Asymmetric Sideband Petition. The Commission's existing rules assumed that digital power would be the same on both digital sidebands. NAB, Xperi, and National Public Radio (NPR), in the 2019 Asymmetric Sideband Petition, assert that with asymmetric sidebands a digital FM station could protect one adjacent analog FM station while concurrently increasing power on the other sideband frequency in order to expand its digital coverage and building penetration. These petitioners conducted a study that they state demonstrates that many more digital FM stations could increase power above −14 dBc on at least one sideband. Out of 10,875 digital FM stations studied, petitioners contend that 6,120 could increase power to −10 dBc under the current rules, whereas if asymmetric sidebands were allowed, an additional 3,496 stations could increase one sideband to −10 dBc, with another 532 being able to increase one sideband's power to between −14 and −10 dBc. These petitioners also noted that, under the current rules, stations may only request asymmetric sidebands under an experimental authorization. They argued that the need to request experimental authorization, and the temporary nature of such authorizations, discourages use of asymmetric sidebands, which in turn limits digital FM stations to the power level needed to protect the closer or higher-powered adjacent-channel analog FM station. Petitioners thus requested that the Commission amend its rules to allow FM stations to operate with asymmetric digital sidebands, without having to request experimental authorization to do so, in order to remove unnecessary regulatory barriers and promote broader adoption of terrestrial digital FM broadcasting. The Bureau sought comment on the consolidated Power Increase Petition and Asymmetric Sideband Petition in a Public Notice released November 28, 2022.

5. After review of the two consolidated petitions for rulemaking (Power Increase Petition and the Asymmetric Sideband Petition), and the comments filed in response, the Commission concluded that the record discloses sufficient reasons to justify the institution of a rulemaking proceeding seeking further comment on these proposals. The Commission tentatively concluded that the proposals in both the Power Increase Petition and the Asymmetric Sideband Petition represent steps toward improving the terrestrial digital FM broadcast radio service. The Commission seeks comment on its proposal to allow additional stations to increase FM digital power levels, to authorize asymmetric sideband power levels without the need for experimental authorization, and to rely on existing interference mitigation and remediation processes, and notification procedures.

6. Power Increase Petition. The Commission proposed to amend its rules to change its power increase methodology and notification procedures, consistent with the Petition. Specifically, it proposed to change the methodology used by digital FM stations to determine whether they are eligible to increase digital FM power up to −10 dBc, or 10% of analog power. It also proposed that such increases be allowed without the need for additional individual special authorization, but upon basic notification to the Commission. It further proposed that stations notify the Commission of a power increase up to −10 dBc in the Bureau's Licensing and Management System (LMS), using the same notification procedures as currently used to notify the Commission of digital operation up to −14 dBc.

7. Maximum Permissible FM Digital ERP Table. The Commission proposed to amend its rules to modify the methodology a digital FM station must use to determine whether it is eligible to increase its power above −14 dBc. This modification, if adopted, would allow more stations to increase power up to −10 dBc without the requirement of submitting a contour analysis. Secondary services such as LPFM and FM translators are eligible to operate in hybrid mode. To the extent that such a secondary service station seeks to increase its digital power, it would use the same methodology set forth herein. As summarized above, currently a digital FM station may operate with digital power up to −14 dBc. Additionally, a digital FM station could apply to operate with power of up to −10 dBc (10% of analog power), pursuant to the current methodology. Petitioners asserted that the intervening dozen years of experience with the established 2010 power limits, as well as follow-up field tests and other studies, demonstrate that most digital FM stations should be able to operate at power levels of up to −10 dBc without special Commission authorization, and without causing interference to adjacent channel FM facilities. They proposed an updated table for determining maximum permissible FM Digital ERP as follows:

On July 24, 2023, FRA provided information in the rulemaking docket about the accidents that were analyzed by FRA in the regulatory impact analysis. 1 In an August 5, 2023, petition, the American Short Line and Regional Railroad Association (ASLRRA) requested a 30-day extension of the NPRM's  2 comment period to analyze the information and its impact on ASLRRA's member railroads.

The comment period for this NPRM is scheduled to close on August 30, 2023. 3 As FRA is partially granting ASLRRA's request, the comment period is now extended 15 days to September 14, 2023.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to https://www.regulations.gov, as described in the system of records notice, DOT/ALL-14 FDMS, accessible through www.dot.gov/privacy. To facilitate comment tracking and response, we encourage commenters to provide their name, or the name of their organization; however, submission of names is completely optional. Whether or not commenters identify themselves, all timely comments will be fully considered. If you wish to provide comments containing proprietary or confidential information, please contact the agency for alternate submission instructions.

On July 28, 2023, FRA provided information in the rulemaking docket about the accidents that were analyzed by FRA in the regulatory impact analysis. 1 In an August 5, 2023, petition, the American Short Line and Regional Railroad Association (ASLRRA) requested a 30-day extension of the NPRM's  2 comment period to analyze the information and its impact on ASLRRA's member railroads.

The comment period for this NPRM is scheduled to close on August 30, 2023. 3 As FRA is partially granting ASLRRA's request, the comment period is now extended 15 days to September 14, 2023.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to https://www.regulations.gov, as described in the system of records notice, DOT/ALL-14 FDMS, accessible through www.dot.gov/privacy. To facilitate comment tracking and response, we encourage commenters to provide their name, or the name of their organization; however, submission of names is completely optional. Whether or not commenters identify themselves, all timely comments will be fully considered. If you wish to provide comments containing proprietary or confidential information, please contact the agency for alternate submission instructions.

On May 23, 2023, TSA issued its NPRM entitled Vetting of Certain Surface Transportation Employees (88 FR 33472), and provided the public 90 days to submit comments on the proposal, or until August 21, 2023. Interested parties have requested an extension of the public comment period to give them additional time to respond to the NPRM. While TSA believes that the current 90-day comment period is sufficient for full and meaningful public participation, TSA agrees to extend the comment period to October 1, 2023, to allow the public an additional period to prepare and file comments.

TSA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from this rulemaking action, as well as on TSA's collections of information under the Paperwork Reduction Act as described further below. See the ADDRESSES section above for information on where to submit comments.

With each comment, please identify the docket number at the beginning of your comments, reference a specific portion or section of the rulemaking, explain the reason for any recommended change, and include supporting data. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

You may submit comments and material electronically, by mail, or fax as provided under the ADDRESSES section, but please submit your comments and material by only one means. If you submit comments by mail or delivery, submit them in an unbound format, no larger than 8.5 by 11 inches, suitable for copying and electronic filing.

If you would like TSA to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard or envelope on which the docket number appears and we will mail it to you.

All comments, except those that include confidential or sensitive security information (SSI)  1 will be posted to https://www.regulations.gov, and will include any personal information you have provided. Should you wish your personally identifiable information redacted prior to filing in the docket, please clearly indicate this request in your submission to TSA. TSA will consider all comments that are in the docket on or before the closing date for comments and will consider comments filed late to the extent practicable. The docket is available for public inspection before and after the comment closing date.

Do not submit comments that include trade secrets, confidential commercial or financial information, SSI, or protected critical infrastructure information to the public regulatory docket. Comments containing this type of information should be submitted separately from other comments, appropriately marked as containing such information, and submitted by mail to the addresses listed in the FOR FURTHER INFORMATION CONTACT section. TSA will take the following actions for all submissions containing SSI:

• TSA will not place comments containing SSI in the public docket and will handle them in accordance with applicable safeguards and restrictions on access.

• TSA will hold documents containing SSI, confidential business information, or trade secrets in a separate file to which the public does not have access, and place a note in the public docket explaining that commenters have submitted such documents.

• TSA may include a redacted version of the comment in the public docket.

• TSA will treat requests to examine or copy information that is not in the public docket as any other request under the Freedom of Information Act (5 U.S.C. 552) and the Department of Homeland Security's (DHS) Freedom of Information Act regulation found in 6 CFR part 5.

Please be aware that anyone is able to search the electronic form of all comments in any of our dockets by the name of the individual, association, business entity, labor union, etc., who submitted the comment. For more about privacy and the docket, review the Privacy and Security Notice for the Federal Docket Management System at https://www.regulations.gov/privacyNotice, as well as the System of Records Notice DOT/ALL 14—Federal Docket Management System (73 FR 3316, January 17, 2008) and the System of Records Notice DHS/ALL 044—eRulemaking (85 FR 14226, March 11, 2020).

You may review TSA's electronic public docket at https://www.regulations.gov. In addition, DOT's Docket Management Facility provides a physical facility, staff, equipment, and assistance to the public. To obtain assistance or to review items in TSA's public docket, you may visit this facility between 9 a.m. and 5 p.m., Monday through Friday, excluding legal holidays, or call (202) 366-9826. This DOT facility is located in the West Building Ground Floor, Room W12-140 at 1200 New Jersey Avenue SE, Washington, DC 20590.

You can find an electronic copy of this rulemaking using the internet by accessing the Government Publishing Office's web page at https://www.govinfo.gov/app/collection/FR/to view the daily published Federal Register edition or accessing the Office of the Federal Register's web page at https://www.federalregister.gov. Copies are also available by contacting the individual identified for “General Questions” in the FOR FURTHER INFORMATION CONTACT section.

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 an endangered species 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 toothless blindcat and widemouth blindcat both meet the definition of an endangered species; therefore, we are proposing to list both as such. Listing a species as an endangered or threatened species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. We propose to list the toothless blindcat and the widemouth blindcat as endangered species under the Act.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the toothless blindcat and widemouth blindcat are endangered due to the threat of mortality from groundwater well pumping (Factor E).

The toothless blindcat and the widemouth blindcat occupy a limited range, and populations of both species have likely been severely reduced since the introduction of groundwater wells in the late 19th to early 20th centuries. The lethal discharge of the species through groundwater wells could potentially impact the populations directly, with an estimated cumulative loss of thousands of individuals. Additionally, the assumed life history traits (such as increased age at first reproduction, lower numbers of reproductively active females, reduced numbers of eggs, slower growth rates, and longer life spans) of both species make them more susceptible to long-term impacts on demographic structure in the form of lower numbers of sexually mature fish, reduced reproductive output, and diminished recruitment of younger individuals.

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary), to the maximum extent prudent and determinable, to designate critical habitat concurrent with listing. We have determined that designating critical habitat for the toothless blindcat and widemouth blindcat is not prudent because the main driver of both species' status is direct mortality resulting from groundwater well pumping (Factor E). The wells constructed in blindcat habitat are not affecting the species through habitat destruction or modification; instead, it is the capture, entrainment, and death of individuals due to uptake from groundwater well pumping that threatens the species. Since we have determined that the present or threatened destruction, modification, or curtailment of both species' habitats or range is not a threat to the toothless blindcat or the widemouth blindcat, we determine that designation of critical habitat is not prudent for the species.

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, ranges, 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 ranges, including distribution patterns and the locations of any additional populations of these species;

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

(e) Past and ongoing conservation measures for these species, their habitats, or both.

(2) Threats and conservation actions affecting these species, including:

(a) Factors that may be affecting 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.

(b) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species.

(c) Existing regulations or conservation actions that may be addressing threats to these species.

(3) Additional information concerning the historical and current status of these species.

(4) Information regarding our determination that designating critical habitat for the toothless blindcat and widemouth blindcat is not prudent.

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.

Our final determinations may differ from this proposal because we will consider all comments we receive during the comment period as well as any information that may become available after this proposal. Based on the new information we receive (and, if relevant, any comments on that new information), we may conclude that one or both of these species is threatened instead of endangered, or we may conclude that one or both of these species does not warrant listing as either an endangered species or a threatened species. In our final rule, we will clearly explain our rationale and the basis for our final decisions, including why we made changes, if any, that differ from this proposal.

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).

We identified the toothless blindcat and widemouth blindcat as category 2 candidates in our December 30, 1982, candidate notice of review (CNOR) (47 FR 58454). Category 2 candidates were defined as taxa for which we had information indicating that proposing to list the species was possibly appropriate, but for which substantial data were not available to biologically support a proposed rule. Both species remained so designated in subsequent CNORs (50 FR 37958, September 18, 1985; 54 FR 554, January 6, 1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). In our February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of category 2 species as candidates; therefore, the toothless blindcat and widemouth blindcat were no longer candidate species.

In August 1995, we received a petition from the American Society of Ichthyologists and Herpetologists (ASIH) and the Desert Fishes Council. The petition was to list three species, including the toothless blindcat and widemouth blindcat (ASIH 1995, entire). Subsequently, in 1998, we published a 90-day finding that the petition did not present substantial information indicating that these species warranted listing (63 FR 48166; September 9, 1998).

On June 25, 2007, we received a petition dated June 18, 2007, from Forest Guardians (now WildEarth Guardians) to list 475 species, including the toothless blindcat and widemouth blindcat, in the southwestern United States as endangered or threatened species and to designate critical habitat under the Act (Forest Guardians 2007, entire). On December 16, 2009, we published a partial 90-day finding (74 FR 66866) on 192 species from that petition; in that document, we announced that the petition presented substantial information that listing the toothless blindcat and widemouth blindcat may be warranted.

