As part of its efforts to increase the number of SBA-guaranteed 7(a) loans made to small businesses in underserved markets, on February 18, 2011, SBA issued a notice and request for comments introducing the Community Advantage (CA) Pilot Program (76 FR 9626). That notice provided an overview of the CA Pilot Program requirements and, pursuant to the authority provided to SBA under 13 CFR 120.3 to suspend, modify, or waive certain regulations in establishing and testing pilot loan initiatives, SBA modified or waived as appropriate certain regulations which otherwise apply to 7(a) loans for the CA Pilot Program.

Subsequent notices made changes to the CA Pilot Program to improve the program experience for participants, improve their ability to deliver capital to underserved markets, and appropriately manage risk to the Agency. These notices were issued on the following dates: February 18, 2011 (76 FR 9626), September 12, 2011 (76 FR 56262), February 8, 2012 (77 FR 6619), November 9, 2012 (77 FR 67433), December 28, 2015 (80 FR 80872), September 12, 2018 (83 FR 46237), and March 2, 2020 (85 FR 12369). In the notice published September 12, 2018 (the “September 2018 Notice”), SBA extended the pilot program to September 30, 2022, and implemented a temporary moratorium on the acceptance of new Community Advantage Pilot Lender Participation Applications (CA Pilot Lender Applications) effective October 1, 2018, among other changes to the CA Pilot Program. On April 29, 2022, notice 87 FR 25398 announced SBA's intention to extend the CA Pilot Program through September 30, 2024, and to remove the temporary moratorium on the acceptance of new CA Lender Applications.

After evaluating the impact of the CA Pilot Program, on April 12, 2023, SBA published the Final Rule on Small Business Lending Company (SBLC) Moratorium Rescission and Removal of the Requirement for a Loan Authorization (SBLC Rule), 88 FR 21890. In the SBLC Rule, SBA lifted the moratorium on licensing new SBLCs and created a new type of SBLC called a Community Advantage Small Business Lending Company (CA SBLC). The SBLC Rule also provided for the grandfathering of current CA Pilot Lenders to be licensed as CA SBLCs with permanent 7(a) lending authority. This means when SBA authorizes a CA SBLC license for a CA Pilot Lender, the CA Pilot Lender will no longer be making 7(a) loans in a temporary pilot program but will instead be making regular 7(a) loans under a CA SBLC license in the 7(a) program.

On May 1, 2023, SBA published Information Notice 5000-846918, Community Advantage Small Business Lending Company Conversion, to announce that effective May 12, 2023, SBA's Office of Credit Risk Management (OCRM) initiated a program to enable current CA Pilot Lenders to become CA SBLCs. This notice also communicated to Lenders that SBA intended to sunset the CA Pilot Program on September 30, 2023.

SBA issued a notice and request for comments on May 22, 2023, 88 FR 32623, SBLC Application Process, to announce that SBA's Office of Capital Access (OCA) opened the application period for new SBLC licenses from June 1, 2023, to July 31, 2023, and shared the process by which interested entities may apply. SBA also announced in this notice that the CA Pilot Program will sunset on September 30, 2023.

As described above, SBA has previously announced on two separate occasions that the CA Pilot Program will sunset on September 30, 2023. The purpose of this notice is to provide a third and final public notice of the CA Pilot Program's termination. Although the previous notices announced the termination of the CA Pilot Program on September 30, 2023, the termination date has been extended and will now be October 31, 2023.

On April 1, 2022, SBA published a Notice in the Federal Register to, among other things, extend the term of the CA Pilot Program. In this notice, SBA stated that it will evaluate the CA Pilot Program to determine whether it should be made permanent, with evaluation criteria including, but not limited to, whether the pilot is achieving its objective(s), impact on job creation and retention, impact on business creation and/or business expansion, whether the costs (including losses) of the pilot are within an acceptable range, and portfolio performance as it relates to other 7(a) programs. SBA's program evaluation, found that the record on both job creation and retention and business creation and expansion, as discussed in this analysis, is unclear. While administrative and subsidy costs to SBA of the pilot program are unknown, indicators, such as hours spent on counseling and the riskiness of CA loans, are consistent with higher costs in both categories. Portfolio measures such as early loan problem rates, default rates, and Small Business Risk Portfolio (SBPS) Scores compare unfavorably with other 7(a) programs.

CA Pilot Program evaluation results:

A. General Community Advantage characteristics.

B. Increased access to credit for small businesses in underserved markets.

C. How have CA Pilot Lenders provided management and technical assistance to CA Pilot Program borrowers.

D. CA Pilot Program and job creation/retention and business creation/retention.

E. Are CA Pilot Program costs in an acceptable range?

F. How does CA Pilot Program portfolio performance relate to other 7(a) programs?

As Table 1 indicates, the number of CA Pilot Lenders that made loans in a fiscal year has ranged from 22 in its first full year to a high of 75 in 2018 and 2019. Unique CA Pilot Lenders in the period of the program's existence number 121. CA Pilot Lenders have made a total of 8,248 loans to businesses totaling over $1.1 billion over the life of the program. Average loan size on an annual basis has ranged from $124,665 in 2014 to $176,937 in 2023, for a mean annual average of $140,728. In percentage terms, the annual averages have ranged from 89 percent of the mean annual average in 2014 to 26 percent above that mean for the first five months of 2023.

The purpose of the CA Pilot Program is to promote lending by mission-oriented lenders, primarily non-profit financial intermediaries that operate in underserved markets. SBA assessed the performance of this objective by examining the number of new Lenders in the 7(a) market enabled by this pilot program and the amount of CA loans made to borrowers in underserved markets, which includes veteran-owned and women-owned businesses, loans to new businesses, and businesses in rural areas.

Over the period of CA Pilot Program, 121 unique CA Pilot Lenders have made CA loans. Of the CA loans, 30.98 percent were made to small businesses owned by women, 7.84 percent to veteran-owned small businesses, and 36.58 percent to small businesses owned by racial and ethnic minorities, with 11.00 percent of the CA loans going to small businesses with owners of undetermined ethnicity. Further, 12.25 percent of loans went to small businesses located in rural areas, with rural location defined in accordance with 13 CFR 120.10 as a political subdivision or unincorporated area in a non-metropolitan county (as defined by the Department of Agriculture), or, if in a metropolitan county, any such subdivision or area with a resident population under 20,000 which is designated by SBA as rural. For 7(a) loans other than CA loans, the numbers were 17.56 percent for small businesses owned by women, 18.10 percent for veteran-owned small businesses, 25.48 percent to small businesses owned by racial and ethnic minorities,15.47 percent going to small businesses with owners of undetermined ethnicity, and 18.10 percent for rural small businesses. For underserved borrowers, the picture of access has been mixed. Table 2 shows numbers of loans to women-owned small businesses, veteran-owned small businesses, and minority owned small businesses. The numbers may double-count some categories, such as businesses that qualify for two or all three categories.

A measure of increased access is the geographic distribution of the number of CA loans in Table 2. Two states—California and Texas—with a combined total of just over 20 percent of the US population, account for over 40 percent of the number of CA loans made. This imbalance could indicate an uneven distribution of the lending activity, or it could indicate that there are more borrowers in the underserved category living in these two states.

As shown in Table 3, the number of veteran-owned small business loans has not risen above 10 percent of the number of CA loans in any year of the pilot program. Women-owned businesses have received between 26 percent and 36 percent of CA loans and minority-owned businesses have received a quarter of the loans since FY 2013 and over 40 percent in the post-pandemic years.

Data gathered from the addendum to SBA Form 1919, “Borrower Information Form”, submitted by lenders to SBA, indicate that borrowers have requested management and technical assistance over the period of the pilot program on 2,968 unique CA loans, or 35.98 percent of the loans. The addendum did not separate SBA-provided training from that provided by CA Pilot Lenders. The most common assistance type was Financing/Capital followed by Business Plan assistance. Some loans involved multiple types of assistance and these two categories were both involved in over half of the loans.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A350-941 and A350-1041 airplanes. The NPRM published in the Federal Register on June 1, 2023 (88 FR 35785). The NPRM was prompted by AD 2023-0026, dated January 30, 2023, issued by EASA (EASA AD 2023-0026) (also referred to as the MCAI), which is the Technical Agent for the Member States of the European Union. The MCAI states excessively deep spot faces have been detected on the production line on rib 1 at the level of the front engine mount bolting. This could cause possible integration issues between the pylon and the front engine mount, which could lead to interference damage. This condition, if not detected and corrected, could lead to a reduced fatigue life, which could adversely affect the structural integrity of the airplane.

In the NPRM, the FAA proposed to require a one-time inspection for clash (interference) of the three front engine mounting bolt holes on both the left and right wing pylons, and, depending on findings, accomplishment of applicable corrective actions, as specified in EASA AD 2023-0026. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1056.

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

The FAA received additional comments from Delta Air Lines (Delta). The following presents the comments received on the NPRM and the FAA's response to each comment.

Delta requested an exception to require only accomplishment of Airbus Service Bulletin A350-71-P011, Revision 01, dated December 20, 2022 (ASB A350-71-P011) and Airbus Service Bulletin A350-71-P015, dated December 20, 2022 (ASB A350-71-P015), “in accordance” with steps in those bulletins. Otherwise, the “in accordance with” in Airbus Service Bulletin A350-54-P006, Rev 01, dated December 20, 2022 (ASB A350-54-P006), and Airbus Service Bulletin A350-54-P008, dated December 20, 2022 (ASB A350-54-P008) might otherwise be inferred as requiring the entire service bulletin, ASB A350-71-P011 or ASB A350-71-P015, as mandatory.

Delta explained that ASB A350-54-P006 and ASB A350-54-P008 required to be accomplished by EASA AD 2023-0026, use the “in accordance with” language to call for implementation of ASB A350-71-P011, and ASB A350-71-P015 and states that ASB A350-71-P011 and ASB A350-71-P015 do not have the paragraph specifying “Required for compliance” (RC) actions. Delta states this might infer the entire ASB A350-71-P011 or ASB A350-71-P015 must be accomplished for AD compliance.

The FAA agrees to clarify. The FAA AD refers to EASA AD 2023-0026, which requires following the mandatory (required for compliance) actions in ASB A350-54-P006 and ASB A350-54-P008. These two service bulletins include RC actions that specify that specific actions must be done in accordance with ASB A350-71-P011 and ASB A350-71-P015. Additionally, ASB A350-71-P011 and ASB A350-71-P015, specify in a note within the accomplishment instructions that “access and close-up instructions, not comprising return to service tests” can be omitted or amended to add flexibility to their maintenance operations as long as the technical intent is met. Therefore, the required actions in ASB A350-71-P011 and ASB A350-71-P015 are those that are not specified as access or close-up instructions, and are the actions specifically described by ASB A350-54-P006 and ASB A350-54-P008. As an example, ASB A350-54-P006 specifies to “Disassemble the retention bracket assy and the 3 pylon bolt assemblies during engine removal”, for which the technical intent of the ASB A350-54-P006 is to comply with the instructions in ASB A350-71-P011 that include these actions.

Delta requested clarification on whether the Test Section in ASB A350-54-P006, ASB A350-54-P008, ASB A350-71-P011, and ASB A350-71-P015 are required. The instructions do not use “in accordance with” or “refer to” language, leaving confusion.

The “Test” sections of ASB A350-54-P006 and ASB A350-54-P008 require the accomplishment of tests given in other topics which are referenced in ASB A350-71-P011 or ASB A350-71-P015. The “Test” sections of ASB A350-71-P011 and ASB A350-71-P015 state “Do the test procedure as specified in the installation of the demountable power plant (FIN 4000EM1 or 2), refer to MP A350-A-71-00-51-00ZZZ-720Z-A.”

The FAA provides the following clarification. The tests specified in ASB A350-54-P006 and ASB A350-54-P008 are required. The Required for Compliance section of the Accomplishment Instructions states that paragraph 3.E. are RC. Any mandatory language, such as accomplishment of tests, in 3.E. is therefore required. As described by the commenter, since the Test sections of ASB A350-54-P006 and ASB A350-54-P008 specify that the accomplishment of Tests given in other topics are also required, therefore the Test sections in ASB A350-71-P011 and ASB A350-71-P015 are also required. The FAA has not changed this AD as a result of this comment.

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

EASA AD 2023-0026 specifies procedures for a one-time inspection for clash of the three pylon bolt holes at rib 1 (forward engine attachment on pylon), on both the left and right wing pylons, and applicable corrective actions. Corrective actions include installing the post-mod retention bracket assembly; accomplishing a detailed inspection and a high frequency eddy current (HFEC) inspection or a penetrant inspection on rib 1 for damage (cracks, scratches, or erosion of the protective coating); measuring the spot face depth and pylon thickness and obtaining and following instructions if incorrect spot face depth or pylon thickness at the spot face are found; and repair. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 31 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2021-10-20, Amendment 39-21553 (86 FR 26373, May 14, 2021) (AD 2021-10-20). AD 2021-10-20 applied to certain ATR-GIE Avions de Transport Régional Model ATR42-500 and ATR72-212A airplanes. AD 2021-10-20 required revising the existing AFM and applicable corresponding operational procedures to update a systems limitation, limiting dispatch with certain equipment inoperative, performing an operational test of a certain contactor and an electrical test of a certain battery toggle switch, and performing corrective actions if necessary. The FAA issued AD 2021-10-20 to address reports of temporary loss of all display units and the integrated electronic standby instrument (IESI), which could result in loss of control of the airplane.

The NPRM published in the Federal Register on July 28, 2023 (88 FR 48764). The NPRM was prompted by AD 2023-0078R1, dated April 20, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0078R1) (also referred to as the MCAI). The MCAI states that new modification instructions have been published that would terminate the requirements of EASA Emergency AD 2021-0120-E, dated May 3, 2021 (which prompted FAA AD 2021-10-20). The MCAI also expands the applicability to include Model ATR72-101, -102, -201, -202, -211, and -212 airplanes. The MCAI states that temporary loss of all display units and the IESI, if not corrected, could result in loss of control of the airplane.

In the NPRM, the FAA proposed to continue to require certain actions in AD 2021-10-20, and to require modifying the battery toggle switch wiring and replacing the battery toggle switch, and to revise the applicability to include additional airplanes, as specified in EASA AD 2023-0078R1. The NPRM also proposed to prohibit the installation of affected parts. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1641.

In the “Costs of Compliance” section, the NPRM stated an incorrect estimated cost of the retained actions from AD 2021-10-20. The FAA has corrected the cost information in this final rule.

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

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

EASA AD 2023-0078R1 specifies procedures for revising the existing AFM to update a systems limitation for the transformer rectifier unit (TRU), limiting dispatch with certain equipment inoperative (which can be done by amending the operator's minimum equipment list (MEL)), performing an operational test of the contactor FIN 1PA for discrepancies ( i.e., a lack of power supply to DU 4 or a static inverter 1 INV FAULT not being displayed on 29VU), replacing the battery toggle switch FIN 7PA, modifying the wiring, and performing corrective actions. Corrective actions include replacing the contactor FIN 1PA and restoring wiring. EASA AD 2023-0078R1 also prohibits the installation of affected parts.

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

The FAA estimates that this AD affects 21 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A319-151N, -153N and -171N airplanes; Model A320-251N, -252N, -253N, -271N, -272N, and -273N airplanes; and Model A321-251N, -252N, -253N, -271N, -272N, -251NX, -252NX, -253NX, -271NX, and -272NX airplanes. The NPRM published in the Federal Register on January 30, 2023 (88 FR 5817). The NPRM was prompted by AD 2022-0185, dated September 5, 2022, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2022-0185) (also referred to as the MCAI). The MCAI states during a safety review of the airplane fuel system, it was identified that the electrical harness routing of the engine LPSOV is not adequately protected against UERF.

In the NPRM, the FAA proposed to require modification of the LPSOV electrical harness routing on either the left-hand engine or the right-hand engine, as specified in EASA AD 2022-0185. The FAA is issuing this AD to address inadequate protection of the LPSOV against UERF. The unsafe condition, if not addressed, could result in loss of engine fuel isolation capability in case of UERF, possibly resulting in an uncontrolled fire.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0026.

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

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

EASA AD 2022-0185 specifies procedures for modification of the LPSOV electrical harness routing on either the left-hand engine (for airplanes with LEAP-1A series engines installed) or the right-hand engine (for airplanes with PW1100 series engines installed).

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

The FAA estimates that this AD affects 323 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2022-18-12, Amendment 39-22163 (87 FR 56561, September 15, 2022) (AD 2022-18-12). AD 2022-18-12 applied to all Airbus SAS Model A330-841 and -941 airplanes. 2022-18-12 required installing serviceable EEC software or EEC units having the serviceable software, limiting certain parts installation configurations, and prior or concurrent modification of EEC software. The FAA issued AD 2022-18-12 to address erroneous electronic centralized airplane monitoring (ECAM) engine oil pressure warnings, which could lead to dual engine in-flight shutdown and result in reduced control of the airplane.