A species status assessment (SSA) team prepared an SSA report for the toothless blindcat and widemouth blindcat. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the 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 toothless blindcat and widemouth blindcat SSA report (Service 2022, entire). We sent the SSA report to six independent peer reviewers and received four responses. Results of this structured peer review process can be found at https://www.regulations.gov under Docket No. FWS-R2-ES-2023-0069. 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 in Peer Review, above, we received comments from four peer reviewers on the draft SSA report. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the content of the SSA report. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the SSA. One peer reviewer questioned assumptions related to groundwater well mortality and habitat connectivity. Our review of the best available information regarding the impact of anthropogenic mortality (such as well mortality) on fish species similar to the toothless and widemouth blindcats (that is, fish species that are subterranean, are long-lived, and have reduced reproductive capacity) supports the findings of the SSA.

A thorough review of the taxonomy, life history, and ecology of the toothless blindcat ( Trogloglanis pattersoni ) and widemouth blindcat ( Satan eurystomus ) is presented in the SSA report (Service 2022, entire).

The toothless blindcat and widemouth blindcat are cavefish endemic to the San Antonio segment of the Edwards Aquifer in Bexar County, Texas. They inhabit a deep, inaccessible subterranean region of the aquifer, with all known specimens of both species having been collected from groundwater wells at depths at or greater than 308 meters (m) (1,010 feet (ft)). The toothless blindcat and the widemouth blindcat are members of the catfish (Siluriformes) family Ictaluridae, and are the only members of their respective genera, Trogloglanis and Satan (Arce-H et al. 2017, pp. 406-407, 415).

The toothless blindcat and widemouth blindcat occur in a very deep portion of the San Antonio segment of the Edwards Aquifer, where they can likely move through the groundwater flowing through a system of interconnected subterranean conduits (Ford and Williams 2007, pp. 103-106, 112-114; Culver and Pipan 2009, pp. 5-8; Veni 2012, pp. 603-608; White 2012, pp. 383-386). These caves and conduits are formed in the rock layers of the Edwards Aquifer through dissolution by groundwater (Livingston et al. 1936, pp. 72-73; Petitt and George 1956, p. 16; Maclay and Small 1986, p. 61).

Due to their deep subterranean habitat, the toothless blindcat and widemouth blindcat exhibit several stygomorphic (adaptations to subterranean conditions) characteristics, including depigmentation, absence of fully developed eyes, and short lateral line canals (Lundberg 1982, pp. 77-78; Langecker and Longley 1993, pp. 978-980; Lundberg et al. 2017, pp. 163-164). Blindcats lack scales and possess eight barbels (whisker-like sensory organs) arranged around the snout and mouth (Eigenmann 1919, p. 398; Hubbs and Bailey 1947, pp. 5, 10; Lundberg 1982, p. 16; Burr et al. 2020, p. 42). The toothless blindcat and widemouth blindcat appear to be among the smallest known catfishes, reaching total lengths of up to 103.8 millimeters (mm) (4.1 inches (in)) and 136.9 mm (5.4 in), respectively (Hubbs and Bailey 1947, pp. 8-10, 12-14; Suttkus 1961, pp. 62-63; Lundberg 1982, pp. 10-11; Langecker and Longley 1993, p. 977; Burr et al. 2020, p. 26).

The toothless blindcat lacks teeth, and its jaw is thin and papery with a funnel-like mouth positioned ventrally below the snout (Hubbs and Bailey 1947, pp. 5, 11-12; Lundberg 1982, pp. 15-16). The widemouth blindcat possesses well-developed teeth, a robust jaw, and a larger mouth positioned transversely at the depressed and flat snout (Hubbs and Bailey 1947, p. 5). From their jaw and mouth morphology, as well as specimen stomach contents, we infer that the toothless blindcat is a detrivore that feeds on biofilm and other organic material, whereas the widemouth blindcat is likely an opportunistic predator capable of taking sizeable prey (Longley and Karnei 1978a, pp. 31, 34; Lundberg et al. 2017, pp. 160, 162).

There is documentation of toothless blindcat individuals being expelled from eight wells and widemouth blindcat individuals from five wells, with overlapping expulsions at two wells (Zara Environmental 2020, pp. 11-12; Diaz 2021, p. 30). Wells that have produced the species are relatively close, with an average distance between wells of 4.5 kilometers (km) (2.8 miles (mi)) for the toothless blindcat and 6.3 km (4.0 mi) for the widemouth blindcat (Service 2022, p. 45). Given the potential for hydrogeological connectivity, the species likely exist as single sympatric subterranean populations. Well depth ranges from 308 m (1,010 ft) to 582 m (1,909 ft) (Zara Environmental 2020, pp. 14-23), making these species some of the deepest known cavefish (Trajano 2001, p. 140; Fišer et al. 2014, p. 976). These wells are distributed along a southwest to northeast trending line through Bexar County, roughly paralleling the southeastern boundary of the aquifer's artesian zone. The artesian zone of the Edwards Aquifer is where hydraulic pressure of groundwater forces water to the surface, where the water escapes through springs, seeps, or wells drilled into the aquifer (Lindgren et al. 2004, pp. 35, 39-40).

The southeastern extent of the artesian zone represents the limit of freshwater in the Edwards Aquifer (Hovorka et al. 1995, p. 3; Sharp and Smith 2019, pp. 151-152). Groundwater from the aquifer's artesian zone is considered high-quality with low dissolved solids ranging from 300 to 500 milligrams/liter (mg/l) (Petitt and George 1956, p. 76; Maclay et al. 1980, p. 8). To the southeast of the artesian zone, dissolved solids increase and the groundwater becomes progressively more saline (Groschen 1993, pp. 2, 7; Groschen and Buszka 1997, pp. 1-3). The contact point where freshwater ( i.e., <1,000 mg/l dissolved solids) generally meets saline water ( i.e., >1,000 mg/l) is termed the “freshwater/saline-water interface” (Arnow 1959, p. 40; Maclay et al. 1980, p. 10; Groschen 1993, p. 2; Groschen and Buszka 1997, pp. 1, 3). All wells where blindcats have been expelled occur just to the northwest of the freshwater/saline-water interface on the freshwater side.

Neither blindcat species has ever been directly observed in its natural subterranean habitat, but we can infer the species' needs from their location and from the life-history of other cavefish species. Subterranean habitat for the toothless blindcat and widemouth blindcat appears to be centered in an area of greater aquifer permeability in Bexar County (Maclay 1995, pp. 26-27; Hovorka et al. 1996, pp. 50, 54-57; Hovorka et al. 2004, p. 19). Concentrated groundwater flow in this area has likely resulted in the formation of enlarged faults, fractures, and cavernous openings that provide suitable physical habitat for the blindcats (Lindgren et al. 2004, pp. 16).

The area along the freshwater/saline-water interface is likely an area of focused groundwater movement due to greater porosity and permeability in that area (Maclay and Small 1986, p. 66; Hovorka et al. 1996, pp. 50, 54-57; Worthington 2003, pp. 16, 20, 23-24; Hovorka et al. 2004, pp. 19, 42; Lindgren et al. 2004, pp. 11, 15, 17-21, 26). We infer the importance of this location for these species from the hydraulic connectivity and the existence of aquifer food resources at great depth near this interface (Birdwell and Engel 2009, pp. 153-155; Engel and Randall 2011, pp. 313-314, 318; Hutchins et al. 2013, pp. 254-255; Bishop et al. 2014, pp. 90-91; Hutchins et al. 2016, pp. 1535-1539). Due to the historical absence of human-related contamination, we also infer that the toothless blindcat and widemouth blindcat are adapted to and require groundwater of a certain quality from the Edwards Aquifer that is relatively free of anthropogenic contaminants.

Longevity and reproduction of the toothless blindcat and widemouth blindcat is not known but can be inferred from other cavefish species. Cavefishes are generally characterized by life history traits such as increased age at first reproduction, lower numbers of reproductively active females, reduced numbers of eggs, slower growth rates, and longer life spans (Poulson 1963, pp. 266, 268, 275; Trajano 1997, p. 367; Trajano 2001, pp. 152-153; Trajano and Bichuette 2007, p. 114; Niemiller and Poulson 2010, pp. 220-227, 232-235; Secutti and Trajano 2021, p. 103). Estimated lifespans of other cavefish range from 8 to 45 years (Niemiller and Poulson 2010, p. 226; Trajano 1997, p. 367; Trajano 2001, pp. 151-152; Trajano and Bichuette 2007, p. 114; Secutti and Trajano 2021, p. 103).

Because the blindcats are cavefish, we assume that age at first reproduction for the toothless blindcat and widemouth blindcat is likely older than 2 years of age, and the age at reproductive maturity is likely 6 years of age or older; this is older than the age at first reproduction for surface catfish species and similar to or older than the age of reproductive maturity for the northern cavefish (Niemiller and Poulson 2010, p. 221). Also, like other cavefishes (Niemiller and Poulson 2010, pp. 221-222), we assume that only a fraction (3 percent to 13 percent) of female toothless blindcats and widemouth blindcats produce offspring on an annual basis. Clutch size is likely comparable to the small clutches produced by Noturus species (fewer than 200 eggs). Adult toothless blindcats and widemouth blindcats probably reach significant ages for catfishes, with maximum ages of multiple decades (more than 25 years). The toothless blindcat and widemouth blindcat inhabit a subterranean system that is well-buffered from immediate seasonal changes. However, seasonality of reproduction cannot be dismissed, as these fish may respond to periods of high or low groundwater flow in relation to aquifer recharge.

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 the foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of these 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 endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies.

To assess the viability of the toothless blindcat and the widemouth blindcat, 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 these 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 both individual species' life-history needs. The next stage involved an assessment of the historical and current condition of each 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 which we then used 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-R2-ES-2023-0069 on https://www.regulations.gov.

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

Both species of blindcats are assumed to have potentially numbered in the tens of thousands of individuals historically (Trajano 2001, pp. 145-146; Service 2022, pp. 43-44). Due to the toothless blindcat being in a lower trophic level as a detrivore and the widemouth blindcat being in a higher trophic level as a predator, we assume the population of the widemouth blindcat is smaller than that of the toothless blindcat (Trajano 2001, p. 145). Adequate population size at sufficient density is needed for both species to access mates for reproduction and withstand stochastic events. Mortality events in long-lived, reproductively constrained fish populations can have prolonged impacts on population demographics, including reduced numbers of sexually mature fish, reduced reproductive output, and diminished recruitment of younger individuals (Adams 1980, p. 7; Heppell et al. 2005, pp. 213-214, 217; Graening et al. 2010, pp. 74-75; Whiterod et al. 2018, pp. 622-626). Representation among various age-classes is needed to support recruitment of sexually mature adults to maintain adequate population sizes (Adams 1980, pp. 2-7; Poulson 2001, pp. 354-357; Hsieh et al. 2010, pp. 167-176).

The toothless blindcat and widemouth blindcat inhabit subterranean voids of sufficient size and connectivity within the Edwards Aquifer. The species' occurrence from multiple wells along a southwest to northeast trending line in Bexar County suggests that the ranges of both species might be relatively continuous. Subterranean networks of water-filled conduits can facilitate gene flow through the water-filled voids of aquifers (Chippindale 2009, pp. 8-9; Vörös et al. 2018, p. 217; Corbin 2020, p. 75; Falniowski et al. 2021, pp. 4979-4980, 4985-4986; Grego and Pešić 2021, pp. 68, 73-74). Both fish species use these connected areas for dispersal, foraging, and reproduction (Service 2022, pp. 29-37, 44-45).

Sufficient volumes of groundwater are needed to fill subterranean void space and provide dispersal corridors for the species within a narrow band of the Edwards Aquifer. The region of the aquifer these species inhabit is an area of significant groundwater flow (Maclay and Small 1986, p. 66; Hovorka et al. 1996, pp. 50, 54-57; Worthington 2003, pp. 16, 20, 23-24, 31-32; Hovorka et al. 2004, pp. 19, 42; Lindgren et al. 2004, pp. 11, 15, 17-21, 26).

Over millions of years, both the toothless blindcat and widemouth blindcat have evolved to very deep aquifer conditions, including the water quality at these depths. Thus, they likely need water quality that matches natural aquifer conditions, including a pH of 7-8, a consistent temperature around 28 degrees Celsius (°C) (82 degrees Fahrenheit (°F)), specific conductivity between 465-482 microsiemens per centimeter (µS/cm), and relatively free of contaminants (Karnei 1978, pp. 115-116; Service 2022, pp. 37-41).

Subterranean systems at great depths and without direct connections to the surface are often isolated from surface sources of organic matter (Akob and Küsel 2011, p. 3534; Hubalek et al. 2016, pp. 2447-2448; Itävaara et al. 2016, pp. 4, 6-8). Instead, food webs in these settings may be based on microbial production of organic carbon from inorganic materials in a process termed chemolithoautotrophy (Engel 2007, pp. 187-188). Microbes involved in chemolithoautotrophy include a wide range of bacteria and fungi adapted to the extreme conditions (such as high pressure and high salinity) of the deep subsurface (Amend and Teske 2005, pp. 145-147; Engel 2007, p. 188; Akob and Küsel 2011, pp. 3534, 3236; Itävaara et al. 2016, pp. 3-4, 20-22). The toothless blindcat is believed to be a detrivore that feeds on bacterial biofilms. The widemouth blindcat is hypothesized to be a predator that feeds on groundwater invertebrates and potentially suitably sized toothless blindcats. For both species to persist, they need a functional chemolithoautotrophic food web in an undegraded condition. Because groundwater in the Edwards Aquifer originates from precipitation and stream runoff, infusion of surface-borne nutrients to toothless blindcat and widemouth blindcat habitat cannot be discounted and may play some role in the deep aquifer food web. However, no accounts detailing surface-borne nutrient presence at great aquifer depth have been published to date.

We reviewed the potential threats that could be currently affecting the toothless blindcat and the widemouth blindcat. In this proposed rule, we will discuss only those threats in detail that could meaningfully impact the status of either species (a more in-depth analysis of all potential threats can be found in the SSA report (Service 2022, pp. 54-61, 87-95). We conducted a thorough analysis of threats to groundwater quality in terms of degradation due to pollutants and other contaminants and threats to groundwater quantity in the form of pumping and climate change. We found that while these threats may impact the species, they are not likely to have effects at the population or species level. For example, groundwater contamination has the potential to impact the toothless blindcat and widemouth blindcat (Service 2022, pp. 60-61). However, because of the depth of the species' habitat and the thick impermeable rock layer covering it, groundwater contamination is not a primary threat for the status of the toothless blindcat or the widemouth blindcat. Similarly, because of the depth of the species' habitat, groundwater quantity to support habitat for the fishes has not experienced change from historical conditions. Aquifer water levels where the blindcats reside show no evidence of long-term decline, even at times of prolonged drought and unregulated pumping (Maclay 1995, pp. 48, 52; Lindgren et al. 2004, 40-41, 45). In addition, management of groundwater withdrawals from the San Antonio segment has been in place since the late 1990s (National Research Council 2015, pp. 24-27, 29, 32-36; National Academies of Sciences, Engineering, and Medicine 2018, pp. 7-8, 109, 152; Hardberger 2019, pp. 193-194; Payne et al. 2019, p. 199) and pumped volumes have decreased since 2008 (Service 2022, pp. 80-81). Flow protection measures are in place that principally protect the two largest spring systems in the region (Comal Spring and San Marcos Spring systems), but those measures also benefit water levels deeper in the aquifer. We also note that, while competition with exotic species was identified in our 90-day finding (74 FR 66866; December 16, 2009) as a potential threat, a thorough review of the literature and consultation with experts revealed no evidence of exotic species competing with or otherwise impacting either species. The primary threat affecting the status of the toothless blindcat and the widemouth blindcat is mortality through groundwater well uptake (Factor E).

Prior to well drilling and extraction of groundwater from the Edwards Aquifer in the late 19th century, the toothless blindcat and widemouth blindcat were unaffected by anthropogenic surface activities given the substantial depth of their habitat and the layers of impermeable rock that separated that habitat from the surface. Extraction of groundwater from wells represented a new and nearly constant stressor impacting both species' populations. Well mortality is currently the most direct and observable anthropogenic agent of mortality for both species. No toothless blindcat or widemouth blindcat expelled from groundwater wells has survived for any extended period, and many specimens are ejected mangled and dead due to battering as they are forced to the surface.

In Bexar County, the drilling of wells to meet public supply and irrigation demands began in the late 1880s (Livingston et al. 1936, p. 87; Petitt and George 1956, p. 44). The existence of the toothless blindcat and widemouth blindcat was only documented through individual fish expelled from groundwater wells in the early 20th century (Eigenmann 1919, pp. 397, 399-400; Hubbs and Bailey 1947, pp. 1, 4-11). More than 1,500 wells were drilled in Bexar County by 1953, with 250 wells being large capacity ( i.e., 25-76 centimeters (cm) (10-30 in) in diameter) (Petitt and George 1956, p. 44; Maclay 1995, p. 43), with additional large capacity wells drilled during the 1950s across the City of San Antonio and Bexar County (Petitt and George 1956, p. 47; Arnow 1959, pp. 24, 29). Until 1996, groundwater extraction in Bexar County was completely unregulated, with no restrictions on well capacity, volumes of water discharged, or groundwater waste (Miller 2005, pp. 172-173; Gulley 2015, p. 2; Mace 2019, p. 208). From 1939 to 2000, annual groundwater withdrawals increased by an average of 5,550,660 cubic meters (m 3 ) (4,500 acre-feet (ac-ft)) per year (Lindgren et al. 2004, pp. 35-36). As of September 28, 2022, the Texas Water Development Board (2022, unpaginated) lists 307 active wells, at depths of more than 300 m (984 ft), that access the artesian zone of the Edwards Aquifer in Bexar County.

The additive effect of anthropogenic mortality on cavefishes has been studied for only a few taxa. Cavefish exhibit delayed maturity, reduced fecundity, low mortality, and longer lifespans (Pianka 1970, p. 592; Bichuette and Trajano 2021, p. 2). Because cavefish have few offspring, the loss of individuals can have a substantial effect on the population; any fish that is killed does not survive to reproduce and contribute individuals to the population in the future. The Ozark cavefish ( Amblyopsis rosae ) is one example of the long-lasting impact of anthropogenic mortality. After the impact of human threats, populations of this species skewed towards older individuals with few younger fish present (Service 1989, p. 7; Graening et al. 2010, pp. 74-75). It was not until the 2000s, after a multi-decade period of recovery following the legal prohibition against collection, that a larger proportion of younger Ozark cavefish began to appear in populations, indicating the cessation of adult capture and the successful recruitment of juvenile fish (Graening et al. 2010, pp. 74-75).

Several deep-sea fishes also have similar life-history traits as cavefishes, including production of fewer and larger eggs, delayed sexual maturity, extended longevities, and roles as top predators in their respective systems (Poulson 2001, pp. 350, 357). Deep-sea fishes have been better studied regarding their response to anthropogenic mortality in the form of fishing (Adams 1980, pp. 1-2). Taxa such as orange roughy ( Hoplostethus atlanticus ), Patagonian toothfish ( Dissostichus eleginoides ), and other deep-sea species are very sensitive to overfishing (Adams 1980, pp. 4-5; Heppell et al. 2005, pp. 211-212). Fishing operations often target adult size classes that are slow to recruit into populations, which can lead to decreased egg production (Heppell et al. 2005, pp. 213-214, 217). As a result, deep-sea fish populations are slow to recover ( i.e., multiple decades) from harvesting pressure due to reduced reproductive capacity (Adams 1980, p. 7; Whiterod et al. 2018, pp. 622-626).

The toothless blindcat and widemouth blindcat are among the oldest cavefishes in North America (Arce-H et al. 2017, pp. 421, 425). Both species, which are some of the deepest dwelling among known cavefishes, evolved over millions of years to inhabit very deep aquifer conditions (Trajano 2001, p. 140; Fišer et al. 2014, p. 976). The environmental stressors that typically affect and influence shallow subterranean systems (such as flooding, drying of cave passages/streams, and reduced surface nutrient input) are presumed to not operate, or are muted, at the depths where the blindcats occur. The deep artesian zone of the Edwards Aquifer provides a stable nutrient source (chemolithoautotrophy), consistent water quality (decades old groundwater), and very attenuated responses to climatic changes (temperature changes) on the surface. Given their long evolutionary history, the toothless blindcat and widemouth blindcat have life history traits that make them comparable to, if not more sensitive than, most other cavefishes in their response to increased loss of individuals from their populations.

While cavefish collection and deep-sea fishing removes larger size-class fish, loss of toothless blindcats and widemouth blindcats to groundwater pumping is plausibly size-indiscriminate. Wells extracting groundwater have the potential to remove blindcats at all life stages given that motile life stages move through water-saturated voids and are thus likely pelagic. Blindcats observed or collected from groundwater wells have been juveniles to adults. No eggs or smaller size classes ( e.g., larvae or fry) of either species have been reported to date. It is unlikely that eggs or larvae are not expelled from wells along with juveniles and adults. Rather, as larger individuals of both species are often severely mangled as they are forced up wells, it is probable that similarly transported eggs and larvae are physically destroyed and not visually discernable.

Additionally, unlike discrete collection and fishing events, groundwater pumping operates over much longer and sustained time frames given demands for groundwater. On an annual basis, wells may operate for several continuous months during the growing season for agricultural irrigation or nearly year-round for industrial and public water supply. The operational lifespan of many Bexar County wells is several decades long ( e.g., more than 60 years; Service 2022, pp. 70-80). Consequently, there has likely been very limited opportunity for cessation of this stressor where wells intercept toothless blindcat and widemouth blindcat habitat. In essence, groundwater wells may constitute near-permanent population sinks that can result in the mortality of most blindcats at all life stages. Loss of immature and adult individuals would constrain population growth through reductions in egg production and recruitment of mature adults. The impact of groundwater well mortality on toothless blindcat and widemouth blindcat populations could be substantial, with the potential to expel substantial numbers of toothless blindcats and widemouth blindcats over their operational lifespans (see Current Condition, below; Longley and Karnei 1978a, p. 36; Longley and Karnei 1978b, p. 39; Service 2022, pp. 74-79).

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have analyzed the cumulative effects of identified threats and conservation actions on these species. To assess the current and future condition of these species, we evaluate the effects of all the relevant 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.

In the early 1990s, federal litigation ( Sierra Club v. Secretary of the Interior, No. MO-91-CA-069, U.S. District Court for the Western District of Texas) directed the Service to make determinations regarding minimum spring flows and aquifer levels necessary to support listed species occurring in the Comal Spring and San Marcos Spring systems. The Service produced a recovery plan with that guidance in 1996 (Service 1996, entire). Another outcome of litigation was the creation, in 1993, of the Edwards Aquifer Authority by the State of Texas to manage groundwater withdrawals (by nonexempt wells) from the San Antonio segment of the Edwards Aquifer (National Research Council 2015, pp. 24-26; Hardberger 2019, pp. 193-194; Payne et al. 2019, p. 199). The regulatory area of the Edwards Aquifer Authority includes all or a portion of Bexar, Comal, Hays, Medina, and Uvalde Counties.

The Edwards Aquifer Authority developed a habitat conservation plan, approved by the Service in 2013, which provides measures to minimize and mitigate take of the nine listed species related to covered activities (National Research Council 2015, pp. 27, 29, 32-36; RECON Environmental, Inc. 2021, pp. 3-55-3-67). Covered activities include groundwater withdrawals for drinking water supplies and irrigation as well as recreational activities (National Research Council 2015, pp. 32-36; RECON Environmental, Inc. 2021, pp. 2-1-2-16).

The voluntary minimization and mitigation measures of the plan are based on maintaining sufficient minimum flows at Comal Spring and San Marcos Spring to sustain listed species during a reoccurrence of prolonged drought conditions (National Research Council 2015, pp. 32-36; National Academies of Sciences, Engineering, and Medicine 2018, pp. 67-68; Service 2022, p. 64). A review of the Edwards Aquifer Habitat Conservation Plan suggests that flow protection measures, including groundwater modeling efforts, appear to be effective in meeting flow requirements of covered species (National Academies of Sciences, Engineering, and Medicine 2018, pp. 7-8, 109, 152). Additionally, volumes of groundwater pumped from the San Antonio segment of the Edwards Aquifer have decreased since 2008 (Service 2022, pp. 64-65).

The toothless blindcat and widemouth blindcat are not included in the habitat conservation plan because the plan's actions are most applicable to spring-dwelling species that inhabit upper portions of the Edwards Aquifer (RECON Environmental, Inc., pp. 1-9). However, protection of sustained flow at the Comal Spring and San Marcos Spring systems does provide overarching protection for species that inhabit deep portions of the San Antonio segment. Persistence of surface discharge at those spring systems suggests that deeper levels of the aquifer have not been appreciably reduced and remain water-saturated (Maclay 1995, pp. 48, 52; Lindgren et al. 2004, 40-41, 45).

An additional conservation measure is land protection efforts by the City of San Antonio's Edwards Aquifer Protection Program (Stone and Schindel 2002, pp. 38-39; Carnett 2022, unpaginated). In 2000, San Antonio passed Proposition 3, an initiative to fund the acquisition (fee-simple and conservation easements) of open space to protect the contributing and recharge zones of the aquifer in Bexar County (Romero 2018, p. 2). That program was reapproved in 2005, 2010, and 2015, with additional funds to acquire open space (Reilly and Carter 2018, pp. 1-3-1-5). The effort was later expanded to acquire lands in Medina and Uvalde Counties that contain larger portions of the Edwards Aquifer's contributing and recharge zones (Romero 2018, pp. 5-6, 8). The dedicated sales tax expired in 2021, with 97,124 hectares (240,000 acres) acquired under the Edwards Aquifer Protection Program (Carnett 2022, unpaginated). The City of San Antonio recently approved an alternative funding stream to support land acquisitions through the commitment of $100 million over 10 years (Carnett 2022, unpaginated). Protection of open space has the potential to reduce the impacts of development (for example, run-off from impervious cover, fertilizer applications, and wastewater) and maintain aquifer recharge (Reilly and Carter 2018, pp. 3-2, 3-6; Romero 2018, pp. 5-6).

Several other entities also have measures to protect groundwater from contamination. These entities include the Edwards Aquifer Authority's Aboveground Storage Tank Program, Agricultural Secondary Containment Assistance Program, and Abandoned Well Program, among others (Edwards Aquifer Authority 2022, unpaginated). The San Antonio Water System implemented several water quality protection measures including development regulations (City of San Antonio Code of Ordinances, chapter 34, article VI, division 6, Aquifer Protection Ordinance No. 81491) for properties over the contributing and recharge zones, review of building permits and master development plans, regulation of underground storage tanks, and commercial/industrial compliance (San Antonio Water System 2022, unpaginated).