The NPRM published in the Federal Register on June 16, 2023 (88 FR 39379). The NPRM was prompted by AD 2022-0253, dated December 19, 2022 (EASA AD 2022-0253) (also referred to as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states that it has been determined that engine crystal icing protection could be (temporarily) lost if an erroneous total pressure value is provided by the airplane system, which, if not corrected, also could lead to dual engine in-flight shutdown and result in reduced control of the airplane. To address this unsafe condition, Rolls-Royce developed new EEC full-authority digital engine control software (EEC standard 5.3) for the affected Trent 7000 engines.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1213.

In the NPRM, the FAA proposed to continue certain actions in AD 2022-18-12. The NPRM also proposed to require adding new limitations for intermixing of certain EEC software standards, and an operational limitation for airplanes having an engine with certain EEC software installed, as specified in EASA AD 2022-0253. The NPRM also proposed to prohibit the installation of certain engines under certain conditions. The FAA is issuing this AD to address the unsafe condition on these products.

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

The FAA received additional comments from a commenter, Delta Air Lines (Delta). The following presents the comments received on the NPRM and the FAA's response to each comment.

Delta requested adding an exception to the operational limitations described in paragraph (7) of EASA AD 2022-0253, which Delta stated prohibits intermixing of software once the airplane has been modified to install EEC SW standard 5.3 on both engines. Delta stated that paragraph (7) of EASA AD 2022-0253 contradicts paragraph (4) of EASA AD 2022-0253, which allows intermixing certain software standards. Delta requested that the exception allow installation of an affected EEC unit, software, or engine if the airplane is operated under certain operational requirements. Delta reasoned that because the software can be installed on individual engines or EECs, an affected EEC unit or engine should be permitted to be installed on a modified airplane ( i.e., go from having both engines updated and unaffected to having only one engine updated) as long as the configuration meets intermixing or interchangeability requirements and the 2-year limit specified in paragraph (6) of EASA AD 2022-0253 is not exceeded. Delta pointed out that allowing this would promote operational flexibility if an updated EEC unit or engine needs to be replaced and the only available EEC unit or engine has not been updated to EEC software standard 5.3. Delta added that it made a similar comment during EASA's rulemaking process for EASA AD 2022-0253 and that EASA clarified that paragraph (7) of EASA AD 2022-0253 didn't prohibit re-installing affected EEC software on the airplane. Delta recommended revising the Background section, Related Service Information Under 1 CFR part 51 section, and paragraph (h) of the proposed AD with the exceptions or clarifying changes.

The FAA agrees to clarify. Paragraph (7) of EASA AD 2022-0253 simply provides an acceptable method to comply with the operational limitations in paragraph (6) of EASA AD 2022-0253, which only becomes effective 2 years after the effective date of this AD. Paragraph (7) of EASA AD 2022-0253 does not prohibit intermixing or interchangeability before that date, but instead clarifies that changing the modified airplane configuration to install an affected EEC unit or engine would mean the airplane no longer complies with the operational limitations in paragraph (6) of EASA AD 2022-0253. The FAA has not changed this AD in this regard.

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

EASA AD 2022-0253 specifies procedures for limitations for intermixing of certain EEC software and an operational limitation for engines with certain EEC software installed. EASA AD 2022-0253 specifies that installation of serviceable EEC software is acceptable for compliance with (terminates) the operational limitation, provided that no affected EEC software, affected EEC unit, or affected engine is subsequently installed on the airplane. EASA AD 2022-0253 also prohibits the installation of engines with certain EEC software. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD, affects 20 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. The NPRM published in the Federal Register on July 20, 2023 (88 FR 46702). The NPRM was prompted by AD CF-2023-28, dated May 4, 2023, issued by Transport Canada, which is the aviation authority for Canada (Transport Canada AD CF-2023-28) (also referred to as the MCAI). The MCAI states a deficiency in the design of the engine fire extinguishing control and indication system was discovered. After the loss of one hot battery DC bus, the AVAIL legend on BTL 1 and BTL 2 push button annunciators (PBAs) will not illuminate green upon pressing the corresponding ENG FIRE PBA. This condition affects both L ENG FIRE and R ENG FIRE PBAs on the overhead panel. The misleading indication given by the AVAIL legend on BTL 1 and BTL 2 PBAs will affect the crew's assessment of the situation. The crew may hesitate to extinguish an engine fire despite having access to a functional engine fire extinguishing system, or may reselect the FIRE PBA, resulting in loss of the ability to isolate and extinguish the fire.

In the NPRM, the FAA proposed to require installing a software update to the ICCP RDC, as specified in Transport Canada AD CF-2023-28. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1501.

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

The FAA received an additional comment from Delta Air Lines (Delta). The following presents the comment received on the NPRM and the FAA's response.

Delta requested that an additional exception be added to paragraph (h) of the proposed AD to clarify that it is acceptable to use a different method of upgrading the software, using Airbus Canada Limited Partnership Service Bulletin BD500-311001, Issue 001, dated March 14, 2023, only as a reference. Delta explained that it has a different policy for installing software that requires the use of a Portable Maintenance Access Terminal (PMAT), model PMAT2000, instead of a USB device.

The FAA partially agrees with the proposed changes. The FAA agrees to clarify that the PMAT method is permitted, but the FAA will not require the use of a specific model of PMAT. Also, using the service information as a reference must be specified in a note rather than in the paragraph itself. Therefore, a single paragraph (h)(2) has been added to this AD to provide this clarification, and a note has been added regarding the use of Airbus Canada Limited Partnership Service Bulletin BD500-311001, Issue 001, dated March 14, 2023, as a reference.

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

Transport Canada AD CF-2023-28 specifies procedures for installing the software update to the ICCP RDC to restore the intended functionality of the PBA green indications. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 76 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all MHI RJ Aviation ULC Model CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2C11 (Regional Jet Series 550), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. The NPRM published in the Federal Register on May 12, 2023 (88 FR 30685). The NPRM was prompted by AD CF-2022-66, dated December 8, 2022, issued by Transport Canada, which is the aviation authority for Canada (referred to after this as the MCAI). The MCAI states that during assembly of the Halon metering device, the discharge head was not fully seated on cargo fire extinguisher containers having certain serial numbers. The threads in the discharge neck were not re-tapped after the discharge disc was welded resulting in an undersized thread, which prevented the Halon metering device from being fully seated. This will result in an increased Halon mass flow rate through the metering device during discharge, which could reduce the duration of the Halon flow.

In the NPRM, the FAA proposed to require the inspection of cargo fire extinguisher container serial numbers and the replacement of the affected containers, and to limit the installation of affected parts. The FAA is issuing this AD to address an increased Halon mass flow rate through the metering device during discharge, which could reduce the duration of the Halon flow. The unsafe condition, if not addressed, when combined with a cargo fire, could lead to a reduction in the fire extinguishing and suppression capabilities of the fire protection system.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1040.

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

The FAA received an additional comment from MHI RJ Aviation ULC. The following presents the comment received on the NPRM and the FAA's response.

MHI RJ Aviation ULC stated paragraphs (g), (h), and (k)(2)(i) of the proposed AD refer to MHIRJ Service Bulletin 670BA-26-014, dated July 28, 2022. The commenter explained that the current revision is at Revision A, dated December 23, 2022, and has been accepted by Transport Canada Continuing Airworthiness. The commenter requested that a credit statement for the initial issue be added to the proposed AD.

The commenter added that paragraph (h) of the proposed AD is referring to Collins Service Bulletin Fire Extinguisher-26-A, dated April 4, 2022. The commenter explained that the current revision is at Revision 1, dated June 16, 2022. The commenter noted that since the latest revision of the Collins service bulletin is also referenced in MHIRJ Service Bulletin 670BA-26-014, Revision A, dated December 23, 2022, Collins Service Bulletin Fire Extinguisher-26-A, Revision 1, dated June 16, 2022, should be referenced in paragraph (h) of the proposed AD.

The FAA partially agrees with the request. The FAA agrees that MHIRJ Service Bulletin 670BA-26-014, Revision A, dated December 23, 2022, as the above-mentioned commentor noted, is the current revision and should be referenced in this AD. The FAA has revised paragraphs (g), (h), and (k)(2)(i) of this AD to add the latest service information revision as an acceptable method of compliance. Accordingly, the FAA disagrees that a credit paragraph is necessary.

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

The FAA reviewed MHIRJ Service Bulletin 670BA-26-014, dated July 28, 2022, and Revision A, dated December 23, 2022. This service information specifies procedures for an inspection for the serial numbers of the high rate of discharge (HRD) and low rate of discharge (LRD) cargo fire extinguisher containers and the replacement of affected cargo fire extinguisher containers. These documents are distinct because MHIRJ Service Bulletin 670BA-26-014, Revision A, dated December 23, 2022, added an alternative method to find the serial numbers.

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

The FAA estimates that this AD will affect 597 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A330-202, A330-203, A330-223, A330-243, and A330-841 airplanes. The NPRM published in the Federal Register on July 20, 2023 (88 FR 46697). The NPRM was prompted by AD 2023-0054, dated March 14, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0054) (also referred to as the MCAI). The MCAI states that the cold working process was partially completed on the circumferential joint at frame 58.

In the NPRM, the FAA proposed to require modification of the circumferential joint, as specified in EASA AD 2023-0054. The NPRM also proposed to require contacting the Manager, International Validation Branch, FAA; or EASA; or Airbus SAS's EASA Design Organization Approval for instructions if any discrepancy is found during accomplishment of any inspection that is part of the modification. The FAA is issuing this AD to address a partially completed cold working process on the circumferential joint at frame 58, which could affect the structural integrity of the airplane and result in catastrophic failure.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1499.

The FAA received comments from Air Line Pilots Association, International (ALPA), who supported the NPRM without change, and an individual whose comments are unrelated to the unsafe condition identified in the NPRM.

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

EASA AD 2023-0054 specifies procedures for modifying the circumferential joint at frame 58. Modification includes accomplishing rotating probe inspections of the fastener holes for cracks, cold working the fastener holes, and measuring the maximum hole diameter. EASA AD 2023-0054 also specifies contacting the manufacturer for instructions if any discrepancy ( i.e., any crack or any existing hole diameter that is more than or equal to the minimum starting hole diameter) is found during any inspection.

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

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

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

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

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

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

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

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

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

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it updates airspace descriptions. This update is an administrative change and does not change the airspace boundaries or operating requirements.

Class D and Class E airspace are published in paragraphs 5000 and 6002 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, incorporated by reference in 14 CFR 71.1 annually. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 19, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next FAA Order JO 7400.11 update. FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends the Class D airspace and Class E surface airspace for Northeast Philadelphia Airport, Philadelphia, PA, by:

• Removing the word North from the first line of the header of the Class D airspace description, as it is not needed.

• Removing the city name Philadelphia from the second line of the header of the Class D airspace description, as it is not needed.

• Removing the word North from the first line of the header of the Class E Surface airspace description, as it is not needed.

• Removing the city name Philadelphia from the second line of the header of the Class E Surface airspace description, as it is not needed.

• Replacing the term Notice to Airmen with Notice to Air Missions in Class D airspace and Class E Surface airspace descriptions.

• Replacing the term Airport/Facility Directory with Chart Supplement in the descriptions of Class D airspace and Class E Surface airspace.

This action is an administrative change and does not affect the airspace boundaries or operating requirements; therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

Prior to the implementation of the Centers of Excellence and Expertise (Centers), U.S. Customs and Border Protection (CBP) processed imports on a port-by-port basis. Due to CBP's port-by-port trade processing authority, importers claimed disparate processing treatment for similar goods entered at different ports of entry, causing trade disruptions, increased transaction costs, and information lapses. In response, CBP established 10 Centers with broad, centralized decision-making authority to facilitate trade, reduce transaction costs, increase compliance with applicable import laws, and achieve uniformity of treatment at the ports of entry for identified industry sectors. The Centers focus on nationwide entry summary processing and other trade oversight on a per-importer account basis through a single assigned Center, replacing traditional post-summary processing for each entry at each port of entry. The port directors continue to retain sole authority over the control, movement, and release of cargo.

The Centers are managed from strategic locations around the country, permitting CBP to focus its trade expertise on industry-specific issues and provide tailored support for importers. The Centers and the cities wherein each management office is located are as follows: (1) Agriculture & Prepared Products, Miami, Florida; (2) Apparel, Footwear & Textiles, San Francisco, California; (3) Automotive & Aerospace, Detroit, Michigan; (4) Base Metals, Chicago, Illinois; (5) Consumer Products & Mass Merchandising, Atlanta, Georgia; (6) Electronics, Long Beach, California; (7) Industrial & Manufacturing Materials, Buffalo, New York; (8) Machinery, Laredo, Texas; (9) Petroleum, Natural Gas & Minerals, Houston, Texas; and (10) Pharmaceuticals, Health & Chemicals, New York, New York. For a more detailed discussion of the scope of industries covered by each Center, please refer to the Interim Final Rule discussed in further detail in Sec. I.C below.

The Centers concept developed as a result of discussions between CBP and the Commercial Customs Operations Advisory Committee (COAC), which advises the Commissioner of CBP, the Secretary of the Department of Homeland Security (DHS), and the Secretary of the Department of the Treasury (Treasury) on the commercial operations of CBP and related DHS and Treasury functions. See Section 109, Public Law 114-125, 130 Stat. 122 (Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA)).

In 2012, CBP developed a test to incrementally transition the operational trade functions that traditionally resided with port directors to the Centers. The purpose of the test was to broaden the ability of the Centers to make decisions by waiving certain identified regulations to the extent necessary to provide the Center directors, who manage the Centers, with the authority to make the decisions normally reserved for the port directors. On August 28, 2012, CBP published the first of three General Notices in the Federal Register (Announcement of Test Providing Centralized Decision-Making Authority for Four CBP Centers of Excellence and Expertise, 77 FR 52048) announcing a general test (the Centers test) open to participants from industries covered by the Electronics Center, the Pharmaceuticals, Health & Chemicals Center, the Automotive & Aerospace Center, and the Petroleum, Natural Gas & Minerals Center. CBP modified the Centers test in two subsequent Federal Register notices published on April 4, 2013 (Modification and Expansion of CBP Centers of Excellence and Expertise Test to Include Six Additional Centers, 78 FR 20345) and March 10, 2014 (Centers of Excellence and Expertise Test; Modifications, 79 FR 13322).

Over the course of the Centers test, the decision-making authority of the Center directors was incrementally broadened. On September 11, 2014, the then-serving Commissioner of CBP, R. Gil Kerlikowske, signed Delegation Order 14-004, which expanded the Center directors' decision-making authority by delegating to the Center directors all functions, authorities, rights, privileges, powers, and duties vested in port directors by law, regulation, or otherwise. The delegation enabled these functions, authorities, rights, privileges, powers, and duties to be exercised concurrently by port directors and Center directors.

Section 110 of TFTEA required the development and implementation of the Centers. Accordingly, on December 20, 2016, CBP published an interim final rule, CBP Decision (CBP Dec.) 16-26 (Centers IFR), in the Federal Register (Regulatory Implementation of the Centers of Excellence and Expertise, 81 FR 92978), amending title 19 of the Code of Federal Regulations (19 CFR) and establishing the Centers as a permanent organizational component of the agency. Furthering the Centers' trade enhancement goals, the Centers IFR implemented the Centers' broad decision-making authority by amending parts of title 19 of the CFR to: (1) define the Centers and the Center directors; (2) modify the definition of the term “port director” in order to distinguish the port directors' functions from the Center directors' functions; (3) identify the Center management offices; (4) explain the process by which importers are assigned to the Centers based on the predominant Harmonized Tariff Schedule of the United States (HTSUS) tariff classification of the importer's goods; (5) establish an appeals process that allows an importer to contest its assignment to a specific Center; (6) identify the regulatory functions that have been transitioned from the port directors to the Center directors and those functions that the port directors and the Center directors carry out jointly; (7) clarify that certain payments and documents may continue to be submitted at the ports of entry and electronically; and (8) provide a list of industries covered by each of the Centers. A limited number of responsibilities and authorities that had been provided to the Center directors under the Centers test were not transitioned to the Centers as part of the interim amendments. 1

On September 5, 2019, CBP published a technical correction, CBP Dec. 19-11, (Technical Correction), in the Federal Register (84 FR 46676) to correct discrepancies in 19 CFR 12.73(j) and 141.113(b) to properly reflect the authority of the Center directors. Following the publication of an unrelated final rule in the Federal Register on December 27, 2016 (81 FR 94974), § 12.73(j) contained an inconsistency that was corrected to reflect that both the Center directors and port directors have the authority to collect certain U.S. Environmental Protection Agency (EPA) declarations, and the Center directors, rather than the port directors, have the authority to extend the submission deadline for such EPA declarations. Additionally, an inadvertent omission in the amendatory instructions to § 141.113(b) was corrected to replace the word “port director” with the word “Center director.”

Pursuant to the agency management or personnel exemption in 5 U.S.C. 553(a)(2), the agency organization, procedure, and practice exemption in 5 U.S.C. 553(b)(A), and the good cause exemption in 5 U.S.C. 553(b)(B), the interim regulatory amendments were promulgated without prior public notice and comment procedures. However, the Centers IFR provided for the submission of public comments that would be considered before adopting the interim amendments as a final rule. The prescribed 30-day public comment period closed on January 19, 2017.

One of the comments that CBP received during the initial 30-day public comment period requested a 60-day extension of the 30-day public comment period. In response to the comment and to allow for as much public participation as possible in the formulation of the final rule, on January 27, 2017, CBP extended the initial 30-day public comment period for another 60 days until March 20, 2017 (82 FR 8588). During the public comment period, CBP received eight comments, six of which were within the scope of the Centers IFR. 2 CBP has carefully considered all comments submitted in response to the Centers IFR.

All comments were supportive of the implementation of the Centers as a permanent organizational component of the agency. Nonetheless, several commenters had concerns or questions about specific aspects of the Centers' organization and operations. A description of these comments, together with CBP's analysis, is set forth below.

Comment: Two commenters expressed general approval of the Centers, with one commenter, a law firm, stating that the Centers constitute a vast improvement over the disjointed and inconsistent treatment of entries that resulted from the administration of imports on a port-by-port basis, reflecting the goals of increased administrative efficiencies noted in the Centers IFR cost-benefit analysis. The commenter especially highlighted its positive experience in working with various Centers.

Response: The Centers represent a new approach to trade processing that is more in line with the trade community's current business practices, and CBP is pleased to know that the trade community shares the view that the Centers enhance compliance, collaboration, and efficiency.

Comment: One commenter expressed concerns regarding coordination between the Centers and ports, as well as the procedures pertaining to the assignment of importers to the Centers. According to the commenter, the lack of procedures and policies that govern how the Centers and ports coordinate with each other creates difficulties in determining which component serves as the primary decision-maker and/or point of contact regarding these matters. While the commenter acknowledged that the assignment of importers to the Centers may provide clarification as to which component serves as the primary decision-maker and/or point of contact, the commenter also raised additional concerns and questions regarding the assignment of importers to the Centers.

First, the commenter noted that the assignment of importers to the Centers on an account basis rather than based on the predominant commodities of each entry constitutes a reversal of a policy that CBP announced in 2016 for entries requiring review, such that an importer could end up dealing with multiple Centers, for different entries. Second, the commenter inquired whether CBP is prepared to properly allocate importers to the Centers based on their account activity and business model. Specifically, the commenter inquired about the process by which CBP assigns importers with minimal account activity throughout the year to the Centers, and how the Centers coordinate with each other when an importer was assigned to one Center on an account level but enters a small number of shipments with predominant HTSUS tariff classifications covered by a different Center.

Response: CBP disagrees with the commenter's assertion that a lack of coordination in the concurrent decision-making authority of port directors and Center directors creates uncertainty as to which component serves as the point of contact and primary decision-maker. Either the amended regulations or the corresponding CBP Form specifies which component should be contacted regarding these matters. In order to better enable the Centers to accomplish their trade mission (that is, to strategically enforce commercial import laws while also facilitating the flow of legitimate trade), the regulatory, permanent implementation of the Centers required CBP to make minor adjustments to the Centers' authorities and responsibilities, and CBP's internal policies and procedures. For example, in order to achieve full end-to-end processing of import activity, CBP updated its internal policies and procedures to provide for the required level of coordination and collaboration between the Centers and the ports, including creating instances of concurrent decision-making authority between the Center directors and port directors during the Centers implementation process. Additionally, the Centers IFR included minor modifications to the Centers' responsibilities and authorities, and the process by which importers are assigned to the Centers. Therefore, CBP recognizes that the regulatory implementation of the Centers as a permanent organizational component of the agency has required an adjustment period during which the trade community must become acquainted with the modified processes, including which component serves as the primary decision-maker for certain trade functions and the process by which importers are assigned to the Centers. CBP appreciates the comment as it provided CBP with an opportunity to guide the trade community through the adjustment process.

The Centers centralize and consolidate post-release activities of importers on an account basis. Generally, each importer is assigned to a Center based on the predominant HTSUS tariff classification of the importer's imported goods. Once an importer has been assigned to a specific Center, that Center will process all of the importer's entry summaries, regardless of the predominant HTSUS tariff classification of a specific entry. For example, an importer whose imports are 75 percent footwear and 25 percent miscellaneous items will be assigned to the Center for Apparel, Footwear and Textiles. Once the importer has been assigned to the Center for Apparel, Footwear and Textiles, all of the importer's activities will be processed by that Center, regardless of whether the predominant HTSUS tariff classification of a specific entry relates to a different industry sector.

The processing of trade activity on an account basis does not prevent the Centers from providing tailored support to importers and handling industry-specific issues. When it is necessary to leverage another Center's expertise, the Centers coordinate with each other, and CBP has streamlined the coordination process over time. However, over time, the Centers have developed a more proficient level of knowledge of their accounts and import activities, which has enabled the Centers to administer trade activity more independently.

In order to ensure that an importer is assigned to the Center that corresponds with the importer's business model, the assignment process differs slightly in a limited number of circumstances. For example, CBP may assign an importer to a Center other than the Center reflecting the predominant HTSUS tariff classification of the importer's goods, if such deviation from the regular assignment process is supported by information such as: (1) the importer's associated business practice within an industry; (2) the intended use of the predominant number of goods imported; and (3) the high relative value of the imported goods. Additionally, since the business practices of brokers do not align within a particular industry sector, the import activities of brokers acting as Importers of Record (IORs) are processed on an entry-by-entry basis, meaning that each entry summary will be assigned to a specific Center based on the entry summary's predominant HTSUS tariff classification. Import activities of importers with minimal account activity throughout the year who have not yet been assigned to a specific Center are processed similarly. Furthermore, importers are permitted to appeal the assignment to a Center at any time and can seek re-assignment to a different Center. See 19 CFR 101.10(c). As a result, CBP finds that the current assignment process properly allocates importers to Centers based on the importers' account activity and business models.

Comment: One commenter requested that CBP assign entries filed by express courier brokers to the Centers on the basis of the overall post-release account activity of the ship-to party, or in the alternative, create a separate Center for express courier brokers. According to the commenter, the exclusion of express courier brokers from participation in the Centers model is anathema to the purpose of the Centers—that is, to focus CBP's trade expertise on industry-specific issues and tailored support for importers. The commenter explained that, although express courier brokers serve as IORs on entries, the predominant tariff classification of the entries is not driven by the express courier broker's business model but the business model of the ship-to party (formerly known as consignee), who serves as the party causing the importation and often serves as an IOR itself on other (unrelated) entries. Accordingly, the commenter requested that CBP assign entries filed by express courier brokers to the Centers on the basis of the overall post-release account activity of the ship-to party, instead of the post-release account activity of the importer of record (that is, the express courier broker), or in the alternative, create a separate Center for express courier brokers.

Response: CBP appreciates the comment as it underscores the importance of the roles of filers and brokers in the importation process and agrees that express courier brokers do not squarely fit within one of the ten defined industry sectors because their business practices cross all industry sectors. Nonetheless, CBP finds that the Centers are well equipped to handle the activities of express courier brokers as they fit within the trade community's overall business practices.

The Centers process trade activity from a national perspective, at the IOR and ultimate consignee level, and, therefore, have full visibility into the trade community's normal business practices, including the activities of express courier brokers. Like the trade activities of other brokers acting as IORs, the import activities of express courier brokers are also processed on an entry-by-entry basis, meaning that each entry summary will be assigned to a specific Center based on the entry summary's predominant HTSUS tariff classification. As such, it is CBP's position that the Centers are well equipped to handle the activities of express courier brokers because the Centers' current operating model accounts for the fact that express courier brokers enter merchandise across all industry sectors.

Express courier brokers are not excluded from participation in the Centers model, as the commenter suggested. To the contrary, the Centers have gained experience on industry-specific issues, which has led to an improved level of service to express courier brokers. This includes the creation of cross-educational opportunities that will serve to inform express courier brokers on compliance issues and CBP on the trade community's current business practices, including the express courier brokers' processes. CBP is committed to ensuring that the business processes of all members of the trade community are accounted for in the Centers' operational approach and continues to strengthen relationships in a coordinated effort to secure the U.S. economy through lawful trade and travel.

Comment: One commenter commended CBP on the creation of the Centers but suggested several minor technical revisions to the language of the CBP regulations pertaining to the Centers (Centers regulations). For example, the commenter noted that several provisions of the Centers regulations provide that certain documents or payments may be filed with CBP, “either at the port of entry or electronically.” The commenter explained that the phrase “either at the port of entry or electronically” implies that the Centers only accept electronic submissions of these types of documents or payments. The commenter also noted that, in the context of paragraph (b) of section 174.12, the phrase conflicts with the regulatory language in paragraph (d), which permits but does not require electronic filing.

Additionally, the commenter pointed out that the fact that protests filed with the Centers can cover entries filed at multiple ports of entry constitutes a major change to CBP's protest procedures, and as such, should be highlighted in the regulatory text. Therefore, the commenter requested that CBP amend paragraph (d) of section 174.12 by adding the following sentence: “A protest filed with the Center director may include entries filed at multiple ports of entry.”

Response: CBP understands that the implementation of the Centers led to an initial adjustment period during which members of the trade community had to become acquainted with the Centers' processes, including the submission process for documents and payments. While CBP believes that any uncertainty as to the submission process was resolved as part of the initial adjustment period, CBP appreciates the comment as it provides CBP with an opportunity to clear up any potentially remaining uncertainty.

The use of the phrase “either at the port of entry or electronically” does not imply that the Centers only accept electronic submissions of certain documents and payments, as suggested by the commenter. As part of the transition of certain trade functions from the ports of entry to the Centers, the Centers IFR shifted certain staff positions from the port directors' chain of command to the Center directors' chain of command. While the reallocated personnel now report to a Center director rather than a port director, the reallocated personnel continue to handle the same trade functions. In order to remain accessible to the trade community and to assist with enforcement and compliance issues as they arise, the reallocated personnel remain in their previous locations—primarily, at the ports of entry. The realignment was merely virtual. Thus, in the phrase “either at the port of entry or electronically,” the use of the preposition “ at ” (rather than “with”) establishes that hard copies of the documents or payments can be filed at the ports of entry ( with staff of either the port of entry or the Centers). Like electronic submissions, the submissions will then be forwarded to and processed by the Center assigned to that particular submission.

Additionally, CBP disagrees that it is necessary to amend paragraph (d) of section 174.12 to further clarify that a single protest can now pertain to multiple entries filed at multiple ports of entry. CBP finds that the regulatory language in paragraph (b) of section 174.13 sufficiently establishes that a single protest can now pertain to multiple entries filed at multiple ports of entry.

Based on the analysis of the comments and further consideration, CBP adopts as final the interim rule (Centers IFR), CBP Dec. 16-26, published in the Federal Register (81 FR 92978) on December 20, 2016, as modified by the Technical Correction, CBP Dec. 19-11, published in the Federal Register (84 FR 46676) on September 5, 2019, without changes.

Executive Orders 13563 (Improving Regulation and Regulatory Review) and 12866 (Regulatory Planning and Review), as amended by Executive Order 14094 (Modernizing Regulatory Review), direct agencies to assess the costs and benefits of available regulatory alternatives, and if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094. Accordingly, the rule has not been reviewed by the Office of Management and Budget (OMB).

Prior to the launch of the Centers test, CBP port directors overseeing imports were solely responsible for facilitating lawful importation; protecting U.S. revenue by assessing and collecting customs duties, taxes, and fees; and detecting, interdicting, and investigating illegal international trafficking in arms, munitions, counterfeit goods, currency, and acts of terrorism at their U.S. port of entry. Before the implementation of the Centers, when a shipment reached the United States, the IOR ( i.e., the owner, purchaser, or licensed customs broker designated by the owner, purchaser, or consignee) would file entry documents and a bond for the imported goods with the director of the port where the merchandise was entered. If necessary, CBP staff working under the port director would then hold or examine the shipment or validate the entry documents to ensure the merchandise's safety, security, and customs compliance with U.S. importing guidelines, or its general admissibility. The port director would release the shipment from CBP's custody if no legal or regulatory violations occurred, allowing post-cargo release (hereafter, post-release) processing to commence. Within 10 working days of the merchandise's entry at a designated customhouse, CBP would require the importer to file entry summary documentation consisting of the entry package returned to the importer, broker, or authorized agent by CBP at the time the merchandise was released and an entry summary (CBP Form 7501), and to deposit any estimated duties on the shipment. In some cases, CBP would send a formal request for other invoices and documents (via CBP Form 28: Request for Information) to the importer to assess duties, collect statistics, or determine that import requirements have been satisfied prior to processing the entry summary. Before completing the importation process, CBP Import Specialists and Entry Specialists working under the port director would review and process all entry summary and related documentation; classify and appraise the merchandise; collect final duties, taxes, and fees on the goods entered; and liquidate entry summaries. If necessary, the CBP trade personnel would also review and process protests, perform importer interviews, and initiate monetary trade penalties and liquidated damages cases.

Due to CBP's port-by-port trade processing authority and scope, elements of the cargo entry and release process, such as holds, exams, document submission requirements, and final determinations regarding admissibility, varied widely among ports of entry and resulted in the length of the process varying greatly as well. Importers often claimed to receive disparate processing treatment for similar goods entered at different ports of entry, causing trade disruptions, increased transaction costs, and information lapses for not only the importer but also CBP. With an intent to facilitate trade, provide consistent import processing treatment, reduce transaction costs, and strengthen the agency's trade knowledge and enforcement posture, CBP began testing an organizational concept in 2011 that grouped agency trade expertise and operational responsibilities by industry and related import accounts into designated Centers.

Since the commencement of the Centers test, the Centers have successfully met their trade enhancement goals. Based on the Centers test's success, CBP published the Centers IFR in the Federal Register (81 FR 92978) on December 20, 2016, which discontinued the Centers test and established the Centers as permanent organizational components of CBP through regulatory amendments. The Centers regulations were later modified by the Technical Correction published in the Federal Register (84 FR 46676) on September 5, 2019.

This rule adopts the Centers IFR, as modified by the Technical Correction, as a final rule, without changes, and finalizes the transition of certain trade enforcement responsibilities and the majority of post-release trade functions from the purview of port directors to Center directors. 3 Port directors continue to retain singular authority over matters pertaining to the control, movement, examination, and release of cargo. The Centers focus on nationwide entry summary processing and other trade oversight on a per-importer account basis through virtual means, which replaces traditional post-release import processing per entry at each port of entry with processing by a single assigned Center according to the importer account. To conduct such national, industry-focused processing, CBP has permanently staffed the Centers with personnel specializing in trade matters through an internal realignment, which imposed no costs on CBP. Centers personnel have generally remained at their previous locations, primarily at ports of entry, to stay accessible to the trade community and continue to assist with enforcement and compliance issues that arise at ports of entry with the physical importation of cargo. CBP remotely manages Centers employees through multidisciplinary teams located across the nation, thereby enabling CBP to extend the Centers' hours of service to trade members, maintain a high level of industry expertise in major port cities, and staff the Centers with industry experts from across the country.

Since CBP received no comments critical of the economic impact analysis on the interim final rule, and one positive comment generally reflecting the analysis, and because CBP is not making any changes in the final rule, CBP largely adopts the Centers IFR's economic analysis, with updated data. CBP also made minor changes to the analysis to better reflect how the rule was implemented in practice. In this regulatory impact analysis, CBP discusses the costs and benefits that CBP and trade members experience with the regulatory implementation of the Centers in qualitative and, when possible, quantitative or monetary terms. CBP incurred sunk costs related to travel, equipment, and supplies and materials, as well as some other costs during the Centers test phase, related to establishing and transitioning to Centers, totaling approximately $760,000 from 2012 to February of 2014. The document “Program Assessment of the Centers of Excellence and Expertise,” available in the docket, assesses the impacts of the Centers test phase in more detail. As in the analysis for the interim final rule, we do not include these costs as costs of the rule. We report them here to give the reader a more complete understanding of the costs for the entire lifecycle of the Centers, including the test period.

For the purpose of this analysis, the complete Centers rulemaking effort, including the Regulatory Implementation of the Centers of Excellence and Expertise interim final rule, the Technical Correction to Centers of Excellence and Expertise Regulations, and this final rule, are collectively referred to as “the Centers rule” or “this rule.”

This rule introduces minimal costs to CBP and the trade community because it largely meets its objectives through low- to no-cost internal organization changes. The transition of post-release import processing and trade-related responsibilities from ports of entry to the Centers neither affects the duties, taxes, and fees payment and entry summary submission processes for importers, nor does it adversely affect other post-release activities ( e.g., processing duty refund claims, reviewing protests). Even with the Centers, importers may continue to file payments and paper entry summary documentation with CBP either at the port of entry or electronically. All payments from the trade community, whether submitted to a Center, at a port of entry, or electronically, continue to go directly to CBP's Office of Finance. If trade enforcement or post-release processing issues emerge, CBP continues to maintain its formal importer notification and remedy processes. Upholding these administrative processes generates no related costs to the agency.