To assess the current conditions of the toothless blindcat and widemouth blindcat, we established analysis units immediately around well sites with documented records of the toothless blindcat or widemouth blindcat (“immediate area analysis units”), as well as a larger area encompassing these smaller units (“potential area of occurrence”) in order to assess threats to the fishes in a more spatially extensive area with a potentially contiguous subterranean system of voids within the aquifer. Neither of these units define populations but rather geographic areas we presume are areas of potential occupancy or areas that are important to or could influence both species' survival. The SSA report further details the methodology and rationale for creating these units (Service 2022, pp. 67-68).

Eight wells that historically produced toothless blindcat (six wells) and widemouth blindcat (four wells; two of which overlap with the toothless blindcat wells) have either been capped, plugged, or destroyed. Three wells that produced toothless blindcats (one of which also produced widemouth blindcats) are presumed to still operate, as we do not have access to the wells to confirm, nor do we have evidence to the contrary. Including these three wells, the immediate area analysis units contain a combined total of 27 active groundwater wells. Most of these wells are for agricultural irrigation or public water supply. The average age of these wells is 68 years, with the oldest well drilled in 1933 and the latest in 1985. Seventeen wells in the analysis units have been abandoned, plugged, or destroyed, including historical blindcat wells. Besides the documented blindcat wells in the analysis units, only 1 of the 24 active wells has ever been sampled for blindcats due to lack of access.

In the larger potential area of occurrence, a total of 82 active groundwater wells are established, including the active blindcat wells. Most of these wells are used for irrigation, public water supply, and industrial purposes. Primary water uses of the remaining wells are for aquaculture, domestic purposes, and livestock. Average age of active wells is 66 years, with the earliest wells drilled in 1915 and most recent in 2020. There are 36 abandoned, plugged, or destroyed wells in the potential area of occurrence. The four wells that have been sampled in this area showed no evidence of either blindcat species (Karnei 1978, pp. 68-70; Zara Environmental 2010, p. 68; 2020, p. 10).

Researchers who have sampled groundwater wells for the toothless blindcat and widemouth blindcat have developed catch-per-unit-effort estimates for their sampling efforts (Longley and Karnei 1978a, pp. 35-36; 1978b, pp. 36, 38-40; Zara Environmental 2020, pp. 23-27). Catch per unit effort was expressed as volume of groundwater exiting a well to produce one individual of either species. Available estimates were based on surveys of toothless blindcat and widemouth blindcat populations that had already been subjected to several decades of unregulated groundwater extraction. The status of both blindcat species' populations prior to groundwater pumping is unknown, although it is known that both species experienced mortality once wells were established. It is plausible that, at the time of survey efforts (late 1970s and 2008 to 2014), toothless blindcat and widemouth blindcat population resiliency had already been diminished to some extent from past well mortality.

We assume that a higher catch per unit effort at a well, or lower volume of groundwater required to produce a single individual, may reflect larger blindcat populations. The highest catch per unit effort for both the toothless blindcat and widemouth blindcat comes from estimates for the Artesia Pump Station Well, with one toothless blindcat caught with every 65,000 m 3 (53 ac-ft) of groundwater and one widemouth blindcat caught with every 129,515 m 3 (105 ac-ft) of groundwater (see Table 1 below; Longley and Karnei 1978a, pp. 35-36; 1978b, pp. 36, 38-40).

We apply those estimates of catch per unit effort to estimate blindcat well mortality. These estimates of blindcat well mortality do not account for variability in distribution and extent of suitable blindcat habitat, fish abundances by site, well size and discharge capacity, periods of discharge (intermittent or constant), location of well casing relative to potential habitat, and reporting of discharged volumes. Complete data on those and other variables are not available.

Estimates of well mortality also only apply to assumed losses of larger juvenile and adult fishes. Catch per unit effort has never been developed for larvae and very small juveniles. The following estimates of well mortality will therefore be underestimates, as no data exist on loss of those life stages. Research on other cavefishes and deep-sea fishes with similar life history traits suggests that sustained loss of individuals, especially sexually mature fish, can result in reduced population sizes and changes in demographic structure.

To estimate average annual mortality, we examined pumped groundwater volume data available for 51 wells in the potential area of occurrence between the years of 2010 to 2017 (Edwards Aquifer Authority 2021, unpaginated). Using the annual average volume of groundwater pumped from all 51 wells, 10,401,411 m 3 (8,433 ac-ft), multiplied by the estimated catch per unit effort, 159 toothless blindcats and 80 widemouth blindcats may have been expelled from wells annually. This is likely an underestimate of losses, as it does not include losses of other immature stages, such as larvae or fry. These numbers could be higher still considering the remaining active wells for which pumped data are not available. Abandoned and plugged wells would have also contributed to past mortality during their operational lifespans.

Most wells in the potential area of occurrence have been in operation for multiple decades (average age of 66 years). To illustrate the potential total loss of blindcats to wells operated over several decades, we assigned the average annual volume discharged (calculated from three wells from 2010 to 2017) to all wells for all years between the completion of a well to 2021 (the latest year for which data were available). As we assume the blindcats have long lifespans, the likelihood that individuals will encounter the capture zone of an active groundwater well increases over time. Wells operating over several decades, and discharging relatively moderate volumes of groundwater, could result in the loss of over a thousand toothless blindcats and several hundred widemouth blindcats per individual well (see Table 1 below, Service 2022, p. 77).

In addition to the estimated loss from moderate capacity wells, greater capacity wells have been drilled in or near the potential area of occurrence, but data are lacking regarding their historical discharge volumes. The following mortality estimates for larger capacity wells further illustrate the potential impact high volume wells could have on blindcat numbers over decades of operation.

In 1941, San Antonio Public Service Company Well 4 was drilled to a depth of 314 m (1,032 ft) (Livingston 1942, p. 1; Petitt and George 1956, p. 47). That well is approximately 2.4 km (1.5 mi) to the northeast of Bexar Metropolitan Water District Well (a widemouth blindcat locality) and 7.5 km (4.7 mi) to the southwest of the Artesia Pump Station Well (a toothless blindcat and widemouth blindcat locality). It is conceivable that blindcat habitat extended to that location, although the well has never been sampled for either fish species.

Flow at San Antonio Public Service Company Well 4 has been recorded at 1.05 m  3 per second (m  3 /sec) (37 cubic feet per second (ft  3 /sec)) (Livingston 1942, pp. 3-4). Flow at that rate over 12 months would result in discharge of 33,134,800 m  3 (26,863 ac-ft) of groundwater and potentially 507 toothless and/or 266 widemouth blindcats per year. If that well operated at that capacity over its 81-year operational lifespan, 41,055 toothless blindcats and 20,723 widemouth blindcats could have potentially been expelled from the well. Well 4 is still in operation based on Texas Water Development Board records.

In 1891, the first of a series of 20 to 30 cm (8 to 12 in) diameter wells were drilled in what would become the Market Street Pump Station (Ewing 2000, pp. 13, 15, 22; Eckhardt 2016, unpaginated). The 1891 well was 271 m (890 ft) deep and produced 4,144,499 m  3 (3,360 ac-ft) of groundwater per year (Ewing 2000, pp. 13, 22). Three additional wells were drilled in 1894, one well with an annual pumped capacity of 7,598,248 m  3 (6,160 ac-ft) and two wells at 4,144,499 m  3 (3,360 ac-ft) (Ewing 2000, p. 22). The total annual pumping capacity of these four wells would have been 20,031,745 m  3 (16,240 ac-ft). If blindcats entered the capture zones of these wells, 305 toothless blindcats and 155 widemouth blindcats could have been discharged per year.

By 1924, the Market Street pump station had 12 wells with a combined capacity of pumping 59,404,485 m  3 (48,160 ac-ft) per year (Ewing 2000, p. 15). The pump station's 1924 capacity of 59,404,485 m  3 (48,160 ac-ft) could have resulted in the discharge of 9,086 toothless blindcats and 4,587 widemouth blindcats over a 10-year period. At that same rate, from 1924 to 2022, 89,051 toothless blindcats and 44,491 widemouth blindcats would have been expelled from wells over that 98-year period. The Market Street pump station is still in operation today with several large capacity wells (Eckhardt 2016, unpaginated).

While these scenarios of blindcat losses due to wells are hypothetical estimates, they provide insight into the scale of well mortality for the toothless blindcat and widemouth blindcat. We know that both species are ejected by groundwater wells and die. It is evident that wells extracting water from the artesian zone remove blindcats and that large capacity wells have the potential to expel thousands of individuals over a well's operational lifespan. However, the location and depth of wells influence their ability to affect blindcat populations; only certain wells will intercept areas occupied by toothless and/or widemouth blindcats. That said, very productive groundwater wells likely intercept larger water-filled voids that would serve as blindcat habitat (Maclay 1995, p. 43).

The most significant stressor to populations of the toothless and widemouth blindcats is mortality due to groundwater pumping. Individuals of both species are forced up artesian and pumped wells where they are physically damaged and killed. Wells with long operational lifespans could have resulted in the deaths of thousands to tens of thousands of individuals. All life stages of the blindcats are expected to experience mortality due to the action of groundwater wells. The greatest loss of blindcats potentially occurred from the early 1940s into the early 1960s, when the largest number of groundwater wells were drilled in the potential area of occurrence within the Edwards Aquifer.

The widemouth blindcat has not been observed from any well since 1984. Due to groundwater pumping, the species may have declined to undetectable numbers (Ferretti et al. 2008, pp. 960-962) or become functionally extinct ( i.e., permanent reproductive failure prior to true extinction; Ricciardi et al. 1998, p. 617; Delord 2007, p. 659; Bull et al. 2009, p. 419; Roberts et al. 2017, p. 1193). Toothless blindcats, however, have been taken from the Aldridge 209 Well most years between 2008 and 2013 and from 2020 to 2022. The species appears to be persisting in this area but seemingly in low numbers. Between 2008 and 2013, material potentially representing 13 individual toothless blindcats was taken from the Aldridge 209 Well (Zara Environmental 2020, pp. 11, 18-20). Between 2021 and 2022, material potentially comprising four toothless blindcats was taken from the same well (Diaz 2021, p. 29). Whether abundance of the species at that site has declined over the well's 67-year operational lifespan is unknown. We assume that numbers of the toothless blindcats at the Aldridge 209 Well are likely lower than prior to 1955, when the well was first drilled. The next most recent records for the toothless blindcat are at Tschirhart Well in 2010. The status of both species at other wells is unknown, as they remain unsampled since the late 1970s to 1980s due to lack of sampling access.

While pumping has resulted in the directly mortality of both species, groundwater quantity to support habitat for the fishes has not experienced change from historical conditions. In contrast to surface aquifer levels, which occasionally decline, the exceedingly deep aquifer water levels where the fishes reside show no evidence of long-term decline, even at times of prolonged drought and unregulated pumping (Maclay 1995, pp. 48, 52; Lindgren et al. 2004, 40-41, 45). In addition, management of groundwater withdrawals from the San Antonio segment has been in place since the late 1990s (Service 2022, pp. 62-66) and pumped volumes have decreased since 2008 (Service 2022, pp. 64-65). Flow protection measures are in place that principally protect the Comal Spring and San Marcos Spring systems, but those measures also benefit water levels deeper in the aquifer. Groundwater contamination does not appear to have been a widespread or prevalent stressor for either species. In terms of drinking water standards, contaminants in the San Antonio segment occur in relatively low concentrations. The presence of contaminants also decreases with depth in the aquifer where older water is less affected by contamination. Complete analyses of the impact of the threats of groundwater quantity, climate change, and contamination on the toothless blindcat and the widemouth blindcat can be found in the SSA report (Service 2022, pp. 81-85).

Based on available information, we expect that the resiliency of both species' populations has been reduced from pre-1950 levels, the period of new groundwater well establishment in the analysis unit. Although populations of the toothless blindcat and widemouth blindcat have been postulated as large (Longley and Karnei 1978a, p. 36; 1978b, p. 39; Trajano 2001, pp. 145-146), the extensive estimated mortality from groundwater wells has likely taken a toll on those potential numbers. Additionally, because the toothless blindcat and the widemouth blindcat exist as single sympatric subterranean populations, both species effectively lack redundancy and have limited representation. This places the toothless and widemouth blindcats at greater risk from stochastic events and anthropogenic stressors, such as groundwater well mortality. Well mortality has likely reduced the abundance of both blindcats. Furthermore, the life history traits of both species suggest that sustained loss of individuals, especially sexually mature fish, can result in reduced population sizes and changes in demographic structure in the form of lower numbers of sexually mature fish, reduced reproductive output, and diminished recruitment of younger individuals.

As part of the SSA, we evaluated the future conditions of the toothless blindcat and widemouth blindcat by examining the most plausible future projections for human population growth, groundwater demands, and climate change. Our projections show ongoing well mortality through groundwater pumping, but no significant change to toothless blindcat and widemouth blindcat habitat due to groundwater quality and quantity (Service 2022, pp. 81-86). Because we determined that the current conditions of both species are consistent with an endangered species (see Determination of the Toothless Blindcat's and Widemouth Blindcat'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. 86-95) for the full analysis of future scenarios.

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.

We find that mortality resulting from the pumping of groundwater wells (Factor E) is the primary threat to both species. The species occupy a limited range, and populations of both species have likely been severely reduced since the introduction of groundwater wells in the late 19th to early 20th century. There are currently 82 active groundwater wells in the potential area of occurrence (Service 2022, p. 72). No toothless blindcat or widemouth blindcat expelled from groundwater wells has survived for any extended period, and many specimens are ejected mangled and dead due to battering as they are forced to the surface. Discharge and sampling data indicate an individual well operating over several decades (that is, since the 1950s), and discharging relatively moderate volumes of groundwater could conservatively result in losses of over a thousand toothless blindcats and several hundred widemouth blindcats.