At the time the Centers IFR was published, CBP anticipated that if an importer or broker submitted paper entry summary documentation at a port of entry without an appropriate Center representative on site, CBP staff at the port would reroute the documents internally by electronic means to the Center assigned to manage the importer's account. In practice, electronic rerouting has been found to be unnecessary due to the implementation of the Automated Commercial Environment (ACE); therefore, CBP incurs no cost for document rerouting as predicted in the Centers IFR. 4

CBP does experience costs from processing ( i.e., reviewing and making a determination on) Center assignment appeals. Generally, CBP assigns each importer to a specific Center based on the HTSUS tariff classification and industry sector corresponding to the predominant number of goods the importer imports. 5 An importer that is displeased with its Center assignment may appeal the assignment at any time by submitting a written appeal to CBP by mail or email. Appeals must include the following information: (1) current Center assignment; (2) preferred Center assignment; (3) all affected IOR numbers and associated bond numbers; (4) written justification for the change in Center assignment; and (5) import data, as described in the “Finalization of the Centers of Excellence and Expertise Test” section of the Centers IFR. CBP data shows that importers file significantly fewer Center assignment appeals than what was predicted in the Centers IFR. CBP receives two Center assignment appeals each year compared to the 60 that was predicted in the Centers IFR. 6 Each appeal takes 30 minutes (0.5 hours), on average, for CBP Headquarters staff to process, which is half has long as predicted in the Centers IFR. 7 CBP generally notifies trade members of its Center appeal decisions by electronic means, thus imposing no additional cost on the agency. 8 Based on the number of Center appeals submitted annually and CBP's time burden to manage each appeal, CBP sustains an annual cost of $96.61 from the Centers rule's Center assignment appeals process. 9

As outlined in this final rule, the responsibilities of the trade community remain largely unchanged with the Centers' regulatory implementation. Importers may continue to file cargo release documentation and payments where their merchandise is entered. Importers and brokers who file electronically can continue to use CBP's automated systems, such as the Automated Broker Interface, to submit required import data and payments to CBP. Meanwhile, CBP continues to maintain a consistent formal notification and remedy process regarding post-release and other trade-related issues with the Centers' establishment. Trade members only incur costs from this rule when appealing a Center assignment.

Importers may choose to appeal their Center assignment for a number of reasons, including the expectation of better service or product knowledge at another Center. As previously discussed, if an importer chooses to appeal its Center assignment, it must submit a written appeal to CBP by mail or email that includes information about its current and preferred Center assignments ( see “Finalization of the Centers of Excellence and Expertise Test” section of the Centers IFR for specific appeal requirements). CBP estimates that each appeal takes 45 minutes (0.75 hours) for an importer to complete. 10 The opportunity cost estimate is equal to the median hourly wage of an importer ($34.81) multiplied by the hourly time burden for an importer to complete and submit a Center assignment appeal (0.75 hour), and then rounded. 11 This results in an opportunity cost of $26.11 for a single appeal. Due to the relative affordability of submitting a Center assignment appeal via email rather than mail, CBP believes that the vast majority of importers file appeals electronically. Therefore, CBP does not consider the printing or mailing costs for an importer to submit a Center assignment appeal in this analysis. By applying the cost for importers to complete and submit a Center assignment appeal to the expected number of Center assignment appeals filed annually, CBP finds that this rule's appeals process generates $52.22 in yearly costs to the trade community. 12 This cost is lower than the Centers IFR estimated annual cost to the trade community of $1,803 largely due to the difference in projected (60) and actual (2) Center appeals received.

Certain trade members, particularly CBP-accredited laboratories and CBP-approved gaugers, may incur added costs with this rule's amendments to their obligations outlined in 19 CFR 151.12(c)(5) and (6), and 19 CFR 151.13(b)(5) and (6). 13 As amended, CBP requires CBP-accredited laboratories to notify an additional CBP representative, the Center director, of “any circumstance which might affect the accuracy of work performed as an accredited laboratory, . . . their consequences, and any corrective action taken or that needs to be taken” and “of any attempt to impede, influence, or coerce laboratory personnel in the performance of their duties, or of any decision to terminate laboratory operations or accredited status.”  14 Similarly, CBP requires CBP-approved gaugers to notify an additional CBP representative, the Center director, of “any circumstance which might affect the accuracy of work performed as an approved gauger, . . . their consequences, and any corrective action taken or that needs to be taken” and “of any attempt to impede, influence, or coerce gauger personnel in the performance of their duties, or of any decision to terminate gauger operations or approval status.”  15 Under previous, pre-Centers regulations, CBP mandated CBP-accredited laboratories and CBP-approved gaugers to contact the port director and Executive Director, Laboratories and Scientific Services, on the matters described above. Given that CBP did not receive any notifications previously required under 19 CFR 151.12(c)(5) and (6) and 19 CFR 151.13(b)(5) and (6) in the past 20 years prior, CBP assumes that this rule's additional CBP notification step for CBP-accredited laboratories and CBP-approved gaugers will continue to not introduce any costs to these parties. 16

In all, the Centers rule introduces annual costs of $96.61 to CBP and $52.22 to trade members for a total of $148.83.

The Centers rule produces valuable benefits to CBP and the trade community. This section of the analysis largely discusses the benefits of the rule qualitatively due to quantitative data limitations. Based on the success of the Centers test and public comments on the Centers IFR, CBP believes that, as permanent organizational components, the Centers continue to provide uniform post-release processing and trade-related decision-making, strengthen critical agency knowledge of industry practices and products, heighten CBP's trade enforcement skills, and improve trade communication. CBP also believes this occurs on a much grander scale than observed during the test phase because CBP has since assigned all current eligible importers to a Center. CBP continues to assign new importers to Centers, if eligible, once the Center alignment can be determined based on their import history.

The Centers allow CBP to conduct uniform entry summary processing and trade-related decision-making nationwide on an industry-specific, importer account basis by transitioning the post-release processing of an importer's goods from a transactional level at each port of entry to one assigned Center. Public comments support this assessment. One comment from a law firm explained that their clients have seen benefits, including increased efficiency, consistency, and more accurate treatment in their interactions with Centers compared to the “disjointed and inconsistent treatment that resulted from having to deal with individual Ports of Entry.”

As permanent CBP components, the Centers require fewer information requests and conduct better informed trade compliance actions than in the pre-Centers environment, leading to time and cost savings to CBP and trade members. Prior to the implementation of the Centers, when an importer entered similar merchandise at different U.S. ports of entry that required supplemental information for entry summary processing, CBP personnel at each port of entry generally submitted a CBP Form 28: Request for Information to the importer. In that case, the importer responded to each request, even if the responses were identical, and CBP personnel at each port of entry reviewed the duplicative information received from the importer. With the Centers, the importer receives only one CBP Form 28 for the merchandise's entry summary processing, requiring CBP personnel to review the importer's supplemental information only once. For each avoidance of a CBP Form 28, CBP saves 10 minutes (0.17 hours) of time in issuing the request and reviewing the requested information. 17 Importers save an estimated 120 minutes (2.0 hours) in preparation time for each avoided CBP Form 28 response  18 and $69.62 in averted opportunity costs. 19 Internal CBP data shows that there has been more than a 61 percent (14,958 submissions) decrease in CBP Form 28 submissions for 2022 compared to 2014 and more than a 55 percent (11,977 submissions) decrease since the Centers IFR was implemented in 2016. 20 However, due to regulatory changes the trade industry has seen since the Centers IFR, the limitations of CBP systems, trade remedies, and the fact that several importers still have not been assigned to a Center, it is not possible to determine how much the drop in CBP Form 28 submissions can be attributed to this rule. CBP and some importers may experience additional printing and mailing cost savings through reduced CBP Form 28 submissions, though the extent of these savings is unknown.

With a single Center conducting all post-release processing for a particular importer, determinations on protests, marking, and classification matters are now consistent rather than sometimes inconsistent as in the pre-Centers environment. In the pre-Centers environment, importers occasionally received different determinations on similar trade compliance issues depending on the port of entry where their merchandise was processed, which sometimes required duplicative action on behalf of CBP and the importer. The Centers' consistency may enhance importers' awareness of CBP's positions on trade compliance issues, possibly leading to improved compliance and an unknown amount of subsequent savings to both parties in the future. To the extent that the Centers' uniform processing and determinations also decrease post-summary corrections, exams, hold times, and other trade obstacles, the benefits of this rule will be higher.

In addition to creating uniform post-release processing and determinations, the Centers strengthen CBP trade personnel's industry knowledge by concentrating their expertise into a specific import industry set as opposed to the entire range of import industries. According to outreach conducted for this rule, such focused expertise has already enriched CBP relations with the trade community, as demonstrated through a Centers test participant's claim that Center account managers are very knowledgeable of their industry and are now more familiar with their imports and trade issues. 21 Several public commenters on the Centers IFR also expressed positive experiences with the Centers. Increasing Centers staff awareness of importers and their merchandise may also contribute to a decline in requests for information, exams, or holds, which provides time and cost savings to CBP and trade members.

The Centers' industry focus has also enriched trade enforcement. Using knowledge gathered through processing solely entry summaries for the electronics industry, Electronics Center employees uncovered a counterfeit electronic adapter import operation. Since discovering the counterfeiting operation, the Electronics Center has worked with the rights holder to add a trademark onto its electronic device to prevent future intellectual property rights (IPR) violations and subsequent economic losses. 22 Based on the benefits of enhanced industry knowledge gained during the Centers test phase and since the Centers IFR went into effect, CBP believes the permanent establishment of the Centers enhances CBP relations with the trade community, facilitates trade, and results in an improved ability to identify high-risk commercial importations that could enhance import safety, increase revenue protection, and reduce economic losses associated with trade violations.

Furthermore, the Centers streamline communication between CBP and the trade community by replacing communication with each port of entry with communication with one Center. The Centers serve as a single source of information and point of contact for trade members regarding importing requirements, IPR infringement or other trade violations, merchandise holds, and Partner Government Agencies (PGA) issues, eliminating the need for trade members to contact multiple CBP employees and for multiple CBP employees to share duplicative information with members of the trade. Such a decrease in redundant information requests and sharing produces time and cost savings to the trade community and CBP. The Centers also allow for enhanced communication with importers by offering extended hours of service compared to port of entry service hours, which may expedite trade. Without information on the amount of duplicative communication eliminated with the emergence of the Centers or the volume of trade expedited through the Centers' extended hours of service, the overall value of these communication benefits is unknown.

In summary, the Centers rule introduces both costs and benefits. CBP sustains $96.61 in added costs each year from reviewing Center assignment appeals, while trade members bear an annual cost of $52.22 attributable to Center assignment appeals. CBP and trade members also experience benefits from this rule's decreased import costs and time burdens, streamlined trade processing, broadened industry and trade compliance knowledge, enhanced trade enforcement posture, and improved communication, though the overall value of these benefits is unknown. Although not quantified, CBP believes this rule's benefits to CBP and the trade community are considerable, while its costs to these parties are relatively negligible. For these reasons, CBP asserts that the benefits of this rule outweigh its costs, thus providing an overall net benefit to the agency and members of the trade community.

The Regulatory Flexibility Act (5 U.S.C. 601 et. seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires agencies to assess the impact of regulations on small entities. A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business concern per the Small Business Act); a small not-for-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people). CBP initially issued the Centers rule as an interim final rule under the agency management and personnel and procedural rule exceptions of the Administrative Procedure Act. Thus, a Regulatory Flexibility Act analysis was not required. See 5 U.S.C. 553. Nonetheless, CBP considered the economic impact of the Centers IFR on small entities. Since CBP did not receive any comments on the Centers IFR relating to the Regulatory Flexibility Act analysis, CBP adopts the Centers IFR's Regulatory Flexibility Act analysis with updated data, as presented next.

Through the Centers final rule, CBP finalizes the transition of certain trade enforcement responsibilities and the majority of post-release trade functions from the purview of port directors to Center directors. 23 Port directors continue to retain singular authority over regulations pertaining to the control, movement, examination, and release of cargo. Because the Centers introduce a new post-release processing method for all U.S. imports, this rule's regulatory changes affect all importers and brokers who enter goods into the United States, including those considered “small” under the Small Business Administration's (SBA) size standards. 24 Since the vast majority of importers are small businesses, this rule impacts a substantial number of small entities. 25

This rule generates costs and benefits to importers and related members of the trade. As outlined throughout this rule, the responsibilities of the trade community remain largely unchanged due to the Centers rule. However, trade members experience costs when filing a Center assignment appeal and when notifying a Center under the requirements of amended 19 CFR 151.12(c)(5) and (6), and 19 CFR 151.13(b)(5) and (6).

As previously mentioned in the “Executive Orders 13563 and 12866” section, importers incur an opportunity cost of $26.11 per Center assignment appeal. With two appeals expected each year, the annual cost of Center assignment appeals to the entire trade community equals $52.22. It is likely that some small entities file Center assignment appeals, though the exact number is unknown. Regardless of the number of small entities impacted by this requirement, CBP does not believe that a cost of $26.11 to file a Center assignment appeal amounts to a “significant” level to these entities.

Under previous, pre-Centers regulations, CBP mandated CBP-accredited laboratories and CBP-approved gaugers to contact the port director and Executive Director of Laboratories and Scientific Services on the matters previously described in 19 CFR 151.12(c)(5) and (6), and 19 CFR 151.13(b)(5) and (6). Given that CBP did not receive any such notifications in the past 20 years, CBP assumes that this rule's added requirement to contact a Center director per amended 19 CFR 151.12(c)(5) and (6), and 19 CFR 151.13(b)(5) and (6), will continue to not impact a substantial number of small entities. In the event that a CBP-accredited laboratory or CBP-approved gauger considered “small” has to notify an additional CBP representative according to these regulatory changes, CBP does not believe that requiring one more telephone call, letter, or email will have a significant economic impact on the entity.

Besides costs, importers and brokers experience benefits from this rule, though the value of these benefits is unknown due to data limitations. The trade community likely benefits from the Centers rule's uniform post-release processing and decision-making, increased agency knowledge of industry practices and products, and improved communication with CBP, based on observations from the Centers test and Centers IFR. CBP expects the Centers' uniform post-release processing and trade-related determinations to decrease administrative burdens on the trade, resulting in time and cost savings. This uniformity may also enhance the trade community's awareness of CBP's position on trade compliance issues, which may improve compliance and generate an unknown amount of subsequent savings to trade members in the future. The Centers' strengthened industry focus likely enhances CBP relations with the trade community, facilitates trade, and results in an improved ability to identify high-risk commercial importations that could increase import safety, increase revenue protection, and reduce economic loss associated with trade violations. By replacing port-by-port communication with communication with one Center, the Centers serve as a single source of information for trade members regarding such subjects as importing requirements, IPR or other trade violation reports, merchandise holds, and PGA issues. This sole communication source eliminates the need for members of the trade community to contact multiple CBP resources, potentially producing additional time and cost savings. The Centers also allow for enhanced communication between CBP and the trade community by offering extended hours of service compared to port of entry service hours, which may expedite trade. Despite their unknown value, CBP notes that the economic impact of these changes on small entities, if any, is entirely beneficial. Although this rule affects a substantial number of small entities, CBP does not believe that the economic impact of this rule on small entities is significant. Accordingly, CBP certifies that this regulation does not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that CBP consider the impact of paperwork and other information collection burdens imposed on the public. As this document does not involve any collections of information under the Act, the provisions of the Act are inapplicable.

This document is being issued in accordance with 19 CFR 0.2(a), which provides that the authority of the Secretary of the Treasury with respect to CBP regulations that are not related to customs revenue functions was transferred to the Secretary of DHS pursuant to section 403(1) of the Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2178, 6 U.S.C. 203(1)). Accordingly, this final rule adopting the interim amendments to such regulations as final may be signed by the Secretary of DHS (or his delegate).

For the reasons given above, the Centers IFR amending parts 4, 7, 10, 11, 12, 24, 54, 101, 102, 103, 113, 132, 133, 134, 141, 142, 143, 144, 145, 146, 147, 151, 152, 158, 159, 161, 162, 163, 173, 174, 176, and 181 of title 19 of the Code of Federal Regulations (19 CFR parts 4, 7, 10-12, 24, 54, 101-103, 113, 132-134, 141-147, 151, 152, 158, 159, 161-163, 173, 174, 176, and 181), which was published in the Federal Register at 81 FR 92978 on December 20, 2016 (CBP Dec. 16-26), as amended by the technical correction published in the Federal Register at 84 FR 46676 on September 5, 2019 (CBP Dec. 19-11), is adopted as a final rule, without change.