These losses of individual fish to groundwater wells over time suggest that both species were, and will continue to be, impacted from actively pumped wells. Although population sizes for the toothless blindcat and widemouth blindcat may have historically been large, we project that thousands to tens of thousands of fish have been lost to groundwater wells since the early 1900s, and that the resiliency of both species' populations has been reduced. Both the toothless blindcat and the widemouth blindcat are long-lived and pelagic, and thus more likely to encounter a well over their lifespan and be captured by well uptake. These species have life-history traits that limit reproductive capacity and recruitment, as documented in other cavefish species. These same traits make the blindcats more susceptible to long-lasting population impacts from well mortality losses.

The widemouth blindcat has not been observed at a well since the mid-1980s, and toothless blindcat has only been expelled from a single groundwater well multiple times between 2008 and 2013 and from 2020 to 2022. The toothless blindcat thus appears to be persisting at this location in low numbers. Well mortality has likely reduced the abundances of both blindcats along with effects on demographic structure in the form of lower numbers of sexually mature fish, reduced reproductive output, and diminished recruitment of younger individuals. Given these impacts and the limited range of both species, it is unlikely that even relatively robust populations of the toothless blindcat and widemouth blindcat could indefinitely sustain continued losses from well mortality. Both species have limited redundancy and representation, making the loss of resiliency from well mortality particularly detrimental.

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we conclude that both species have experienced and continue to experience the deleterious impacts of well mortality to such an extent that both species are currently in danger of extinction, rather than at some point in the foreseeable future. Therefore, both species meet the Act's definition of an endangered species rather than that of a threatened species. Thus, after assessing the best available information, we determine that both the toothless blindcat and the widemouth blindcat are in danger of extinction throughout all of their ranges.

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 toothless blindcat and widemouth blindcat are in danger of extinction throughout all of their ranges and accordingly did not undertake an analysis of any significant portion of their ranges. Because the toothless blindcat and widemouth blindcat warrant listing as endangered throughout all of their ranges, our determination does not conflict with the decision in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020), 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 both the toothless blindcat and widemouth blindcat meet the Act's definition of an endangered species. Therefore, we propose to list both the toothless blindcat and the widemouth blindcat as 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 Austin 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 ranges 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 these species are listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Texas would be eligible for Federal funds to implement management actions that promote the protection or recovery of the toothless blindcat and widemouth blindcat. 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 toothless blindcat and widemouth blindcat are only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for these species. Additionally, we invite you to submit any new information on these species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7 of the Act is titled Interagency Cooperation and mandates all Federal action agencies to use their existing authorities to further the conservation purposes of the Act and to ensure that their actions are not likely to jeopardize the continued existence of listed species or adversely modify critical habitat. Regulations implementing section 7 are codified at 50 CFR part 402.

Section 7(a)(2) states that each Federal action agency shall, in consultation with the Secretary, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Each Federal agency shall review its action at the earliest possible time to determine whether it may affect listed species or critical habitat. If a determination is made that the action may affect listed species or critical habitat, formal consultation is required (see 50 CFR 402.14(a)), unless the Service concurs in writing that the action is not likely to adversely affect listed species or critical habitat. At the end of a formal consultation, the Service issues a biological opinion, containing its determination of whether the Federal action is likely to result in jeopardy or adverse modification.

In contrast, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of critical habitat proposed to be designated for such species. Although the conference procedures are required only when an action is likely to result in jeopardy or adverse modification, action agencies may voluntarily confer with the Service on actions that may affect species proposed for listing or critical habitat proposed to be designated. In the event that the subject species is listed or the relevant critical habitat is designated, a conference opinion may be adopted as a biological opinion and serve as compliance with section 7(a)(2) of the Act.

Examples of discretionary actions for the toothless blindcat and the widemouth blindcat that may be subject to conference and consultation procedures under section 7 are land management or other landscape-altering activities on Federal lands administered by the U.S. Department of Agriculture 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. Federal agencies should coordinate with the local Service field office (see FOR FURTHER INFORMATION CONTACT , above) with any specific questions on section 7 consultation and conference requirements.

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 commit, to attempt to commit, to solicit another to commit, or to cause to be committed any of the following: (1) Import endangered wildlife into, or export from, the United States; (2) take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct) endangered wildlife within the United States or on the high seas; (3) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such wildlife that has been taken illegally; (4) deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or (5) sell or offer for sale in interstate or foreign commerce. Certain exceptions to these prohibitions apply to employees or agents 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 for endangered wildlife are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for scientific purposes, for enhancing the propagation or survival of the species, or for take incidental to 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 the policy of the Services, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify, to the extent known at the time a species is listed, specific activities that will not be considered likely to result in violation of section 9 of the Act. To the extent possible, activities that will be considered likely to result in violation will also be identified in as specific a manner as possible. 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 or would not be likely to result in a violation of section 9 of the Act beyond what is already clear from the descriptions of prohibitions or already excepted through our regulations at 50 CFR 17.21 ( e.g., any person may take endangered wildlife in defense of his own life or the lives of others). As discussed above, certain activities that are prohibited under section 9 may be permitted under section 10 of the Act. Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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 ( i.e., 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 each Federal action agency 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 designated 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. Rather, designation requires that, where a landowner requests Federal agency funding or authorization for an action that may affect an area designated as critical habitat, the Federal agency consult with the Service under section 7(a)(2) of the Act. If the action may affect the listed species itself (such as for occupied critical habitat), the Federal agency would have already been required to consult with the Service even absent the designation because of the requirement to ensure that the action is not likely to jeopardize the continued existence of the species. Even if the Service were to conclude after consultation that the proposed activity is likely to 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 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, or other species conservation planning efforts if new information available at the time of those planning efforts calls for a different outcome.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:

(i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;

(ii) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;

(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;

(iv) No areas meet the definition of critical habitat; or

(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.

As discussed above, there are no significant habitat-based threats that currently, or would in the future, limit habitat for the toothless blindcat and the widemouth blindcat. The present or threatened destruction, modification, or curtailment of the blindcats' habitat or range is not a threat to the species. In light of the particular circumstances of these two species, we have determined that designation of critical habitat is not prudent. We reach this conclusion largely because of the nature of the main threat for these species: direct mortality resulting from groundwater well pumping (Factor E). The wells constructed in these blindcats' habitat are not affecting the species through habitat destruction or modification; instead, it is the capture, entrainment, and death of individuals due to the pumping of groundwater wells that is a threat to the species. Designation of critical habitat would not provide any additional protective measures or benefits that address this specific threat. In addition, the designation of critical habitat would not provide otherwise unavailable information to guide conservation efforts for these species. Therefore, a designation of critical habitat would not be advantageous for these species.

Since we have determined that the present or threatened destruction, modification, or curtailment of both species' habitat or range is not a threat to the toothless blindcat and the widemouth blindcat, in accordance with 50 CFR 424.12(a)(1), we determine that designation of critical habitat is not prudent for the toothless blindcat and the widemouth blindcat.

We are required by E.O.s 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes on a government-to-government basis. In accordance with Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. No Tribal lands were identified within the range of the toothless blindcat or widemouth blindcat.

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

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

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

Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et seq. ), 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 Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell meet the Act's definition of an endangered species; therefore, we are proposing to list them as such. Listing a species as an endangered or threatened species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. This document proposes to list the Tennessee clubshell ( Pleurobema oviforme ), Tennessee pigtoe ( Pleuronaia barnesiana ), and Cumberland moccasinshell ( Medionidus conradicus ) as endangered species.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the primary threats to all three species are large impoundments, urban development, energy development, and agriculture, which have altered natural flow regimes and/or diminished water and substrate quality (Factor A).

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, ranges, 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 ranges, including distribution patterns and the locations of any additional populations of these species;

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

(e) Past and ongoing conservation measures for these species, their habitats, or both.

(2) Threats and conservation actions affecting the species, including:

(a) Factors that may be affecting 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;

(b) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species; and

(c) Existing regulations or conservation actions that may be addressing threats to these species.

(3) Additional information concerning the historical and current status of these species, including whether any of the species may warrant listing as a threatened species or may not warrant listing.

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.

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 new information we receive (and any comments on that new information), we may conclude that any of these species are threatened instead of endangered, or we may conclude that any of these species do not warrant listing as either an endangered species or a threatened 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 to list 404 aquatic, riparian, and wetland species, including the Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell, as endangered or threatened species under the Act. In response to the petition, we published a partial 90-day finding on September 27, 2011 (76 FR 59836), in which we announced our finding that the petition contained substantial information indicating that listing may be warranted for numerous species, including the Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell. This document serves as both our 12-month warranted petition finding and our proposed rule to list these species.

A species status assessment (SSA) team prepared an SSA report for the Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. After the SSA report was completed, the methodology used to evaluate the status of the three species was published in a peer-reviewed journal (Fitzgerald et al. 2021, entire).

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 SSA report. The Service sent the SSA report to three independent peer reviewers and received one response. Results of this structured peer review process can be found at https://www.regulations.gov and the Asheville Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ). In preparing this proposed rule, we incorporated the results of this review, as appropriate, into the SSA report, which is the foundation for this proposed rule.

As discussed in Peer Review above, we received comments from one peer reviewer on the draft SSA report. We reviewed all comments we received from the peer reviewer for substantive issues and new information regarding the information contained in the SSA report. The peer reviewer agreed with our assessment of the status of the three mussel species. All substantive comments from the peer reviewer concerned the omission of coal mining as an important threat to the three species and included a recommendation to add references from peer-reviewed literature that illustrate the impact coal mining has had on freshwater mussels in the species' ranges. To address the reviewer's comment, in this proposed rule, we clarify that our modeling approach focuses on rangewide drivers of population conditions and does not capture some site-specific threats with high consequences, such as coal mining. Coal mining drainage affects, very roughly, less than half the historical range of the three species. Because a little more than half of that range lacks coal mining impacts, mining does not explain rangewide patterns of population condition and was not included in the final model. Our SSA report explains that the negative effects of mining on mussels in this region have been well-documented, and the risk posed by this threat must be considered in addition to the model estimates presented, particularly for watersheds in the upper Tennessee and Cumberland River basins. As recommended by the peer reviewer, in this proposed rule, we include references from peer-reviewed literature that explain how coal mining has affected mussels in the range of the three mussel species.

Freshwater mussels, including the three species that are the subjects of this proposed rule, have a complex reproduction process involving parasitic larvae, called glochidia, that are wholly dependent on host fish. Mussels release sperm into the water column, which is taken in by the female, wherein fertilization and development of glochidia occurs in a restricted portion of the gills, called the brood pouch or marsupium. When mature, the glochidia are released to the water column to attach on the gills, head, or fins of fishes. Glochidia die if they fail to attach to a host fish, attach to an incompatible fish species, or attach to the wrong location on a host fish (Neves 1991, p. 254; Bogan 1993, p. 599). Once attached to the host, glochidia draw nutrients from the fish's tissue as they develop (Arey 1932, pp. 214-215). Time to development, from attachment of glochidia to maturation, ranges from just over 1 week to 6 weeks or more (Parmalee and Bogan 1998, p. 8).

Depending on the species, mussels are either short-term or long-term brooders. In short-term brooders, fertilization occurs in the spring or summer and glochidia are released shortly after they are fully developed. In long-term brooders, fertilization occurs in late summer or fall, and developed glochidia are held over winter and released in the following spring or summer (Haag 2012, pp. 39-40). Mature glochidia drop off their hosts and, if they settle in suitable habitat on the stream bottom, continue the remainder of their existence as free-living mussels. Newly released glochidia are juveniles that are reproductively immature but otherwise resemble adults, with both halves (valves) of the shell developed and poised for growth.

Freshwater mussels are relatively sedentary and, under their own power, capable of moving only short horizontal distances, typically up to a few yards or less in a year (Haag 2012, pp. 34-35). Given mussels' limited mobility, host fish are their primary mode of dispersal, and the hosts are essential for maintaining population connectivity. Host specificity varies, with some mussel species being compatible with a few fish species while others can transform from glochidia to juveniles on several fish species.

A thorough review of the taxonomy, life history, and ecology of the Tennessee clubshell is presented in the SSA report (Service 2020, pp. 3-7).

Attaining a maximum length of approximately 90 millimeters (mm) (4 inches (in)), the Tennessee clubshell is oval to triangular shaped and has a tawny to brown shell, usually with wide, broken green rays (Williams et al. 2008, p. 542). It occurs in the Tennessee and Cumberland River drainages in Alabama, Georgia, Kentucky, North Carolina, Tennessee, and Virginia (see figure 1, below). Favoring moderately swift currents, it is found in riffles and shoals of small streams to large rivers, in a mixture of sand, gravel, and cobble substrates.

The Tennessee clubshell has a lifespan of 30 years on average but may live to 50 years. Age at maturity ranges from 4 to 6 years. In total, 10 host fish species in the minnow and darter families have been documented by observations of either attachment or metamorphosis of glochidia (Service 2020, pp. 5-6). As a short-term brooder, the Tennessee clubshell spawns in the spring and releases glochidia mid-July through early August.

A thorough review of the taxonomy, life history, and ecology of the Tennessee pigtoe is presented in the SSA report (Service 2020, pp. 3-7).