For the last several years, the Coast Guard has sought to better align the names of its assets to correspond to the area of responsibility which they serve. Review of the missions and engagements within the southeastern Alaska region highlighted that “Sector Juneau” alone did not adequately capture the breadth and range of Coast Guard operations and relationships throughout southeast Alaska. The Coast Guard has approved the name change to U.S. Coast Guard Sector Southeast Alaska to acknowledge the long-standing commitment to all communities of southeast Alaska and to reaffirm the multi-mission support that the Coast Guard provides to ensure safety at sea and enhanced maritime governance. The geographic boundaries of Sector Southeast Alaska are not changing, and its office is not moving from Juneau, AK.

We did not publish a notice of proposed rulemaking (NPRM) before this final rule. The Coast Guard finds that this rule is exempt from notice and comment rulemaking requirements under 5 U.S.C. 553(b)(A) because the changes it makes are conforming amendments involving agency organization. The Coast Guard also finds good cause exists under 5 U.S.C. 553(b)(B) for not publishing an NPRM because the changes will have no substantive effect on the public and notice and comment are therefore unnecessary. For the same reasons, the Coast Guard finds good cause exists under 5 U.S.C. 553(d)(3) to make the rule effective fewer than 30 days after publication in the Federal Register .

The Coast Guard is issuing this rule under authority in 14 U.S.C. 504(a)(2), as delegated at 33 CFR 1.05-1(h), to issue regulations necessary to implement technical, organizational, and conforming amendments and corrections to rules, regulations, and notices.

On July 17, 2023, the Coast Guard issued Operating Facility Change Order (OFCO) No. 020-23 which changed the official unit name of U.S. Coast Guard Sector Juneau to U.S. Coast Guard Sector Southeast Alaska. The previous name of Sector Juneau is described and reflected in regulations, which also contain contact details and other references to Sector Juneau. These conforming amendments update those regulations so that they contain current information.

Under 14 U.S.C. 504(a)(2), the Commandant of the Coast Guard has the authority to establish and prescribe the purpose of Coast Guard Shore establishments. This authority has been delegated to the Chief of the Coast Guard's Office of Regulations and Administrative Law under 33 CFR 1.05-1(h).

OFCO No. 020-23, issued July 17, 2023, changed the official unit name of U.S. Coast Guard Sector Juneau to U.S. Coast Guard Sector Southeast Alaska. The July 2023 OFCO did not change the area of responsibility (AOR). The AOR of U.S. Coast Guard Sector Southeast Alaska is identical to that of what was U.S. Coast Guard Sector Juneau. All authorities and responsibilities previously assigned to Commander, U.S. Coast Guard Sector Juneau have been assigned to Commander, U.S. Coast Guard Sector Southeast Alaska. Additionally, all authorities that were vested in the Commander, U.S. Coast Guard Sector Juneau as it pertains to the COTP, the OCMI, the Federal On Scene Coordinator, the Federal Maritime Security Coordinator, and the Search and Rescue Coordinator, have been assigned to Commander, U.S. Coast Guard Sector Southeast Alaska. This rule does not change any sector, OCMI, or COTP zone boundary lines, nor does it have any substantive impact on existing regulated navigation area, safety zone, or security zone regulation, or any naval vessel protection zones.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the finding that the name change will have no substantive effect on the public.

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

For the reasons stated in section V.A. above, this rule will not have a significant economic impact on any member of the public, including “small entities.”

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule consists only of an organizational amendment. It is categorically excluded from further review under paragraph L3 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1, Implementation of the National Environmental Policy Act.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 3, 162 and 165 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsors did not notify the Coast Guard of the event in time to allow for a notice and comment period without delaying promulgation of the rule. It would be impracticable and contrary to the public interest to delay the establishment on this safety zone to publish an NPRM because doing so would prevent us from addressing the potential safety hazards associated with the fireworks display. Potential safety hazards include the accidental discharge of fireworks, dangerous projectiles and falling hot embers or other debris.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the fireworks display.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port, Sector Maryland-National Capital Region (COTP) has determined that potential hazards associated with the fireworks to be used in this October 5, 2023, display will be a safety concern for anyone near the fireworks discharge sites. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone before, during, and after the scheduled event.

The COTP is establishing a safety zone from 7:30 p.m. to 9:30 p.m. on October 5, 2023. The safety zone would cover all navigable waters of the Potomac River within 500 feet of a fireworks barge in approximate position latitude 38°53′43.13″ N, latitude 77°03′30.62″ W, located near the John F. Kennedy Center for Performing Arts in Washington, DC. The size of the zone and the duration of the rule are intended to protect personnel, vessels, and the marine environment in these navigable waters before, during, and after the scheduled fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, duration, and time-of-day of the safety zone, which will impact a small, designated area of the Potomac River for no more than two hours of total enforcement—hours during the evening, when vessel traffic is normally low. Moreover, the Coast Guard will issue a Local Notice to Mariners and a Broadcast Notice to Mariners via VHF-FM marine channel 16, to inform them about the safety zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 2 hours that will prohibit entry within 500 feet of a barge within a portion of the Potomac River. It is categorically excluded from further review under paragraph L63(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

On May 31, 2023, the Mechanical Licensing Collective (MLC) and the Digital Licensee Coordinator (DLC) filed a Joint Petition to Commence Proceeding to Adjust Administrative Assessment by Adoption of a Voluntary Agreement (Petition) and a Joint Motion to Adopt Voluntary Agreement and Proposed Regulations (Voluntary Agreement). By notice published in the Federal Register the Copyright Royalty Judges (Judges) commenced the captioned proceeding to determine an adjustment to the administrative assessment that digital music providers and any significant nonblanket licensees must pay to fund the operations of the Mechanical Licensing Collective. 88 FR 42396 (June 30, 2023) (Notice of Commencement). The Notice of Commencement included a request for petitions to participate and a schedule for submissions and proceedings.

Only two parties filed Petitions to Participate: the Mechanical Licensing Collective and the Digital Licensee Coordinator; participation in this proceeding was required by the two Petitioners. The Judges gave notice of the identity of petitioners as required by 37 CFR 355.2(f) and, in light of the Voluntary Agreement, suspended the case schedule. See Notice of Identity of Petitioners and Case Scheduling Order (July 18, 2023).

Section 115(d)(7)(D)(v) of the Copyright Act authorizes the Judges to approve and adopt a negotiated agreement that has been agreed to by the Mechanical Licensing Collective and the Digital Licensee Coordinator in lieu of a determination of the administrative assessment. An administrative assessment adopted under sec. 115(d)(7)(D)(v) “shall apply to all digital music providers and significant nonblanket licensees engaged in covered activities during the period the administrative assessment is in effect.” Id.

However, the Judges, in their discretion, may reject a proposed settlement for good cause shown. 17 U.S.C. 115(d)(7)(D)(v) and 37 CFR 355.6(d). Section 355.4(c)(4) of 37 CFR establishes a process for non-settling participants to comment on a proposed settlement and for the settling participants to respond. Because there were no non-settling participants in the instant proceeding, the proposed settlement was unopposed. Moreover, the participants explained to the Judges' satisfaction how the Proposed Regulations comply with the provisions of the Copyright Act. See generally Voluntary Agreement. The Judges, finding no cause to reject the proposed settlement embodied in the Voluntary Agreement, hereby adopt it, and publish these final regulations implementing the settlement.

For the reasons set forth in the preamble, the Copyright Royalty Judges amend 37 CFR part 390 as follows:

I. General Information A. Does this action apply to me?

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at https://www.ecfr.gov/current/title-40. To access the OCSPP test guidelines referenced in this document electronically, please go to https://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0269 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 December 4, 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-2021-0269, 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/contacts.html.

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

In the Federal Register of June 28, 2021 (86 FR 33922) (FRL-10025-08), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 1F8900) by GreenLight Biosciences, Inc., 200 Boston Ave., Suite 1000, Medford, MA 02155. The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of Ledprona dsRNA in or on all agricultural commodities and food products. That document referenced a summary of the petition prepared by the petitioner GreenLight Biosciences, Inc., which is available in the docket, https://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition and in accordance with its authority under FFDCA section 408(d)(4)(A)(i), EPA is establishing a tolerance exemption for residues of Ledprona dsRNA in or on potato only, rather than all agricultural commodities and food products as requested. The reasons for this change are explained in Unit III.C.

In addition, EPA previously established a temporary tolerance exemption for residues of Ledprona dsRNA in or on potato (40 CFR 180.1403; 88 FR 28427) in conjunction with Experimental Use Permit (EUP) No. 94614-EUP-1 issued to GreenLight BioSciences, Inc. in May 2023. The temporary tolerance exemption expires on April 30, 2025. Because this action establishes a permanent tolerance exemption for residues of Ledprona dsRNA in or on potato, EPA is removing the temporary tolerance exemption as no longer necessary.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of 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 it does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C) and (D). FFDCA section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . . ” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider factors including “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability, and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. A full explanation of the data upon which EPA relied and its risk assessment based on those data can be found within the document entitled “Final human health risk assessment, review of product characterization and manufacturing process for the new end-use product, Calantha TM , containing 0.8% of the new active ingredient “Ledprona” dsRNA” (Human Health Risk Assessment). This document, as well as other relevant information, is available in the docket for this action at docket ID number EPA-HQ-OPP-2021-0269.

Ledprona (CAS# 2433753-68-3) consists of double-stranded ribonucleic acid (dsRNA) that induces mortality of the Colorado potato beetle ( Leptinotarsa decemlineata ) via a gene silencing mode of action. When dsRNA is applied, it causes the inhibition (or silencing) of the gene product, messenger RNA (mRNA), preventing the translation of the mRNA to proteins. Ledprona dsRNA targets the Proteasome subunit beta type-5 (PSMB5) mRNA sequence in the Colorado potato beetle. PSMB5 mRNA encodes a protein that regulates proper folding of other proteins in the Colorado potato beetle. Once Ledprona is ingested by the Colorado potato beetle, over time the lack of PSMB5 mRNA leads to the reduction of the PSMB5 protein and ultimately causes mortality.

Available data and scientific information have demonstrated that, with regard to humans, Ledprona presents no adverse effects of concern and exposure to the active ingredient will be insignificant. Dietary and drinking water exposure resulting from the proposed use is expected to be minimal due to the following factors: (1) the application rate is low (0.53 oz/acre/calendar year); (2) residues of Ledprona dsRNA on food will be limited, as Ledprona dsRNA is a foliar insecticide and is expected to undergo rapid degradation due to microbes in the environment once applied; (3) mammals possess physiological barriers to dsRNA uptake ( i.e., nucleases in saliva and the gastrointestinal tract, acidic conditions in the stomach, and presence of multiple membrane barriers); and (4) Ledprona dsRNA degrades rapidly in simulated gastric and intestinal fluids, including when combined with certain tank mix components ( i.e., fungicides and insecticides commonly used on potatoes). This information allows EPA to rely on a well-established history of exposure to RNA molecules via food and supports the conclusion that dietary exposure from the use of the active ingredient will be negligible.

With respect to dietary and drinking water hazards, submitted data demonstrate that Ledprona dsRNA is expected to pose minimal hazard. Ledprona dsRNA was found to have low toxicity via the oral route of exposure (EPA Toxicity Category IV). In addition, a bioinformatic analysis was conducted to evaluate the likelihood of off-target effects of the Ledprona dsRNA in humans in silico ( i.e., by computer analysis of Ledprona RNA segments). This analysis identified two potential human transcripts as “off targets.” However, further analyses of these transcripts coupled with the specificity of Ledprona dsRNA to its target indicate that Ledprona is not expected to affect these genes in vivo, resulting in negligible hazard.

Ledprona is not proposed for residential use and therefore a residential exposure assessment was not conducted. For non-occupational exposure, bystander exposure may occur post-application ( i.e., contact with treated foliage or through spray drift of nearby treated areas). Due to the low application rate coupled with spray drift advisories and restrictions on product labels, exposure via contact with treated foliage and spray drift is considered to be negligible. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” No risk of cumulative toxicity/effects from Ledprona dsRNA has been identified as no toxicity has been shown for Ledprona dsRNA in the submitted studies. Therefore, EPA has not assumed that Ledprona dsRNA has a common mechanism of toxicity with other substances. Although FFDCA section 408(b)(2)(C) provides for an additional tenfold margin of safety for infants and children in the case of threshold effects, EPA has determined that there are no such effects due to the lack of toxicity of Ledprona dsRNA. As a result, an additional margin of safety for the protection of infants and children is unnecessary.

Based upon the evaluation described above and in the Human Health Risk Assessment, EPA concludes that there is reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Ledprona dsRNA. This includes all anticipated dietary exposures and all other exposures for which there is reliable information. The Agency has arrived at this conclusion based on the rapid degradation of the active ingredient in environmental and biological conditions, mammalian physiological barriers limiting the uptake of dsRNA, and the lack of effects observed in toxicity testing.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

The petitioner requested that EPA establish a permanent tolerance exemption for residues of Ledprona dsRNA in or on all agricultural commodities and food products. EPA previously established a temporary tolerance exemption for residues of Ledprona dsRNA in or on potato in conjunction with EUP No. 94614-EUP-1. The exposure analysis and evaluation of additional data to establish this permanent tolerance exemption is based in part upon the specificity of Ledprona dsRNA to its target organism, the Colorado potato beetle, and the proposed use of Ledprona dsRNA on potatoes. No other use of Ledprona dsRNA on other agricultural commodities or food products has been proposed. As a result, EPA has not assessed whether use of Ledprona dsRNA on commodities other than potatoes would result in the same dietary exposures described in the current evaluation. Consequently, the permanent tolerance exemption for Ledprona dsRNA residues that EPA is granting in this action varies from what the petitioner sought and is limited to residues of Ledprona dsRNA in or on potato when used as a foliar-applied insecticide for the selective control of Colorado potato beetle and in accordance with label directions and good agricultural practices.

Based on the conclusions detailed in Unit III.A. and the Human Health Risk Assessment, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Ledprona dsRNA. Therefore, an exemption is established for residues of Ledprona dsRNA in or on potato when used as a foliar-applied insecticide for the selective control of Colorado potato beetle and in accordance with label directions and good agricultural practices. In addition, EPA is replacing the previously established temporary tolerance exemption for Ledprona dsRNA (40 CFR 180.1403) with this permanent tolerance exemption.

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

This action is exempt from review by the Office of Management and Budget (OMB) under Executive Orders 12866, October 4, 1993 (58 FR 51735), as amended by Executive Order 14094 (88 FR 21879, April 11, 2023), because it establishes or modifies a pesticide tolerance or a tolerance exemption under FFDCA section 408, and also applies to tolerance revocations for which extraordinary circumstances do not exist.

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

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. In making this determination, EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities and that the Agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities because the rule has no net burden on small entities subject to the rule.

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

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

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

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not a significant regulatory action under section 3(f)(1) of Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. However, EPA's Policy on Children's Health applies to this action.

This rule finalizes a tolerance action under the FFDCA, which requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .” (FFDCA 408(b)(2)(C)). Consistent with FFDCA section 408(b)(2)(D), and the factors specified therein, EPA has reviewed the available scientific data and other relevant information in support of this final tolerance action.

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

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

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

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

Therefore, for the reasons stated in the preamble, 40 CFR chapter I is amended as follows:

I. Background

In 1975, the NTSB adopted an official seal as authorized by the Independent Safety Board Act of 1974 (Act), and codified the seal in part 803 of its regulations titled “Official Seal.” 40 FR 30232 (July 17, 1975). The adoption at that time marked the NTSB's status as an independent Federal agency. 43 FR 36454 (Aug. 17, 1978). The original seal design was that of a triskelion, which was later replaced by the American bald eagle as set forth in the NTSB's final rule. 43 FR 36454. The NTSB explained that the eagle was “adopted in the interest of ready recognition of the Board's status as an independent agency of the Federal Government charged with the investigation of transportation accidents.” Id. The agency continued, “it is imperative that Board officials be readily recognized as agents of the U.S. Government . . . .” Id.

Over thirty years later, the NTSB published its Plan for Retrospective Analysis of Existing Rules per two Executive orders that altogether advised agencies to conduct such an analysis. 77 FR 37865, 37866 (June 25, 2012). After reviewing public comments, the NTSB subsequently announced its plan to update the agency's regulations, which included part 803. 78 FR 1193 (Jan. 8, 2013). However, in the final rule, the NTSB ultimately amended certain sections of part 803, but did not revise the description of the seal found in § 803.1. See 81 FR 75729 (Nov. 1, 2016). Thus, the NTSB's current seal has been in effect for more than 40 years.

On July 6, 2023, the agency issued an NPRM announcing its intent to amend its regulatory description of the NTSB's seal by updating the regulation and codifying current agency practice. 88 FR 43070 (July 6, 2023). The NTSB received no comments to date and is issuing this final rule as a result.

Since the last revision of § 803.1 in August 1978, the NTSB has utilized various versions of the seal within the agency. For consistency, the NTSB is codifying what has evolved as standard agency practice. This change to update § 803.1 focuses on additional options for background colors and will provide a revised graphical representation of the seal.

While respecting the current NTSB seal, the agency is slightly modifying the design to make the seal digitally applicable. For example, the digital version of the current seal alters in appearance when applied to the NTSB uniform; specifically, the current font changes when the seal is affixed to clothing. Thus, the update to the design optimizes the seal, making it compatible with digital platforms.

Over the years, various versions of the seal have been recognized within the agency, but have never been codified; that recognition is now reflected in this final rule. The agency clarifies that when the full color seal is used in print or digital media, the seal must be in a white circle. When the full color seal is embroidered on the official NTSB uniform, the seal's background color must be that of the material of the uniform.

Also, this final rule updates the regulatory description to reflect modern times. The NTSB will now use gender-neutral language to refer to the eagle. Further, the agency will replace the Latin terms “dexter” and “sinister” with “right” and “left”, respectively.

Additionally, the minor alteration of the NTSB's eagle will be more consistent with the Federal Government's official American eagle. The inscriptions encircling the NTSB's eagle—“E Pluribus Unum” and “National Transportation Safety Board”—will be updated from Serif font to Sans Serif font.

A side-by-side comparison of the NTSB's current and updated versions of the seals appears below, respectively:

In 2022, the NTSB made organizational changes to its Office of the Administration, which the agency renamed as the Office of Human Capital Management and Training (HCT). The head of HCT is the Chief Human Capital Officer, who now has custody and control of the seal. Accordingly, due to this reorganization, the NTSB is including non-substantive technical amendments throughout part 803 to reflect the change in the agency's office designation. Thus, the agency is revising all references to the “Director, Office of Administration” with “Chief Human Capital Officer” in §§ 803.3 and 803.5.

Additionally, the agency is correcting a typographical error reflected in the zip code of the NTSB's mailing address.

Because the NTSB is an independent agency, this final rule does not require an assessment of its potential costs and benefits under section 6(a)(3) of Executive Order (E.O.) 12866, Regulatory Planning and Review, 58 FR 51735 (Sept. 30, 1993). In addition, the NTSB has considered whether this final rule would have a significant economic impact on a substantial number of small entities, under the Regulatory Flexibility Act (5 U.S.C. 601-612). The NTSB certifies under 5 U.S.C. 605(b) that this final rule would not have a significant economic impact on a substantial number of small entities.

The NTSB does not anticipate this final rule will have a substantial, direct effect on state or local governments or will preempt state law; as such, this final rule does not have implications for federalism under E.O. 13132, Federalism, 64 FR 43255 (Aug. 4, 1999).

This final rule complies with all applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, 61 FR 4729 (Feb. 5, 1996), to minimize litigation, eliminate ambiguity, and reduce burden. The NTSB has evaluated this final rule under: E.O. 12630, Government Actions and Interference with Constitutionally Protected Property Rights; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629 (Feb. 16, 1994); E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks, 62 FR 19885 (Apr. 21, 1997); E.O. 13175, Consultation and Coordination with Indian Tribal Governments, 65 FR 67249 (Nov. 6, 2000); E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355 (May 18, 2001); and the National Environmental Policy Act, 42 U.S.C. 4321-47. Pursuant to the Paperwork Reduction Act, the NTSB has determined that there is no new requirement for information collection associated with this final rule. The NTSB has concluded that this final rule neither violates nor requires further consideration under those orders, statutes, E.O.s, and acts.

Accordingly, for the reasons stated in the preamble, the NTSB amends 49 CFR part 803 as follows:

Background

Black-footed ferrets ( Mustela nigripes; ferrets), medium-sized members of the weasel family (Mustelidae), are carnivorous, extremely specialized predators that are highly dependent on prairie dogs ( Cynomys spp.) for food and shelter (Hillman 1968, p. 438; Sheets et al. 1972, entire; Campbell et al. 1987, entire; Forrest et al. 1988, p. 261; Biggins 2006, p. 3). Because ferrets are dependent on prairie dogs in this way, occupied prairie dog habitat is considered synonymous with ferret habitat (USFWS 2019, pp. 5-6). The USFWS listed the ferret as an endangered species in 1967 under the Endangered Species Preservation Act of 1966, which was the predecessor to the current Endangered Species Act (ESA; 16 U.S.C. 1531 et seq. ) (32 FR 4001, March 11, 1967). With the passage of the ESA, we incorporated the ferret into the Lists of Endangered and Threatened Wildlife under the ESA, found at 50 CFR 17.11 (39 FR 1175, January 4, 1974).

The 1982 amendments to the ESA included the addition of section 10(j), which allows for the designation of reintroduced populations of listed species as “experimental populations.” Our implementing regulations for section 10(j) of the ESA are in 50 CFR 17.81. These regulations state that the USFWS may designate as an experimental population a population of endangered or threatened species that we will release into habitat that is capable of supporting the experimental population outside the species' current range. Hereafter in this document, we refer to a species-specific rule issued under section 10(j) of the ESA as a “10(j) rule.”

On June 25, 2021, we published a proposed rule to expand the existing Aubrey Valley Experimental Population Area (AVEPA) to encompass a larger area, the “Southwest Experimental Population Area” (SWEPA), which includes parts of Arizona and identified contiguous Tribal lands in New Mexico and Utah (86 FR 33613). The proposed rule provided a framework for establishing and managing reintroduced populations of ferrets in this area that will allow for greater management flexibility and increased landowner cooperation. The best available data indicate that additional reintroductions of the ferrets into more widely distributed habitat in the proposed SWEPA is feasible and will promote the conservation of the species.

We sought comments on the proposed rule and on a draft environmental assessment of the potential environmental impacts of the proposed rule until August 24, 2021. We received 20 comment submissions by that date. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270, July 1, 1994), and our August 22, 2016, memorandum updating and clarifying the role of peer review, we also sought the expert opinion of six appropriate independent specialists regarding the scientific data and interpretations contained in the proposed rule. The purpose of such peer review is to ensure that we base our decisions on scientifically sound data, assumptions, and analyses. This final rule incorporates, and addresses comments received during the public comment and peer review processes.

Under 50 CFR 17.81(b), before authorizing the release as an experimental population of any population of an endangered or threatened species, the USFWS must find by regulation that such release will further the conservation of the species. In making such a finding, the USFWS shall use the best scientific and commercial data available to consider:

(1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere (see “ Possible Adverse Effects on Wild and Captive-Breeding Populations ” below);

(2) The likelihood that any such experimental population will become established and survive in the foreseeable future (see “ Likelihood of Population Establishment and Survival ” below);

(3) The relative effects that establishment of an experimental population will have on the recovery of the species (see “ Effects of the SWEPA on Recovery Efforts for the Species ” below);

(4) The extent to which the introduced population may be affected by existing or anticipated Federal, Tribal, or State actions or private activities within or adjacent to the experimental population area (see “ Actions and Activities that May Affect the Introduced Population ” below); and

(5) When an experimental population is being established outside of its historical range, any possible adverse effects to the ecosystem that may result from the experimental population being established.

Furthermore, under 50 CFR 17.81(c), any regulation designating experimental populations under section 10(j) of the ESA shall provide:

(1) Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location, actual or anticipated migration, number of specimens released or to be released, and other criteria appropriate to identify the experimental population(s) (see “ Identifying the Location and Boundaries of the SWEPA ” below);

(2) A finding, based solely on the best scientific and commercial data available, and the supporting factual basis, on whether the experimental population is, or is not, essential to the continued existence of the species in the wild (see “ Is the Experimental Population Essential or Nonessential? ” below);

(3) Management restrictions, protective measures, or other special management concerns of that population, which may include but are not limited to, measures to isolate, remove, and/or contain the experimental population designated in the regulation from nonexperimental populations (see “ Management Restrictions, Protective Measures, and Other Special Management ” below); and

(4) A process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species (see “ Review and Evaluation of the Success or Failure of the SWEPA ” below).

Under 50 CFR 17.81(e), the USFWS consults with appropriate State fish and wildlife agencies, affected Tribal governments, local governmental entities, affected Federal agencies, and affected private landowners in developing and implementing experimental population rules. To the maximum extent practicable, 10(j) rules represent an agreement between the USFWS, affected Tribal governments, State and Federal agencies, local governments, and persons holding any interest in land or water that may be affected by the establishment of an experimental population.

Under 50 CFR 17.81(f), the Secretary may designate critical habitat as defined in section 3(5)(A) of the ESA for an essential experimental population. The Secretary will not designate critical habitat for nonessential populations. The term essential experimental population means an experimental population the loss of which would be likely to appreciably reduce the likelihood of the survival of the species in the wild. We classify all other experimental populations as nonessential (50 CFR 17.80).

Under 50 CFR 17.82, we treat any population determined by the Secretary to be an experimental population as if we had listed it as a threatened species for the purposes of establishing protective regulations with respect to that population. The protective regulations adopted for an experimental population will contain applicable prohibitions, as appropriate, and exceptions for that population, allowing us discretion in devising management programs to provide for the conservation of the species.

Under 50 CFR 17.83(a), for the purposes of section 7 of the ESA, we treat nonessential experimental populations as threatened when located in a National Wildlife Refuge or unit of the National Park Service (NPS), and Federal agencies follow conservation and consultation requirements per paragraphs 7(a)(1) and 7(a)(2) of the ESA, respectively. We treat nonessential experimental populations outside of a National Wildlife Refuge or NPS unit as species proposed for listing, and Federal agencies follow the provisions of paragraphs 7(a)(1) and 7(a)(4) of the ESA. In these cases, nonessential experimental population designation provides additional flexibility, because it does not require Federal agencies to consult under section 7(a)(2). Instead, section 7(a)(4) requires Federal agencies to confer (not consult) with the USFWS on actions that are likely to jeopardize the continued existence of a species proposed to be listed. A conference results in conservation recommendations, which are discretionary. Because the nonessential experimental population is, by definition, not essential to the continued existence of the species in the wild, the effects of proposed actions on the population will generally not rise to the level of “jeopardy.” As a result, Federal agencies will likely never request a formal conference for actions that may affect ferrets established in the SWEPA. Nonetheless, some Federal agencies voluntarily confer with the USFWS on actions that may affect a species proposed for listing.

We listed the ferret as an endangered species in 1967 under the Endangered Species Preservation Act of 1966 (32 FR 4001, March 11, 1967). We later codified this list in part 17 of title 50 in the U.S. Code of Federal Regulations (CFR) (35 FR 16047, October 13, 1970). With the passage of the ESA in 1973 (16 U.S.C. 1531 et seq. ), we incorporated those species previously listed in the CFR into the Lists of Endangered and Threatened Wildlife and Plants under the ESA, found at 50 CFR 17.11 and 17.12 (39 FR 1175, January 4, 1974).

In 1996, we designated the population of ferrets established via reintroduction in Aubrey Valley as a nonessential experimental population (61 FR 11320, March 20, 1996). The AVEPA includes parts of Coconino, Mohave, and Yavapai Counties in northwestern Arizona. At the time of its designation, the AVEPA consisted of 22 percent State lands, 45 percent lands of the Hualapai Tribal Nation, and 33 percent deeded lands owned by the Navajo Nation.

We treated ferrets as an endangered species outside the AVEPA, and the provisions and exceptions of the experimental population designation did not apply. In 2013, the USFWS developed a rangewide programmatic Safe Harbor Agreement (SHA) to encourage non-Federal landowners to voluntarily undertake conservation activities on their properties to benefit the ferret (USFWS 2013b, entire) (see “ Historical Range ” below). Through certificates of inclusion, we enrolled willing landowners in our SHA through enhancement of survival permits issued under section 10(a)(1)(A) of the ESA. Through the SHA, incidental take of ferrets outside of the AVEPA by participating landowners and nonparticipating neighboring landowners was permissible.

Under state law, general provisions of Arizona Revised Statutes, title 17, protect all of Arizona's native wildlife, including federally listed threatened and endangered species. Under Navajo Nation law, it is unlawful for any person to take ferrets. All wildlife on the Hopi Reservation is the property of the Hopi Tribe, and Hopi Tribal law provides for take (see “Management Restrictions, Protective Measures, and Other Special Management” below, for more information on State and Tribal legal status).

The ferret is a medium-sized member of the weasel family (Mustelidae) weighing approximately 1.4 to 2.5 pounds (645 to 1125 grams) and measuring approximately 19 to 24 inches (480 to 600 millimeters) in total length. Its body color includes yellowish-buff, occasionally whitish, upper parts, and black feet, tail tip, and “mask” across the eyes (Hillman and Clark 1980, p. 1; Anderson et al. 1986, pp. 15-16).

Ferrets are carnivorous, extremely specialized predators highly dependent on prairie dogs ( Cynomys spp.) (Hillman 1968, p. 438; Biggins 2006, p. 3). Ferrets prey predominantly on prairie dogs (Sheets et al. 1972, entire; Campbell et al. 1987, entire), occupy prairie dog burrows, and do not dig their own burrows (Forrest et al. 1988, p. 261). Ferrets select areas within prairie dog colonies that contain high burrow densities and thus high densities of prairie dogs (Biggins et al. 2006, p. 136; Eads et al. 2011, p. 763; Jachowski et al. 2011a, pp. 221-223; Livieri and Anderson 2012, pp. 201-202). Given their obligate tie to prairie dogs, ferret populations associated with larger, highly connected prairie dog colonies are more likely to be resilient and less likely to be extirpated by stochastic events compared to those associated with smaller, isolated colonies (Miller et al. 1994, p. 678; Jachowski et al. 2011b, entire). Resiliency is the ability of populations to tolerate natural, annual variation in their environment and to recover from periodic or random disturbances (USFWS 2019, p. 2). Such stochastic events include epizootics, such as sylvatic plague (plague), and extreme weather or climate, including drought.

The last naturally occurring wild ferret population, in Wyoming, averaged approximately 25 breeding adults throughout intensive demographic studies from 1982 to 1985 (USFWS 2019, p. 10). Based on this and population modeling, the USFWS considers 30 breeding adults a minimum for a population of ferrets to be self-sustaining (USFWS 2013a, p. 70). Ferrets require large, contiguous prairie dog colonies to meet their individual needs, with colonies no more than approximately 4.35 miles (7 kilometers [km]) apart (Biggins et al. 1993, p. 78). A conservative estimate of habitat requirements to support one female ferret is 222 acres (ac) (90 hectares [ha]) of black-tailed prairie dog ( C. ludovicianus ) colonies, or 370 ac (150 ha) of Gunnison's prairie dog ( C. gunnisoni ) colonies (USFWS 2013a, p. 73). Assuming a two-to-one female-to-male sex ratio and overlapping male and female home ranges (Biggins et al. 1993, p. 76), we estimate that a population of 30 breeding adult ferrets may require 4,450 ac (1,800 ha) of black-tailed prairie dog colonies, or approximately 7,415 ac (3,001 ha) of Gunnison's prairie dog colonies (USFWS 2013a, p. 74).

Natal dispersal, defined as a permanent movement away from the birth area, occurs in the fall months among the young-of-the-year, although adults occasionally make permanent moves (Forrest et al. 1988, p. 268). Newly released captive-born ferrets have dispersed up to approximately 30 miles (48 km) (Biggins et al. 1999, p. 125), and wild-born ferrets more than approximately 12 miles (19 km) (USFWS 2019, p. 7). Males tend to move greater distances than females.

The black-footed ferret is the only ferret species native to the Americas (Anderson et al. 1986, p. 24). Before European settlement, ferret occurrence coincided with the ranges of three prairie dog species (black-tailed, white-tailed [ C. leucurus ], and Gunnison's), which collectively covered about 100 million ac (40.5 million ha) of Great Plains, mountain basins, and semi-arid grasslands extending from Canada to Mexico (Anderson et al. 1986, pp. 25-50; Biggins et al. 1997, p. 420). This amount of habitat could have supported 500,000 to one million ferrets (Anderson et al. 1986, p. 58). We have records of ferret specimens from Arizona, Colorado, Kansas, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah, and Wyoming in the United States and from Saskatchewan and Alberta in Canada (Anderson et al. 1986, pp. 25-50). Ferrets likely additionally occurred in Mexico, based on the proximity of a specimen to Mexico, fossil records, and prairie dog distribution (USFWS 2019, p. 42). A rancher discovered the last wild population of ferrets (from which all existing ferrets descend) near Meeteetse, Wyoming, in 1981, after they were presumed extinct (Lockhart et al. 2006, p. 8). By 1987, the USFWS and partners removed all known surviving wild ferrets (18 individuals) from this area to initiate a captive-breeding program following disease outbreaks (Lockhart et al. 2006, p. 8). Since then, no naturally occurring wild populations have been located, despite extensive and intensive rangewide searches; it is unlikely any undiscovered natural wild populations remain. For these reasons, the USFWS considers the ferret to be extant in reintroduced populations and extirpated throughout the rest of its historical range (USFWS 2017, p. 2).