Attaining a maximum length of 95 mm (3.7 in), the Tennessee pigtoe's shape varies from oval to subtriangular or subquadrate, and its shell is yellowish or brown, sometimes with dark green rays (Williams et al. 2008, p. 585). It occurs in the Tennessee River drainage, in Alabama, Georgia, North Carolina, Tennessee, and Virginia (see figure 2, below). It is presumed extirpated from Mississippi, where it was known to occur only in Bear Creek, in Tishomingo County. Unlike the Tennessee clubshell and Cumberland moccasinshell, the Tennessee pigtoe does not occur in the Cumberland River drainage. It is found in moderate current, and rarely in pools and slackwaters, in small streams to large rivers, in a mixture of sand, gravel, and cobble substrates.

The Tennessee pigtoe has a lifespan of 30 years on average but may live to 50 years. Age at maturity ranges from 4 to 6 years. As a short-term brooder, it spawns in the spring and releases glochidia mid-July through early August. The host fishes are unknown for this species but likely are the same as or similar to those of the Tennessee clubshell.

A thorough review of the taxonomy, life history, and ecology of the Cumberland moccasinshell is presented in the SSA report (Service 2020, pp. 3-7).

Attaining a maximum length of 60 mm (2.4 in), the Cumberland moccasinshell is elliptical shaped, slightly bowing or arching with age. Its shell is yellowish to tawny or brown and usually covered in green rays, and the posterior of the shell is usually marked with small ridges (Williams et al. 2008, p. 434). The Cumberland moccasinshell occurs in the Tennessee and Cumberland River drainages in Alabama, Georgia, Kentucky, Tennessee, and Virginia (see figure 3, below). It is presumed extirpated in North Carolina. Favoring strong currents, it is found in riffles and shoals of streams ranging from headwaters to medium-sized rivers amongst gravel, cobble, boulder, and occasionally sand and gravel substrates. It is sometimes found under large flat rocks or cracks in bedrock.

The Cumberland moccasinshell has a lifespan of approximately 10 years on average, with a maximum reported age of 24 years, based on shells from the Clinch River in Virginia and Tennessee (Scott 1994, pp. 16, 71). Age at maturity ranges from 1 to 3 years (Zale and Neves 1982, p. 19; T. Lane 2023, pers. comm.). Fish hosts include at least four (possibly six) species in the darter genus, Etheostoma (Service 2020, pp. 5-6). As a long-term brooder, the Cumberland moccasinshell spawns mid-July and releases glochidia sporadically September through November, with peak releases occurring January through May (Zale and Neves 1982, p. 25).

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 the foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

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

To assess the viability of the Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell, 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, reduced birth rates), 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 or 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. For each of the three species, 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-2023-0112 on https://www.regulations.gov and at the Service's Environmental Conservation Online System species profile pages: https://ecos.fws.gov/ecp/species/3254; https://ecos.fws.gov/ecp/species/9887; and https://ecos.fws.gov/ecp/species/9881.

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

The Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell share similar habitat needs, preferring riffles, shoals, and high gradient streams with stable substrates composed predominantly of coarse sand, gravel, and cobble. Most often, the three species are found in habitat less than 3 feet (0.9 meter) deep, in small to medium-sized rivers. Larger, more inflated shell types of Tennessee clubshell and Tennessee pigtoe inhabited large rivers prior to impoundment (Ortmann 1918, pp. 534-538, 550-555), but representation of these shell types has been lost, as both species, in addition to the Cumberland moccasinshell, require free-flowing streams and are not viable (do not successfully reproduce) in large impoundments, such as those along the mainstem Tennessee and Cumberland rivers. Known and likely fish hosts needed by each mussel species for reproduction are noted above (see General Mussel Biology ).

For all three species, in our SSA, we used U.S. Geological Survey (USGS) 10-digit hydrologic unit codes (HUCs, or watersheds; see figures 1-3, above) as analysis units for threats, current conditions, and future conditions. These analysis units were selected because they reflect relative differences in hydrologic conditions ( e.g., separation by major impoundments), and they were at the finest spatial scale for which mussel survey data were available.

We provide information regarding present and future influences, including both positive and negative, on the three mussels' current and future viability, including large impoundments, urban development, energy development, and agriculture, which have altered natural flow regimes and/or diminished water and substrate quality (Factor A). The existing regulatory mechanisms (Factor D) have not been adequate to arrest the decline of the species. Additional threats, including nonnative competitors and pathogens (which may be responsible for enigmatic declines in some streams), likely have had negative effects on the three mussel species, as described in the SSA report and in a peer-reviewed publication on the SSA methodology (Fitzgerald et al. 2021, entire). These additional threats may negatively affect individuals of the species, but, unlike the primary threats, these additional threats do not affect the species' overall viability. Further, our analysis did not indicate that climate change is a primary threat to the three species. While the rangewide effects of climate change are likely to worsen in the future as droughts and storms are projected to become more intense, the primary threats (large impoundments, urban development, energy development, and agriculture) are the main driver of the three species' status currently and into the future.

We used a regression model to identify the threats affecting the species. The model estimated the relative effects of a set of candidate predictor variables (threats) on the mussels' current conditions (see table 1, below). The threat variables retained for the regression analysis were those that best predicted mussel persistence at the rangewide scale. The analysis revealed the primary threats influencing current conditions of the three species are erosion and sedimentation from urban development and hydrologic alteration from large reservoirs and urban development. Mean runoff, another variable that reflects the impacts of erosion and sedimentation, was identified as a primary threat only to the Cumberland moccasinshell; its influence on the other two mussel species was not statistically significant.

Several threats (candidate variables in the model) were considered as potential influences on current condition but were excluded from the regression analysis because they decreased the model's ability to detect the primary threats acting on the three mussel species rangewide (see table 1, below). However, some of the excluded threats negatively affect the three mussel species at smaller scales. In some watersheds in the upper Tennessee Basin and Cumberland Basin, energy development, which includes coal mining, natural gas, and oil extraction, has been identified as key threats to mussels that have reduced habitat (see “Energy Development—Coal, Natural Gas, and Oil,” below).

Our analysis identified large impoundments (indicated by reservoir surface area) as a rangewide threat to the three mussel species. The Tennessee Valley Authority operates 31 large dams in the Tennessee River system and one large dam (Great Falls Dam) in the Cumberland system (TVA Recreation Map website, 2023) and the U.S. Army Corps of Engineers operates 10 large dams in the Cumberland system (USACE Nashville District website, 2023). The effects of dams on aquatic habitats and freshwater mussels are well-documented (Watters 2000, p. 261), and extinction and extirpations of North American freshwater mussels can be traced to impoundment and inundation of riffle habitats in all major river basins of the central and eastern United States (Haag 2009, p. 107).

Dams disrupt population connectivity and alter water quality. After a dam has been constructed, upstream the channel becomes deeper, flow decreases dramatically, and fine sediments accumulate on the channel bottom, which eliminates shoal and riffle habitats needed by the three mussel species, as well as many others, and their host fishes. Downstream of dams, natural flow regimes are disrupted by alternating low flow releases and pulses of scouring flows (Hardison and Layzer 2001, p. 79), reduced water temperatures, reduced dissolved oxygen, and changes in fish assemblages. Mussels may survive in cold tailwaters but may not be able to reproduce, as was shown for native washboard mussels ( Megalonaias nervosa ) in the mainstem Cumberland River (Heinricher and Layzer 1999, entire). In a Cumberland River tributary, Caney Fork, the extirpation of several mussel species, including Cumberland moccasinshell, was attributed mainly to cold tailwater temperatures from Center Hill Dam (completed in 1948) and alteration of channel morphology from peaking flows, and no live mussels were found within 7.5 mi (12 km) of the dam outfall (Layzer et al. 1993, pp. 69-70).

For all three mussel species, development and urbanization contribute to habitat degradation and loss. Freshwater mussel populations may experience reduced abundance, species richness, reproduction, growth, and survival stemming from the impacts of urbanization on water and habitat quality (Diamond and Serveiss 2001, p. 4716; Gangloff et al. 2009, p. 198; Cao et al. 2013, pp. 1212-1214; Gillis et al. 2017, pp. 674-679). The threats analysis in our SSA found the estimated probability of extirpation for all three species approaches 100 percent when developed land area is between 9 and 15 percent of the total land area in a watershed (Service 2020, p. 61). The term “development” refers to urbanization of the landscape, including (but not limited to) land conversion for residential, commercial, and industrial uses and the accompanying infrastructure. Urbanization effects may include alterations to water quality, water quantity, and instream and streamside habitat (Ren et al. 2003, p. 649; Wilson 2015, p. 424). The effects on habitat also include variability in streamflow, typically increasing the extent and volume of water entering a stream after a storm and decreasing the time it takes for the water to travel over the land before entering the stream (Giddings et al. 2009, p. 1).

In urbanized environments, storm drains deliver large volumes of water to streams much faster than would naturally occur, often resulting in flooding and bank erosion that reshape the channel and cause substrate instability. Increased, high-velocity discharges can cause species living in streams (including mussels) to become stressed, displaced, or killed by fast-moving water and the debris and sediment carried in it. Once floodwaters recede, displaced individuals may be left stranded out of the water, and fine sediments transported to the stream settle on coarser substrates, which may damage or destroy areas of mussel habitat. During storm events, contaminants in urbanized environments ( e.g., gasoline, oil drips, fertilizers) accumulated on impervious surfaces may be washed directly into streams.

Extraction of coal, natural gas, and (to a lesser extent) oil is common in the Cumberland and Upper Tennessee River basins and has been associated with mussel declines in several watersheds (Layzer and Anderson 1992, entire; Warren and Haag 2005, entire; Johnson et al. 2014, p. 890; TDEC 2014, p. 62; Zipper et al. 2016, pp. 612-613; Ahlstedt et al. 2016, p. 13). Examples of energy development impacts in the range of the three mussels include high levels of copper, manganese, and zinc, metals that can be toxic to freshwater mussels, found in sediment samples from both the Clinch and Powell Rivers. Both rivers receive runoff from active, reclaimed, and abandoned coal mine sites. In Cumberland Basin streams, including Buck Creek, Horse Lick Creek, Little South Fork, and Rockcastle River, there was a clear correlation between surface mines, increased metal concentrations downstream, and the extirpation of some mussel species (Layzer and Anderson 1992, pp. 91-96). In the upper Powell River, Virginia, coal mining has almost eliminated the mussel fauna; sediment pore water from the riverbed contains levels of contaminants potentially toxic to mussels, particularly selenium and copper (Timpano et al. 2023, p. 13).

Natural gas and oil extraction is a threat to freshwater mussels in the Upper Tennessee Basin and Cumberland Basin. In addition to the general impacts of erosion and sedimentation from forest clearing for access roads and installing drill pads, spills from (brine) disposal ponds at gas wells or end-of-pipe discharges from brine treatment facilities can reduce freshwater mussel abundance and diversity, as well as increase mortality. These effects have been observed in the Allegheny River (Patnode et al. 2015, p. 55), a watershed outside the range of the three mussel species, but within the Ohio Basin, which contains the Tennessee River and Cumberland River.

Agricultural activities are common throughout the range of the three mussel species and have impacted watersheds in the species' historical and current ranges. The advent of intensive row crop agriculture is a potential factor in freshwater mussel decline and species extirpation in the eastern United States (Peacock et al. 2005, p. 550). Nutrient enrichment from fertilized crops and livestock is a threat commonly associated with negative effects on aquatic biota and can increase ammonia concentrations, to which freshwater mussels are particularly sensitive. In addition, agricultural pesticides, including herbicides, fungicides, insecticides, and their surfactants and adjuvants, are highly toxic to juvenile and adult freshwater mussels (Bringolf et al. 2007, p. 2,092). Concentrations of these contaminants from fields or pastures may be at levels that can affect an entire population, especially given the highly fragmented distributions of the three mussel species.

Agricultural land use has been associated with decreased freshwater mussel diversity, growth, and survival in North American streams. A temporal analysis of freshwater mussel populations in Iowa streams showed declines in mussel species richness, and local extirpations corresponded with agricultural intensity and forest clearing of the riparian zone (Poole and Downing 2004, pp. 121-124). In those Iowa streams, the segments with the highest substrate diversity exhibited the lowest declines in species richness, indicating homogenization of substrates from sedimentation is a freshwater mussel stressor. Further, species richness increased or was unchanged where agriculture was less than 25 percent of the land use. Another study, in Minnesota streams, revealed decreases in mussel abundance and richness corresponding with increases in agricultural land use (Hornbach et al. 2019, p. 1,833). In Kentucky, streams in proximity to row crop agriculture were associated with higher values of contaminants (pesticides and fertilizers), and growth of caged mussels in those streams was low in comparison with most other streams, where row crops were a minor land use (Haag et al. 2019, pp. 761-763). One of the streams in the study with high row crop land use was the Red River, in the historical range of the Cumberland moccasinshell and with one current low-condition population of the Tennessee clubshell. The abnormally low growth rates observed in the streams in proximity to high row crop land use usually presage early mortality observed in mussel hatchery settings (Haag et al. 2019, p. 765).