In the Southwest, in Arizona, Colorado, New Mexico, and Utah, ferrets occurred within the historical range of Gunnison's prairie dogs (Hillman and Clark 1980, entire); and in New Mexico, Mexico, and likely southeastern Arizona they occurred within the historical range of black-tailed prairie dogs (Hillman and Clark 1980, entire; Hoffmeister 1986, p. 194). In Arizona, historical ferret collections (1929-1931) come from three locations in Coconino County (Belitsky et al. 1994, p. 29). In 1967, U.S. Department of Agriculture Federal Animal Damage Control personnel (now known as Wildlife Services) reported seeing ferret sign while poisoning prairie dogs (pers. comm. 1993, as cited in Belitsky et al. 1994, p. 2). Anderson et al. (1986, p. 25) speculated that prairie dog populations of sufficient size to support ferrets may have existed in northeastern Arizona on the Navajo Nation; however, the ferret currently is not present in that area (Navajo Nation 2020, n.p.). Prairie dogs currently occur in substantial numbers on Hopi (Johnson et al. 2010, entire) and Hualapai Tribal lands, the latter of which the AVEPA partially overlaps.

Dramatic historical declines in prairie dogs, coupled with prevalence of plague throughout the ferret's historical range, and the failure to locate new wild ferrets, suggests the species is extirpated in Arizona except where it has been reintroduced (USFWS 2017, p. 2). The date of historical ferret extirpation in the Southwest is unknown; in Arizona, we have no verified reports for ferrets from 1931 through 1995, after which we initiated reintroduction efforts in the AVEPA. We consider the historical range of the ferret in Arizona to coincide with the historical ranges of the Gunnison's and black-tailed prairie dogs.

Ferret populations decreased historically for three main reasons. First, major conversion of native range to cropland, primarily in the eastern portion of the species' range, began in the late 1800s. Second, widespread poisoning of prairie dogs to reduce perceived competition with domestic livestock for forage began in the early 1900s. Third, in the 1930s, plague began to appreciably adversely affect both prairie dogs and ferrets (Eskey and Hass 1940, p. 62). By the 1960s, prairie dog occupied habitat reached a low of about 1.4 million ac (570,000 ha) in the United States (Bureau of Sport Fisheries and Wildlife 1961, n.p.). For these reasons, ferret numbers declined to the point of perceived extinction. These threats resulted in a substantial loss of prairie dogs, which led to an even greater decline in ferret populations due to the species' dependence on prairie dog colonies (Lockhart et al. 2006, p. 7). Such population bottlenecks can result in loss of genetic diversity and fitness and can manifest following even a temporary loss of habitat (USFWS 2013a, p. 23).

In Arizona, the combined effects of prairie dog poisoning and plague decreased the area occupied by Gunnison's prairie dogs from about 6.6 million ac (2.7 million ha) historically to about 445,000 ac (180,000 ha) in 1961 (Bureau of Sport Fisheries and Wildlife 1961, n.p.; Oakes 2000, pp. 169-171). Estimates of historical black-tailed prairie dog habitat in Arizona range from 650,000 ac (263,000 ha) to 1,396,000 ac (565,000 ha) (Van Pelt 1999, p. 1; Black-footed Ferret Recovery Foundation 1999, n.p.). Extirpation of black-tailed prairie dogs in Arizona probably occurred around 1960 (Van Pelt 1999, pp. 3-4). As with the rangewide effects, these prairie dog losses also resulted in the loss of ferrets, and by the 1960's, ferrets were considered extirpated in Arizona (Lockhart et al. 2006, pp. 7-8).

Major conversion of native range to cropland eliminated millions of acres of ferret habitat in the eastern portion of the ferret's range, particularly black-tailed prairie dog colonies (USFWS 2013a, p. 23). Land conversion caused far less physical loss of Gunnison's prairie dog habitat, because outside of riparian corridors and proximate irrigated lands, much of the habitat occupied by this species is not suitable for crops (Lockhart et al., 2006, p. 7). Knowles (2002, p. 12) noted displacement of prairie dogs from the more productive valley bottomlands in Colorado and New Mexico, but not in Arizona. Instead of converting native rangeland to irrigated crop and pasture lands, land-use of the range in Arizona was and continues to consist primarily of cattle grazing, with relatively minimal crop development. Cropland conversion in Arizona, while affecting ferrets locally, was not a major cause of decline in the State.

Poisoning was a major cause of the historical declines of prairie dogs and subsequently ferrets (Forrest et al. 1985, p. 3; Cully 1993, p. 38; Forrest and Luchsinger 2005, pp. 115-120). Similar to other threats limiting ferret recovery, poisoning affects ferrets through inadvertent secondary effects, poisoning caused by consumption of poisoned prairie dogs, or indirectly, through the loss of the prairie dog prey base.

In Arizona, from 1916 to 1933, rodent control operations treated 4,365,749 ac (1,766,756 ha) of prairie dog colonies (Oakes 2000, p. 179). A 1961 Predator and Rodent Control Agency report showed a 92 percent decline in occupied prairie dog habitat in Arizona since 1921, with Gunnison's prairie dogs occupying 445,370 ac (180,235 ha). Only 9,956 ac (4,029 ha) of prairie dog colonies in the 1961 surveys were located on non-Tribal lands. The 1961 Predator and Rodent Control Agency report also documented the extirpation of black-tailed prairie dogs from Arizona. This historical prairie dog poisoning was a major cause of decline of ferrets in Arizona.

Sylvatic plague is the most significant challenge to ferret recovery (USFWS 2019, p. 21), with the USFWS classifying it as an imminent threat of high magnitude (USFWS 2020, p. 5). Plague is an exotic disease, caused by the bacterium Yersinia pestis, transmitted by fleas, which steamships inadvertently introduced to North America in 1900. Because it was foreign and unknown to their immune systems, both prairie dogs and ferrets were and continue to be extremely susceptible to mortality from plague (Barnes 1993, entire; Cully 1993, entire; Gage and Kosoy 2006, entire). Plague can be present in a prairie dog colony in an epizootic (swift, large-scale die-offs) or enzootic (persistent, low level of mortality) state. Most of the information we have about the effects of plague is from epizootic events. Although its effects are not as dramatic as an epizootic outbreak, enzootic plague may result in negative growth rates for prairie dog and ferret populations and hinder ferret recovery (USFWS 2013a, pp. 33, 100). Other factors that reduce prairie dog numbers and fitness ( e.g., shooting, poisoning, and drought) increase the flea-to-individual host ratio, and thus may contribute to plague epizootic events (Biggins and Eads 2019, p. 7).

The first confirmation of plague in Gunnison's prairie dogs in Arizona occurred in 1932, but we have limited historical data on the extent of its effects (Wagner and Drickamer 2003, p. 5). In 2003, Wagner et al. (2006, p. 337) reported that in the previous 7 to 15 years, there had been a large reduction in the number of active Gunnison's prairie dog colonies in Arizona, primarily due to outbreaks of plague, which they said was the dominant negative effect on Arizona prairie dog populations. Prairie dogs in northern Arizona will likely continue to experience effects from enzootic plague and epizootic plague outbreaks (Biggins and Eads 2019, pp. 6-8; Wagner et al. 2006, p. 337).

To recover ferrets, purposeful management of prairie dog populations is needed to provide habitat of sufficient quality and in a stable spatial configuration suitable to support and maintain new populations of reintroduced ferrets. Unfortunately, current management efforts for the species are failing to meet these conservation objectives, rangewide (USFWS 2013a, pp. 46, 58, table 6; USFWS 2020 p. 5). The keys to correcting current management inadequacies are active plague management and ongoing widespread partner involvement (USFWS 2013a, pp. 46-48) to facilitate establishment of new ferret reintroduction sites and appropriately manage the quality and configuration of ferret habitat and potential ferret habitat within the species' range.

In addition, consideration of other factors that may act alone or in concert with threats is necessary when planning and implementing recovery efforts. For example, canine distemper, a disease endemic to the United States, posed a challenge to early ferret reintroduction efforts (Wimsatt et al. 2006, pp. 249-250). Today, however, the use of commercial vaccines deployed in captive and wild ferret populations has minimized the threat of catastrophic population losses due to canine distemper (USFWS 2013a, pp. 29-30). As discussed in the Black-Footed Ferret Recovery Plan and Species Status Assessment Report (USFWS 2013a, pp. 53-55; USFWS 2019, pp. 25, 68), we anticipate that climate change will alter and reduce prairie dog habitat and influence plague outbreaks. We also discuss prairie dog shooting and Federal and non-Federal actions and activities in “ Actions and Activities that May Affect the Introduced Population ” below.

The goal of the Black-footed Ferret Recovery Plan (Recovery Plan) is to recover the ferret to the point at which it can be reclassified to threatened status (downlisted) and ultimately removed (delisted) from the List of Endangered and Threatened Wildlife (USFWS 2013a, pp. 5, 59). The strategy of the Recovery Plan is to involve many partners across the historical range of the species in order to establish multiple, widely spaced populations, within the range of all three prairie dog species. Such distribution will safeguard the ferret, as a whole, from the widespread chronic effects of plague as well as other periodic or random disturbances that may result in the loss of a population in one or more given areas. Partner involvement is critical for the development of new reintroduction sites and their long-term management because not only the USFWS, but also our partners, have the authority to manage prairie dogs and prairie dog habitat on respective State, Tribal, Federal, or privately owned lands. Although ferret habitat is substantially decreased relative to historical times, if potential habitat is appropriately managed to support ferret reintroductions, a sufficient amount of habitat remains to support ferret recovery (USFWS 2013a, p. 5). The Recovery Plan provides objective, measurable criteria to achieve downlisting and delisting of the ferret.

Recovery Plan downlisting and delisting criteria include managing a captive-breeding population of at least 280 adults as a source population to establish and supplement free-ranging populations and repopulate sites in the event of local extirpations. Downlisting criteria include establishing at least 1,500 free-ranging breeding adults in 10 or more populations, in at least 6 of 12 States in the species' historical range, with no fewer than 30 breeding adult ferrets in any population, and at least 3 populations in colonies of Gunnison's and white-tailed prairie dogs. Delisting criteria include at least 3,000 free-ranging breeding adults in 30 or more populations, in at least 9 of 12 States in the species' historical range. There should be no fewer than 30 breeding adults in any population, and at least 10 populations with 100 or more breeding adults, and at least 5 populations in Gunnison's and white-tailed prairie dog colonies. We must meet these population objectives for at least 3 years prior to downlisting or delisting. Habitat-related recovery criteria include maintaining 247,000 ac (100,000 ha) of prairie dog colonies at reintroduction sites for downlisting, and 494,000 ac (200,000 ha) for delisting (USFWS 2013a, pp. 61-62).

Additionally, for each State in the historical range of the species, the Recovery Plan includes State-level recovery guidelines proportional to the amount of prairie dog habitat historically present to equitably help support and achieve the overall recovery strategy and criteria (USFWS 2013a, p. 69). Guidelines for Arizona's contribution to downlisting are 74 free-ranging breeding adult ferrets on 17,000 ac (6,880 ha) of Gunnison's prairie dog occupied habitat; delisting guidelines are 148 breeding adults on 34,000 ac (13,760 ha) (USFWS 2013a, table 8). The guidelines for New Mexico and Utah are 220 and 25 breeding adult ferrets for downlisting, respectively, and 440 and 50 breeding adults for delisting; most of these individuals would occur in black-tailed or white-tailed prairie dog habitat.

The USFWS and partners established the ferret captive-breeding program from 18 ferrets captured from the last known wild population at Meeteetse, Wyoming, from 1985 to 1987 (Lockhart et al. 2006, pp. 11-12). Of those 18 ferrets, 15 individuals, representing the genetic equivalent of 7 distinct founders (original genetic contributor, or ancestor), produced a captive population that is the foundation of present recovery efforts (Garelle et al. 2006, p. 4). All extant reintroduced ferrets descended from those seven founders. The purpose of the captive-breeding program is to maintain a secure and stable ferret population with maximum genetic diversity, to provide a sustainable source of ferrets for reintroduction to achieve recovery of the species (USFWS 2013a, pp. 6, 81). The captive-breeding population of ferrets is the primary repository of genetic diversity for the species. There are currently six captive-breeding facilities maintained by the USFWS and its partners: the USFWS National Black-footed Ferret Conservation Center near Wellington, Colorado; the Cheyenne Mountain Zoological Park, Colorado Springs, Colorado; the Louisville Zoological Garden, Louisville, Kentucky; the Smithsonian's National Zoo and Conservation Biology Institute, Virginia; the Phoenix Zoo, Phoenix, Arizona; and the Toronto Zoo, Toronto, Ontario, Canada. The combined population of all 6 facilities is currently about 300 ferrets (USFWS 2020, p. 2).

The USFWS and our partners manage the demography and genetics of the captive population consistent with guidance from the Association of Zoos and Aquariums (AZA) Black-footed Ferret Species Survival Plan (SSP®). This includes maintaining a stable breeding population of at least 280 animals with a high level of genetic diversity and providing a sustainable source of ferrets for reintroduction. The captive-breeding facilities produce about 250 juvenile ferrets annually and have produced about 9,300 ferrets in total (Graves et al. 2018, p. 3; Santymire and Graves 2020, p. 12). The distribution of ferrets across six widespread facilities protects the captive population from catastrophic events. Currently, we retain about 80 juveniles annually in AZA SSP® facilities for continued captive-breeding purposes. We consider the remaining juveniles genetically redundant and excess to the AZA SSP®, and available for reintroductions (USFWS 2013a, p. 81).

Each year the USFWS solicits proposals for allocations of ferrets to establish new reintroduction sites or augment existing sites, or for educational or scientific purposes ( e.g., plague vaccine research). The limited number of ferrets available for release each year requires that we efficiently allocate ferrets to the highest priority sites first (see “ Ferret Allocations ” below for allocation and prioritization protocols). A ranking procedure developed by Jachowski and Lockhart (2009, pp. 59-60) with recent modifications to the factors evaluated and application of weighted values (Black-footed Ferret Recovery Implementation Team 2014, Table 1) is used by the USFWS to guide allocation of ferrets to reintroduction sites. Ranking criteria include project background and justification, involved agencies/parties, habitat conditions, ferret population information, predator management, disease monitoring and management, contingency plans, potential for preconditioning of released ferrets, veterinary and husbandry support, and research contributions. Members of the Black-footed Ferret Recovery Implementation Team review the proposals and the USFWS's rankings of the proposals (USFWS 2013a, pp. 87-88).

Each year, the USFWS allocates 150 to 220 ferrets for reintroduction into the wild from the captive-breeding population; from 1994 to August 2022, we allocated 5,533 ferrets for release rangewide (J. Hughes, USFWS, pers. comm., August 4, 2022). The number of ferrets we allocate to a site depends on site size and prey density (USFWS 2016a, pp. 1, 21). It also depends on purpose and needs; for example, whether the purpose is to initiate establishment of a population or augment a site, which may entail multiple releases in a year. Although a release can involve a single ferret, for initial releases, the USFWS typically recommends releasing up to 20 to 30 individuals (P. Gober, USFWS, pers. comm., March 4, 2018).

To date, the USFWS and partners have reintroduced ferrets at 31 sites in the western United States, Canada, and Mexico. In the United States, we have conducted 11 ferret reintroductions through experimental population designations under section 10(j) of the ESA, 17 under section 10(a)(1)(A), and 1 under section 7 of the ESA (J. Hughes, USFWS, pers. comm., December 13, 2021). Additionally, there has been one reintroduction each in Chihuahua, Mexico, and Saskatchewan, Canada. In our Species Status Assessment Report for the Black-footed Ferret ( Mustela nigripes ) (USFWS 2019, table 11; SSA), we evaluated the current condition of 29 reintroduction sites (2 sites were initiated after we began the SSA). We estimated a wild population of about 340 individuals in those sites, of which 254 occurred on 4 sites (USFWS 2019, table 3). The USFWS determined 2 of the reintroduction sites were in high condition (high resiliency) and 8 were in moderate condition (moderate resiliency) (USFWS 2019, table 11). We estimated 240,173 ac (97,197 ha) of occupied prairie dog habitat on all sites combined (USFWS 2019, p. 45). Currently, 18 sites are considered active; the other 13 sites are considered extirpated, primarily due to plague (J. Hughes, USFWS, pers. comm., December 13, 2021; USFWS 2019, p. 43).