Agencies such as the U.S. Department of Agriculture's Natural Resources Conservation Service, along with State soil and water conservation districts, provide technical and financial assistance to farmers and private landowners. Additionally, county resource development councils and university agricultural extension services disseminate information on the importance of minimizing land use impacts, specifically the effects of agricultural practices, on aquatic resources. These programs help identify opportunities for conservation through projects such as exclusion fencing and alternate water supply sources, which help decrease nutrient inputs and keep livestock off stream banks and shorelines, thus reducing erosion. However, the overall effectiveness of these programs over a large scale is unknown given the three mussel species' wide distribution and varying agricultural intensities.

Effects of the agricultural activities within the ranges of the three mussel species, including diminishment of water quality and habitat deterioration, are not often detected until after the sedimentation and/or pesticide and herbicide inputs occur. In summary, many effects of agricultural practices are pervasive across the ranges of the three mussel species and are a factor in their historical decline and localized extirpations.

Three of the land uses identified as threats to the three mussel species (urban development, energy development, and agriculture) contribute contaminants to stream habitats, which can degrade water and substrate quality and adversely impact individuals and populations. Although chemical spills and other point sources of contaminants may directly result in mussel mortality, widespread decreases in density and diversity may result in part from the subtle, pervasive effects of chronic, low-level contamination (Naimo 1995, p. 354).

The effects of contaminants such as metals, chlorine, and ammonia on juvenile mussels are profound (Augspurger et al. 2003, p. 2,571; Bartsch et al. 2003, p. 2,566). Among 69 aquatic organisms, the EPA reported freshwater mussels (from tests on juveniles and glochidia) were the taxonomic group most sensitive to ammonia (U.S. EPA 2013, pp. 24-27), which is a common contaminant in sewage plant discharges and agricultural runoff. Juvenile mussels may readily ingest contaminants adsorbed to sediment particles (Newton and Cope 2007, p. 276), and, unlike adults, they feed in sediment pore water rather than on surface water (Yeager et al. 1994, p. 221). Unionized ammonia in pore water was clearly associated with recruitment failure in populations of eastern elliptio ( Elliptio complanata ) mussels in the wild and was at concentrations far below those found to be toxic in laboratory experiments (Strayer and Malcom 2012, pp. 1,787-1,788).

Mussel glochidia are sensitive to some toxicants (Goudreau et al. 1993, p. 221; Jacobson et al. 1997, p. 2,386; Valenti et al. 2005, p. 1,243). Even at low levels, certain heavy metals may inhibit glochidial attachment to fish hosts. Contaminants have been shown to affect mussel glochidia on the Clinch River (Goudreau et al. 1993, p. 221; Jacobson et al. 1997, p. 2,386; Valenti et al. 2005, p. 1,243), which harbors some of the best condition populations of the three species, particularly the Cumberland moccasinshell.

Cadmium, chromium, copper, mercury, and zinc can negatively affect biological processes of all mussel life stages (Havlik and Marking 1987, pp. 4-9; Naimo 1995, p. 355; Jacobson et al. 1997, p. 2,389; Valenti et al. 2005, p. 1,243). Chronic mercury contamination from a chemical plant on the North Fork Holston River destroyed a diverse mussel fauna downstream of Saltville, Virginia (Brown et al. 2005, p. 1,459). Copper and zinc contamination originating from wastewater discharges at a coal-fired electric power plant is one of the sources of mussel declines in a reach of the Clinch River (Zipper et al. 2014, p. 9). Despite localized improvements since these rivers initially were contaminated, metals have remained in sediments, affecting recruitment and densities of the mussel fauna for decades thereafter (Price et al. 2014, p. 12; Zipper et al. 2014, p. 9).

In summary, the primary threats have curtailed the habitat and range of the Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell, via flow alterations caused by large impoundments and diminishment of water and substrate quality caused by various land development activities. These threats, which result in both contamination and the physical disruption of surface waters and substrates, are the source of negative impacts to freshwater mussel fauna, including the Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell.

The current resiliency of the Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell was analyzed using demographic and spatial distribution criteria (see table 2, below). Data for the criteria are from quantitative and qualitative mussel surveys reported in peer-reviewed literature, agency reports, and museum databases (Service 2020, p. 8). Resiliency was classified as low, medium, or high in the 10-digit HUC watersheds in each mussel species' historical range. Demographic criteria consisted of categories of abundance or density, and evidence of recent recruitment (inferred from the presence of individuals less than or equal to 30 mm in shell length). Distribution criteria were based on stream distance occupied within a watershed.

Mussel records were considered current if they included detection of live individuals or fresh dead shells (with soft tissue attached) since 1988. Watersheds containing only records before 1988 were considered extirpated if recent surveys had not encountered live individuals or no suitable habitat was available ( e.g., large impoundments), and unknown if no recent surveys (since 1988) were conducted. This approach represents an underestimate of decline, as only watersheds with confirmed records were considered historically occupied. Because early surveys did not always record exact localities and many watersheds faced hydrologic alterations prior to comprehensive sampling, actual historical ranges (still confined to the Cumberland and/or Tennessee Basin) were likely greater than those represented in figure 2 of the SSA report (Service 2020, p. 13). In addition, sampling has not occurred in a standardized manner, and many watersheds with unknown current conditions may reflect experts' opinions that these regions are unlikely to support viable populations ( i.e., sample selection bias). This suggests that upper values of estimated range reductions (74 percent, 76 percent, and 62 percent for the Cumberland moccasinshell, Tennessee clubshell, and Tennessee pigtoe, respectively) may better represent current conditions of these species (see table 3, below). Early surveys of freshwater mussels often recorded qualitative descriptions of abundance ( e.g., rare, common, widespread) that make direct comparison of current abundance estimates impossible; however, it is widely accepted in the literature that dramatic reductions from historical abundance have occurred throughout the ranges of these species.

In the absence of sufficient genetic data to confirm spatial population structure, we treated each watershed as a population for our analyses of species conditions. Watersheds were nested within two major units of representation, the Cumberland River basin and the Tennessee River basin. For each of the three species, redundancy was characterized by the number of populations, and, in our analysis, range loss incorporates redundancy as the portion of watersheds where the species is extirpated (see table 3, below). Although populations in low condition contribute to redundancy values, they have minimal influence on population resiliency and species representation. Low-condition populations are not, or are barely, recruiting individuals to found new generations and, therefore, are functionally extirpated.

The Tennessee clubshell historically occurred throughout the Tennessee and Cumberland River basins. Currently, it occupies 35 to 64 watersheds, compared to 147 historically, reflecting a range reduction of 58 to 76 percent. Most extant populations of the species are classified as low condition (28), with only three populations classified as high condition and four populations classified as medium condition, indicating species condition is currently low (see table 3, above). Rangewide, there are three redundant populations with high resiliency, which are likely to withstand the effects of stochastic events, and five redundant populations with medium resiliency, which may withstand the effects of a stochastic event. The 28 low-condition (low resiliency) populations have little capacity to withstand the effects of a stochastic event and do not contribute to species redundancy or the species' capacity for withstanding catastrophic events. While the Tennessee clubshell persists in the Tennessee River basin, it is on the verge of extirpation from the entire Cumberland River basin, with only 5 low-condition populations (low resiliency) and 16 extirpated populations. Extirpation of the species from this basin would result in a 50 percent loss in representation, as the Tennessee clubshell would be lost from one of the two major ecological settings (representation units) in its range. Representation has been further diminished by reductions in connectivity between mainstem and tributary streams, which contribute to reduced size and genetic isolation of Tennessee clubshell populations.

The Tennessee pigtoe was once a common species throughout the Tennessee Basin. Currently, it occupies 43 to 63 watersheds, compared to 114 historically, reflecting a range reduction of 42 to 62 percent. Most extant populations of the species are classified as low condition (32), with only three populations classified as high condition and eight populations classified as medium condition, indicating species condition is currently low (see table 3, above). Rangewide, there are three redundant populations with high resiliency, which are likely to withstand the effects of stochastic events, and eight redundant populations with medium resiliency, which may withstand the effects of a stochastic event. The 32 low-condition (low resiliency) populations have little capacity to withstand the effects of a stochastic event and do not contribute to species redundancy or the species' capacity for withstanding catastrophic events. Representation of the Tennessee pigtoe has declined, as populations in the mainstem Tennessee River are extirpated and the connectivity between tributaries is disrupted by impoundments, which has diminished population interaction necessary for maintenance of genetic diversity.

The Cumberland moccasinshell historically occurred throughout the Tennessee and Cumberland River basins. Currently it occupies 34 to 63 watersheds, compared to 150 historically, reflecting a range reduction of 56 to 74 percent. Most extant populations of the species are classified as low condition (22), with nine populations classified as high condition and three populations classified as medium condition, indicating species condition is currently low (see table 3, above). With nine populations in high condition and two populations in medium condition in the Tennessee Basin, redundancy in the basin may buffer against stochastic events. However, these populations are concentrated in Upper Tennessee Basin tributaries, mainly the Clinch-Powell watershed, with seven high condition populations, and one high condition population in the Holston watershed. The Duck River watershed, in the lower Tennessee Basin, has one high-condition and two medium-condition populations. The low-condition populations in the rest of the Tennessee Basin lack resiliency and have little capacity to withstand effects of environmental stochasticity. Because there are no populations with high resiliency, and only one population with medium resiliency in the Cumberland basin ecological setting, and smaller-scale ecological settings outside the Upper Tennessee and Duck basins only contain populations with low resiliency, Cumberland moccasinshell representation, or its potential for adapting to environmental change, is diminished.

We used the model parameters estimated in the current conditions analysis ( i.e., the relative effects of each stressor) to model the probability that a watershed would be classified as extirpated, low, medium, or high based on historical land-use and climate patterns. These probabilities discussed in the “Future Conditions” section of our SSA report (Service 2020, pp. 16-20) represent the species' present (or baseline; i.e., current) risk profile with no additional climate or land-use changes. The baseline modeling, based on threats alone, measures the present extirpation risk to all populations regardless of their current condition. For example, there may be populations that have a comparatively high demographic and distributional condition, but due to significant stressors that are already acting on the population, such as large impoundments and isolation, they also have a high probability of extirpation. Additionally, because low-condition populations contain few individuals or display little evidence of recruitment), they have an inherently high risk of extirpation within several generations. Importantly, these baseline estimates are not impacted by uncertainty in future climate or land-use scenarios because they derive from currently observed patterns across the landscape. These baseline probabilities are assumed valid over the next 10 years. Therefore, we used the current or baseline probability to assess the current risk of extirpation or low condition to each of the three mussel species (see table 4, below).

The current risk of being classified as extirpated or low condition for all three species was similar. For Tennessee clubshell, the average current risk of being classified as extirpated or low condition is 0.71 and 0.23, respectively. In addition, nearly all populations of Tennessee clubshell may be at high risk of being classified as extirpated or low condition due to current land use. For Tennessee pigtoe, the average current risk of being classified as extirpated or low condition is 0.54 and 0.34, respectively. In addition, all populations of Tennessee pigtoe were more likely than not to be classified as extirpated or low condition based on current patterns of land use within watersheds. For Cumberland moccasinshell, the average current risk of being classified as extirpated or low condition is 0.72 and 0.16, respectively. The current risk of being classified as extirpated or low condition was similarly high for Cumberland moccasinshell populations in the lower Tennessee and throughout the Cumberland Basin as described for Tennessee pigtoe; however, the upper Tennessee Basin currently contains eight populations classified as high condition that may have lower risk of becoming extirpated or low condition populations compared to other regions.

Because we determined that the current condition of the Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell is consistent with an endangered species (see Determination of Status for the Three Mussel Species, below), we are not presenting the results of the future scenarios in this proposed rule. However, above, we present the baseline or current risk profile results as these were used in the determination of the three species' status. Please refer to the SSA report (Service 2020, pp. 16-21) for the full analysis of future 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 three 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 three species. To assess the current and future condition of the three species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the relevant factors that may be influencing the species, including threats and conservation efforts. For each of the three species, 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.

Existing conservation measures directly benefiting the three mussel species are limited. Five percent or less of the currently occupied area for all three species is within protected areas managed for biodiversity conservation (Service 2020, pp. 27-29). While the percent of areas receiving some level of protection is slightly greater (15 percent or less), many of these areas are subject to mining and other extractive uses detrimental to freshwater mussels. Compared to currently extant populations of the three species, the percentage of protected area is similar for extirpated populations, suggesting the levels of protection observed are not adequate to prevent local extirpations.

Reintroductions have been attempted for at least three populations of Cumberland moccasinshell using individuals translocated from the Clinch River at Kyles Ford, Tennessee, to other rivers in the State. Between 2010 and 2015, 1,100 individuals were stocked in the Emory River, and 3,539 individuals were stocked in the Nolichucky River (Phipps et al. 2018, pp. 27-41). Populations of the Cumberland moccasinshell in both rivers are currently in low condition and do not appear to be reproducing based on 2016 surveys. An additional 800 individuals were stocked in the Hiwassee River in 2012 (Phipps et al. 2018, pp. 26-27), but reintroduction efforts were not successful, and this population is currently considered extirpated. It is possible that cold-water discharges from Apalachia Dam, which is operated as a peaking hydropower facility, have reduced the reintroduction potential of mussel species in the Hiwassee River. Unnatural thermal regimes continue to affect populations of Tennessee clubshell in the Hiwassee River and freshwater mussels below other hydropower dams in the Tennessee River basin (Layzer and Scott 2006, p. 488).

States vary in level of protection provided to freshwater mussels in general. The State of Virginia has statutory protection for freshwater mussels. State wildlife management agencies in Alabama, Tennessee, North Carolina, and Kentucky have protective regulatory measures prohibiting the take or possession of freshwater mussels without a scientific collector's permit. Freshwater mussel species are only protected in Georgia if they are listed under the Act. Accordingly, they currently may be taken with a fishing license or commercial fishing license. A variety of additional “designations” or status descriptions are assigned to the three species within States of occurrence; however, these do not indicate State statutory protections, nor are they associated with habitat or restoration priorities.

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 effects of the threats under the Act's section 4(a)(1) factors, we found that the three mussel species have declined significantly in distribution and abundance. The primary broadscale threats, development (as urbanization) and large impoundments, and more localized threats, including energy development and agriculture, have reduced available habitat, curtailing the range of the three species (Factor A). All three species have experienced substantial reductions in their current distributions compared to historical ranges.

Our SSA modeled the current probability ( i.e., baseline or current risk profile) that the species' status within various watersheds would be extirpated, low, medium, or high (see table 4, above) based on historical land-use and climate patterns, which account for the rangewide primary threats as discussed above. Together, the model (baseline or current risk profile) and current population conditions analysis (which is based on observations in the wild and current threats) informed our determination as to whether each species is in danger of extinction throughout all or a significant portion of its range ( i.e., whether each species meets the definition of an endangered species under the Act). Our determinations for each species are discussed below.

The Tennessee clubshell historically occurred throughout the Tennessee and Cumberland River basins. Most extant populations of the Tennessee clubshell are in low condition (have low resiliency) and exhibit little to no reproduction. Recruitment of new generations to the low-condition populations is very unlikely, and, as such, they are functionally extirpated, with little resistance to stochastic events, and they are unlikely to recover under the chronic stresses of current and projected threats. The three high-condition populations are restricted to the upper Tennessee River basin, in the Clinch River (two watersheds) and Hiwassee River (one watershed). In the Cumberland Basin representation unit, 5 populations are in low condition, and 16 are extirpated. As discussed above, while the Tennessee clubshell persists in the Tennessee River basin, it is on the verge of extirpation from the entire Cumberland River basin, with only 5 low-condition populations and 16 extirpated populations. Extirpation of the species from this basin would result in a 50 percent loss in representation. Representation has been further diminished by reductions in connectivity between mainstem and tributary streams, which contribute to reduced size and genetic isolation of Tennessee clubshell populations.

Because species viability is bolstered by having a broad spatial distribution across ecological settings (representation) and a sufficient number of resilient populations (redundancy), the restriction of few resilient populations to one region, in comparison to the broader distribution of populations historically, indicates species viability is currently low. In addition, the average current risk of extirpation (0.71) or low condition (0.23) across all watersheds for the Tennessee clubshell is high. Given the preponderance of low condition populations that are likely functionally extirpated throughout the species' range and the extent of urban development and large impoundments throughout the range, as well as more localized threats, including energy development and agriculture, the Tennessee clubshell is in danger of extinction throughout its range. Unlike a threatened species, which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range, the Tennessee clubshell is in danger of extinction throughout its range now, owing to the low condition of most populations and their current high risk of extirpation resulting from current threats. Thus, after assessing the best available information, we determine that Tennessee clubshell 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 within the foreseeable future throughout all or a significant portion of its range. We have determined that the Tennessee clubshell 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 Tennessee clubshell warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020) ( Everson ), which vacated the provision of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (Final Policy; 79 FR 37578, July 1, 2014) providing that if the 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 Tennessee clubshell meets the Act's definition of an endangered species. Therefore, we propose to list the Tennessee clubshell as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

Once a common species in the Tennessee Basin, most extant populations of the Tennessee pigtoe are in low condition (have low resiliency) and exhibit little to no reproduction. Recruitment of new generations to the low-condition populations is very unlikely, and, as such, they are functionally extirpated, with little resistance to stochastic events, and they are unlikely to recover under the chronic stresses of current and projected threats. Two of the three high-condition populations are in the upper part of the basin, in a Clinch River subwatershed and one of the river's tributaries, Copper Creek. The other high-condition population is in the lower Tennessee system, in the Duck River basin. Eight populations are in medium condition and distributed among lower, middle, and upper Tennessee Basin watersheds.

The Tennessee pigtoe may have sufficiently resilient populations (redundancy) spread over a large enough area to withstand a catastrophic event due to the occurrence in eight watersheds by either a high-condition or medium-condition population (three high-condition and eight medium-condition). However, populations in the mainstem Tennessee River, where the phenotype with a larger, more inflated shell only occurred, are extirpated. In addition, numerous large impoundments on the mainstem Tennessee and several of its tributaries prevent gene flow between populations, which is necessary for maintaining representation. The average current risk of extirpation across all watersheds for the Tennessee pigtoe is high (0.54) based on current patterns of land use within the watersheds. Therefore, the 11 populations in high and medium condition may be at high risk of becoming extirpated or low condition in the future given current land use and population trajectories. While the reduction in range (42 to 62 percent) appears slightly smaller for the Tennessee pigtoe when compared to the Cumberland moccasinshell and the Tennessee clubshell, this may reflect the Tennessee pigtoe's endemism to the Tennessee Basin and naturally smaller distribution rather than differences in the species' response to major stressors. Given the extent of urban development and large impoundments, and more localized but widespread threats of energy development and agriculture, most populations of the Tennessee pigtoe are in low condition such that they are at high risk of extirpation. Unlike a threatened species, which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range, the Tennessee pigtoe is in danger of extinction throughout its range now, owing to the low condition of most populations and their current high risk of extirpation resulting from current threats. Thus, after assessing the best available information, we determine that the Tennessee pigtoe 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 within the foreseeable future throughout all or a significant portion of its range. We have determined that the Tennessee pigtoe 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 Tennessee pigtoe warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in Everson, which vacated the provision of the Final Policy (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 Tennessee pigtoe meets the Act's definition of an endangered species. Therefore, we propose to list the Tennessee pigtoe as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

Historically occurring throughout the Tennessee and Cumberland Basins, most extant populations of the Cumberland moccasinshell are in low condition (have low resiliency) and exhibit little to no reproduction. Recruitment of new generations to the low-condition populations is very unlikely, and, as such, they are functionally extirpated, with little resistance to stochastic events, and they are unlikely to recover under the chronic stresses of current and projected threats. Nine populations are in high condition, with seven occupying the Clinch River drainage and one occupying a watershed in the North Fork Holston River drainage, both in the Upper Tennessee Basin. One high-condition population and two medium-condition populations are in the Duck River watershed. In the Cumberland Basin representation unit, 1 population is in medium condition, 7 are in low condition, and 20 are extirpated. The average current risk of extirpation across all watersheds for the Cumberland moccasinshell is high (0.72).

Containing eight of the nine high-condition populations rangewide, the Upper Tennessee Basin is a stronghold for the species. However, in the Upper Tennessee, there is uncertainty around population condition, for which mean risk of extirpation or low-condition population ranges from 0.5 to 0.8. The stronghold status of the Upper Tennessee Basin and the presence of one high-condition and two medium-condition populations in the Lower Tennessee Basin's Duck River, and another medium-condition population in the Cumberland Basin, indicate the species has some capacity to withstand a catastrophic event, although species redundancy is greatly reduced from historical levels.

Although currently nine populations are in high condition, they are isolated by large impoundments and the hundreds of river miles between the three river systems where they occur. This isolation prohibits genetic exchange between populations, which is essential to maintaining adaptive capacity (representation); therefore, the average risk of extirpation or low condition is high (greater than 0.5) for most of the high-condition populations. Additionally, the level of current rangewide threats to the species, which have contributed to documented extirpation from 87 of 150 watersheds, is projected to remain relatively constant, suggesting population trajectories are unlikely to change. Considering watersheds of unknown condition are likely extirpated and instead are classified as “unknown” due to being excluded from surveys because of poor habitat quality, the number of extirpations is likely closer to 106 of the 150 watersheds. The current level and extent of threats has resulted in a low-condition or extirpated state for most populations of the Cumberland moccasinshell, such that these populations are at a high risk of extirpation. Unlike a threatened species, which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range, the Cumberland moccasinshell is in danger of extinction throughout its range now, owing to the low condition of most populations and their current high risk of extirpation resulting from current threats. Thus, after assessing the best available information, we determine that the Cumberland moccasinshell 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 within the foreseeable future throughout all or a significant portion of its range. We have determined that the Cumberland moccasinshell 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 Cumberland moccasinshell warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in Everson, which vacated the provision of the Final Policy (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 Cumberland moccasinshell meets the Act's definition of an endangered species. Therefore, we propose to list the Cumberland moccasinshell 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. For each of the three species, the recovery outlines, draft recovery plans, final recovery plans, and any revisions will be available on our website ( https://ecos.fws.gov/ecp/species/3254; https://ecos.fws.gov/ecp/species/9887; and https://ecos.fws.gov/ecp/species/9881 ) or from our Asheville Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ) as they are completed.

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 these species are 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, Kentucky, North Carolina, Tennessee, and Virginia would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell. 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 Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell are only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for these species. Additionally, we invite you to submit any new information on these 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)(2) states that each Federal action agency shall, in consultation with the Secretary, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Each Federal agency shall review its action at the earliest possible time to determine whether it may affect listed species or critical habitat. If a determination is made that the action may affect listed species or critical habitat, formal consultation is required (50 CFR 402.14(a)), unless the Service concurs in writing that the action is not likely to adversely affect listed species or critical habitat. At the end of a formal consultation, the Service issues a biological opinion, containing its determination of whether the Federal action is likely to result in jeopardy or adverse modification.

In contrast, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of critical habitat proposed to be designated for such species. Although the conference procedures are required only when an action is likely to result in jeopardy or adverse modification, action agencies may voluntarily confer with the Service on actions that may affect species proposed for listing or critical habitat proposed to be designated. In the event that the subject species is listed or the relevant critical habitat is designated, a conference opinion may be adopted as a biological opinion and serve as compliance with section 7(a)(2) of the Act.

Examples of discretionary actions for the Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell that may be subject to the section 7 processes are land management or other landscape-altering activities on Federal lands administered by the National Park Service, U.S. Fish and Wildlife Service, or U.S. Forest 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 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. 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 commit, to attempt to commit, to solicit another to commit or to cause to be committed any of the following: (1) import endangered wildlife into, or export from, the United States; (2) take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct) endangered wildlife within the United States or on the high seas; (3) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such wildlife that has been taken illegally; (4) deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or (5) sell or offer for sale in interstate or foreign commerce. Certain exceptions to these prohibitions apply to employees or agents 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 the policy of the Service, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify, to the extent known at the time a species is listed, specific activities that would not be considered likely to result in violation of section 9 of the Act. To the extent possible, activities that would be considered likely to result in violation will also be identified in as specific a manner as possible. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the ranges of the species proposed for listing.

As discussed above, certain activities that are prohibited under section 9 may be permitted under section 10 of the Act. In addition, to the extent currently known, the following activities would not be considered likely to result in violation of section 9 of the Act if we list the Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell:

(1) Normal agricultural and silvicultural practices, which are carried out in accordance with any existing regulations and best management practices; and

(2) Normal residential landscape activities.

This list is intended to be illustrative and not exhaustive; additional activities that would not be considered likely to result in violation of section 9 of the Act may be identified during coordination with the local field office, and in some instances ( e.g., with new information), the Service may conclude that one or more activities identified here would be considered likely to result in violation of section 9.

To the extent currently known, the following is a list of examples of activities that would be considered likely to result in violation of section 9 of the Act, in addition to what is already clear from the descriptions of the prohibitions found at 50 CFR part 17, if we list the Tennessee clubshell, Tennessee pigtoe, and Cumberland moccasinshell:

(1) Unauthorized handling or collecting of the species;

(2) Modification of the channel or water flow of any stream in which the Tennessee clubshell, Tennessee pigtoe, or Cumberland moccasinshell is known to occur;

(3) Livestock grazing that results in direct or indirect destruction of stream habitat; and

(4) Discharge of chemicals or fill material into any waters in which the Tennessee clubshell, Tennessee pigtoe, or Cumberland moccasinshell is known to occur.

This list is intended to be illustrative and not exhaustive; additional activities that would be considered likely to result in violation of section 9 of the Act may be identified during coordination with the local field office, and in some instances ( e.g., with new or site-specific information), the Service may conclude that one or more activities identified here would not be considered likely to result in violation of section 9 of the Act. Questions regarding whether specific activities would constitute violation of section 9 of the Act should be directed to the Asheville Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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.

We have found critical habitat to be prudent and determinable for all three mussel species and have drafted a proposed critical habitat rule for these species. However, the proposed critical habitat rule is proceeding on a different timeline from the proposed listing rule because we were informed on August 9, 2023, that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) had determined that our proposed critical habitat rule is significant under Executive Order 12866 and will be initiating the interagency review process for that proposed rule. Because the Service is operating under a court-enforceable deadline requiring us to submit the 12-month finding to the Federal Register by August 15, 2023, and because E.O. 12866 does not apply to listing determinations, we are proceeding with publishing this finding and proposed rule without the proposed critical habitat designation. We will publish a proposed critical habitat rule for the three mussels following interagency review of the proposed critical habitat rule.

We are required by E.O.s 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

Regulations adopted pursuant to section 4(a) of the Act are exempt from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) and do not require an environmental analysis under NEPA. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This includes listing, delisting, and reclassification rules, as well as critical habitat designations. In a line of cases starting with Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this position.

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes.

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

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

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