The USFWS and our partners have carried out multiple ferret reintroductions and augmentations in northern Arizona. In 1996, we reintroduced ferrets to the AVEPA in cooperation with the Arizona Game and Fish Department (AZGFD), the Hualapai Tribe, and the Navajo Nation (61 FR 11320, March 20, 1996). The AVEPA was the fifth ferret reintroduction site in the United States and the first reintroduction site in a Gunnison's prairie dog population (USFWS 2013a, figure 1). In 2012, ferrets were observed outside of the AVEPA, including on the adjacent Double O Ranch, presumably dispersing from the AVEPA. We now consider the AVEPA and the Double O Ranch one reintroduction site. In 2012, the number of breeding adults at the Aubrey Valley/Double O Ranch site was 123. Both the number of ferrets at the site and the amount of occupied prairie dog habitat (about 65,500 ac [26,500 ha] in 2018) exceeded the numbers in the Recovery Plan recommended downlisting guidelines for Arizona (USFWS 2013a, table 2, table 8). Since then, substantially fewer ferrets have been documented over several years (AZGFD 2016, p. 3; USFWS 2019, p. 45). The USFWS suspects that enzootic plague may have caused this decline; however, we do not know if the observed trend is cyclical, meaning plague reoccurs from time to time, or linear, meaning that plague is constant through time. Despite lower numbers, we consider the Aubrey Valley/Double O Ranch population to be persistent (J. Hughes, USFWS, pers. comm., December 13, 2021).

In 2007, the USFWS established the Espee Ranch (a.k.a. Allotment) reintroduction site in Arizona under a section 10(a)(1)(A) research and recovery permit in cooperation with Babbitt Ranches, LLC, the U.S. Geological Survey, and AZGFD. The status of the Espee Ranch population is currently unknown but likely extirpated due to plague (AZGFD, unpub. data). The extirpation of the Espee Ranch population and the decline of the Aubrey Valley/Double O Ranch population emphasize the need for additional ferret reintroduction sites in Arizona to guard against stochastic or catastrophic events at any given site.

The Babbitt Ranches, LLC, for the Espee Allotment (the existing Espee Ranch reintroduction site), and Seibert Land Company LLC, for the Double O Ranch, enrolled in the programmatic ferret SHA with the USFWS in 2014 and 2016, respectively. The figure at the end of this rule identifies these SHA lands in the SWEPA. The Aubrey Valley/Double O Ranch reintroduction site contains the only known ferrets currently occurring in the SWEPA.

Researchers continue making advances to address plague, even as it remains the most substantial challenge to ferret recovery. Rocke et al. (2006, entire) developed a vaccine (F1-V) to prevent plague in ferrets; all ferrets provided for reintroduction receive the vaccine (Abbott and Rocke 2012, p. 54). Another vaccine developed is the sylvatic plague vaccine (SPV), which is delivered via treated baits to wild prairie dogs. SPV has been effective in a laboratory setting (Rocke et al. 2010, entire; Abbott and Rocke 2012, pp. 54-55), and a broad-scale experiment to test efficacy in the field found it prevented prairie dog colony collapse where plague epizootics were documented (Rocke et al. 2017, p. 443). A recent study, however, found SPV applied in the field might not provide sufficient protection for prairie dog populations to support a ferret population (Matchett et al. 2021, entire). In addition to vaccines, the powder form of the insecticide deltamethrin is applied at prairie dog burrows to control fleas and manage both enzootic and epizootic plague (Seery et al. 2003, entire; Seery 2006, entire; Matchett et al. 2010, pp. 31-33; USFWS 2013a, p. 101). However, the application of insecticidal dust is costly and labor-intensive, and there are concerns about the development of deltamethrin resistance in fleas. Therefore, the USFWS continues to work with our partners to improve the application and efficacy of the insecticide deltamethrin and to research other pesticides, such as fipronil, a systemic pulicide (insecticide effective on fleas) that is incorporated into grain baits for prairie dog consumption (Poché et al. 2017, entire; Eads et al. 2019, entire; Eads et al. 2021, entire).

Ferret recovery is a dynamic process, requiring long-term active management ( e.g., plague control) and involving reintroduced populations rangewide in various stages of suitability and sustainability—with some populations undergoing extirpation concurrently as others are established or reestablished after extirpation. The AVEPA population illustrates the dynamic nature of ferret recovery and conservation, which at one point exhibited ferrets dispersing outside of the experimental population area but subsequently experienced a substantial population decline, presumably due to plague, in 2013. Therefore, ferret recovery is dependent on the establishment of additional, spatially distributed populations of reintroduced ferrets in Arizona to contribute to species recovery, which establishment of the SWEPA will help to achieve.

We revise and replace the existing nonessential experimental population designation for black-footed ferrets in Arizona (the AVEPA) with the SWEPA, under section 10(j) of the ESA. We base the boundaries of the 40,905,350-ac (16,554,170-ha) SWEPA on the historical range of Gunnison's and black-tailed prairie dogs, which coincides with the presumed historical range of ferrets in Arizona. The only ferrets currently occurring within the SWEPA are within the AVEPA and adjacent areas and constitute a single population. Therefore, the SWEPA, which will encompass the AVEPA, will be wholly geographically separate from other populations (see “ Actual or Anticipated Movements ” below). Currently, scattered throughout the SWEPA there are approximately 358,000 ac (144,880 ha) of prairie dog colonies (H. Hicks, AZGFD, pers. comm., January 26, 2018; Johnson et al., 2010, p. iv) inhabiting about 0.875 percent of the area. The SWEPA encompasses all potential ferret habitat within the boundaries of the State of Arizona, including the Hopi Reservation (excluding Hopi Villages within District 6), the Hualapai Reservation, and the Navajo Nation in its entirety, which includes the Navajo Nation's contiguous areas in New Mexico and Utah (see the figure entitled “Southwest Nonessential Experimental Population Area (SWEPA) for the black-footed ferret” below). Land ownership within the SWEPA includes Federal, private, State, and Tribal lands.

We consider all potential habitat within the SWEPA as possible experimental population reintroduction locations, as we currently lack information about the distribution of habitat to appropriately identify all prospective reintroduction sites. Some portions of the SWEPA may become suitable for ferrets in the future with appropriate management, and ferrets may disperse from successful reintroduction sites as observed previously with the AVEPA. By including all potential habitat within the SWEPA where ferrets may be reintroduced or may disperse, this experimental population designation will extend regulatory flexibility across all areas in which ferrets might occur.

Because potential ferret habitat is, by definition, not yet suitable for ferrets, and the USFWS is not solely responsible for the management of wildlife outside of the National Wildlife Refuge System, we rely on partnerships with landowners or those responsible for wildlife management on their respective lands or based on their legal authorities to contribute to conservation necessary for ferret reintroduction and recovery. As the primary management agency for wildlife in Arizona, excluding Tribal lands, AZGFD's efforts and commitment to prairie dog conservation and management are key in identifying potential ferret reintroduction sites in Arizona. AZGFD developed an Interagency Management Plan for Gunnison's Prairie Dogs in Arizona, with the purpose of identifying and implementing management strategies to conserve Gunnison's prairie dogs (Underwood 2007, p. 24), and a Management Plan for the Black-footed Ferret in Arizona (AZGFD 2016, entire; Management Plan) to further their commitment to meeting the USFWS Recovery Plan guidelines for Arizona (USFWS 2013a, table 2, table 8). The USFWS reviewed and commented on the AZGFD Management Plan, ensuring that it complements the USFWS Black-footed Ferret Recovery Plan by incorporating current research and techniques that the USFWS uses to guide ferret recovery rangewide.

Within the SWEPA, the USFWS anticipates the need for at least five ferret reintroduction sites to buffer against plague or other stochastic or catastrophic events and to reliably meet Recovery Plan guidelines for Arizona in support of the rangewide recovery criteria (USFWS 2022a, n.p.). Currently six areas are considered to be established or potential reintroduction sites. The active Aubrey Valley/Double O Ranch and inactive Espee Ranch, which is being actively managed for prairie dogs, are established reintroduction sites in which future releases may occur. Four potential reintroduction sites have also been identified (see AZGFD 2016 pp. 8-10) and occur on: (1) Kaibab National Forest, Williams/Tusayan Ranger Districts; (2) CO Bar Ranch; (3) Petrified Forest National Park; and (4) Lyman Lake (see “ Identifying the Location and Boundaries of the SWEPA ” below for more information on these sites). These potential reintroduction sites currently lack sufficient prairie dog occupied acreage and require management to improve prairie dog populations before they can support ferrets. The USFWS is working with partners to encourage and implement purposeful prairie dog management and to identify additional potential reintroduction sites within the SWEPA.

The USFWS approves sites for ferret reintroductions and allocates ferrets to those sites through an annual process (see “ Captive Breeding ” above), giving greater consideration to sites that have plague management and monitoring plans (USFWS 2022b, p. 2). To qualify for the annual application and ranking process, States, Tribes, and/or other land managers develop annual site-specific reintroduction plans and submit them to the USFWS by mid-March for consideration. Site-specific reintroduction plans may require implementation of plague management ( e.g., applying Delta Dust® [deltamethrin]) at the proposed reintroduction site, as determined by the USFWS and partners.

The USFWS allocates ferrets to proposed reintroduction sites that contain sufficient prairie dog occupied habitat. The USFWS estimates sufficient prairie dog occupied habitat for Gunnison's prairie dogs as typically equating to 7,415 ac (3,000 ha), and for black-tailed prairie dogs, typically 4,450 ac (1,800 ha); (USFWS 2013a, pp. 73-74; USFWS 2019, p. 10). Our estimates, based in part on data from the Conata Basin/Badlands site in South Dakota, are likely on the high end of ferrets' actual habitat needs (USFWS 2013a, pp. 73-74). The actual amount of prairie dog occupied habitat needed varies across the ferret's range, depending on site conditions such as the density of prairie dogs. In Arizona, available research and prairie dog density data from Aubrey Valley suggests that a minimum of 5,540 ac (2,242 ha) of Gunnison's prairie dog occupied habitat is needed to consider a site potentially suitable for a ferret reintroduction (AZGFD 2016, pp. 6-7, 15). We may adjust our area estimates in the future, if further monitoring suggests that ferrets require a smaller area of habitat than our conservative estimates suggest (USFWS 2013a, p. 74). For more information about allocations, see “ Possible Adverse Effects on Wild and Captive-Breeding Populations ” below.

The USFWS and partners release ferrets according to the guidance on release techniques in the Black-footed Ferret Field Operations Manual (USFWS 2016a, entire; Operations Manual), allowing for adjustments to the techniques according to USFWS-approved management plans. All captive-reared ferrets receive adequate preconditioning in outdoor pens at the National Black-footed Ferret Conservation Center, or other USFWS-approved facility, prior to release. Ferrets exposed to preconditioning exhibit higher post-release survival rates than non-preconditioned ferrets (Biggins et al. 1998, pp. 651-652; Vargas et al. 1998, p. 77). Captive ferrets receive vaccines for canine distemper and plague, and passive integrated transponder (PIT) tag implants for later identification, prior to release. Ferrets are released from August to November, which is when young-of-the-year ferrets disperse in the wild (USFWS 2016a, p. 16). Typically, the USFWS transports the ferrets to the site and releases them directly into suitable habitat without protection from predators, known as a “hard release.”

The USFWS is involved in the planning and decision-making processes, implementation of reintroductions, and management and monitoring of all reintroduction sites. Our partners contribute their commitment, resources, and legal authorities as wildlife managers to the management of reintroduction sites. The USFWS will partner with AZGFD on Federal, State, and private land reintroduction sites within the SWEPA, or the appropriate Tribal wildlife authority on Tribal lands, for reintroduction site management. The USFWS currently partners with AZGFD on two established reintroduction sites in Arizona. AZGFD has demonstrated their commitment to the partnership and to ferret recovery through 26 years of experience with ferret reintroductions in Arizona, development of Arizona-specific management plans for ferrets and prairie dogs (AZGFD 2016, entire; Underwood 2007, entire), and contribution of permanent and annual field staff to accomplish necessary field activities.

On non-Tribal lands in Arizona, the USFWS Operations Manual and Arizona's Management Plan guide the management of ferret reintroduction sites. On Tribal lands, the USFWS Operations Manual and any appropriate Tribal ferret management plan and other site-specific plans and procedures guide management of reintroduction sites. Partners, in conjunction with the USFWS and landowner or manager, develop a site-specific management plan, which includes monitoring and adaptive management. All involved parties follow all applicable laws regulating the protection of ferrets (see “Management Restrictions, Protective Measures, and Other Special Management” below).

As cited above, under 50 CFR 17.81(b), before authorizing the release as an experimental population, the USFWS must find by regulation that such release will further the conservation of the species. We explain our rationale for making our finding below. In making such a finding, we must consider effects on donor populations, the likelihood of establishment and survival of the experimental population, the effects that establishment of the experimental population will have on recovery of the species, and the extent to which the experimental population will be affected by Federal, State, or private activities.

Our regulations at 50 CFR 17.81 require that we consider any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere. We know of no naturally occurring wild populations of ferrets throughout the historical range of the species (see “ Historical Range ” above). The USFWS considers the ferret extirpated in the wild except for reintroduced populations ( i.e., all ferrets in the wild are the result of reintroductions). We consider all ferrets used to establish populations at reintroduction sites that come from the captive-bred population or, occasionally, from self-sustaining reintroduced populations as surplus, meaning they are genetically redundant within the source population and their removal from the source population will not affect the source population's persistence. If animals are translocated from other reintroduction sites, only wild-born kits from self-sustaining reintroduced populations are considered for translocation into new or non-self-sustaining reintroduction sites (Lockhart, 2000-2007, as cited in USFWS 2013a, p. 27, P. Gober, USFWS, pers. comm., August 5, 2022).

The USFWS uses ferrets from the captive-bred population or a self-sustaining wild population to establish populations at reintroduction sites. In conformance with the USFWS allocation process, after we approve a reintroduction site for ferret allocations, the USFWS recommends the release of up to 20 to 30 captive-raised or wild-translocated ferrets during the first year of the reintroduction. Subsequent annual supplemental releases are expected until the population at a given reintroduction site becomes self-sustaining.

We anticipate no adverse effects on existing populations of ferrets, whether captive or wild, due to the removal of individuals from those populations for the purpose of reintroducing and establishing new populations in the SWEPA. We base this conclusion on the purpose for and the management of the captive-bred population (see “ Captive Breeding ” above), the management of other sites to achieve and maintain self-sustaining status for recovery purposes, and the USFWS's allocation process, which prioritizes reintroducing the limited number of surplus ferrets to sites with high chances of success. In summary, ferrets released at reintroduction sites will be genetically redundant individuals from populations that will remain self-sustaining despite the removal of those individuals.

In our findings for designation of an experimental population, we must consider if the reintroduced population will become established and survive in the foreseeable future. The term “foreseeable future” appears in the ESA in the statutory definition of “threatened species.” However, the ESA does not define the term “foreseeable future.” Similarly, our implementing regulations governing the establishment of experimental populations under section 10(j) of the ESA use the term “foreseeable future” (50 CFR 17.81(b)(2)) but do not define the term. Our implementing regulations at 50 CFR 424.11(d), regarding factors for listing, delisting, or reclassifying species, 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 as it relates to life history of the species and its response to threats. While we use the term “foreseeable future” here in a different context (to determine the likelihood of experimental population establishment and to establish boundaries for identification of the experimental population), we apply a similar conceptual framework. Our analysis of the foreseeable future uses the best scientific and commercial data available and considers the timeframes applicable to the relevant effects of release and management of the species and to the species' likely responses in view of its life-history characteristics.

In considering the likelihood of establishment and survival of populations of ferrets reintroduced in the SWEPA, we consider whether causes of the species' extirpation have been addressed. We also consider availability of suitable habitat and our previous experience with reintroduction efforts to inform our assessment of the likelihood of success of reintroductions in the SWEPA.

Understanding the causes of the extirpation of ferret populations is necessary to sufficiently address threats to the species in the SWEPA so that reintroduction efforts are likely to be successful. Ferrets depend on prairie dog populations for food, shelter, and reproduction. Historical ferret declines resulted from: (1) widespread prairie dog poisoning; (2) adverse effects of plague on prairie dogs and ferrets; and (3) major conversion of habitat (see “ Threats/Causes of Decline ” above).

Poisoning of prairie dogs no longer occurs to the extent and intensity that it did historically; the current use of poison to control prairie dogs occurs in limited and selective ways. Although land-use and ownership patterns in Arizona have not changed much since past poisoning campaigns, poisoning became less common in the 1970s because prairie dog populations had been reduced by over 90 percent and use of rodenticides became more closely regulated than it had been historically (USFWS 2013a, pp. 49-51). State and Federal agencies have limited involvement in control of prairie dogs on private lands unless they pose a threat to human safety or health ( e.g., plague transmission in an urban setting). Where State and Federal agencies have involvement, control methods have largely shifted to nonlethal techniques. For example, translocation as a method of prairie dog control is becoming more common, while lethal control seems to be declining (Seglund et al. 2006, p. 49). In addition, landowners and managers have expressed interest in managing prairie dogs specifically for ferret reintroductions, as evidenced by the number of current and potential reintroduction sites (see “ Identified Reintroduction Sites ” below).

Landowners and managers have used zinc phosphide as a registered rodenticide for prairie dog control since the 1940s (Erickson and Urban 2004, p. 12). In the early 2000s, manufacturers started promoting use of the anticoagulant rodenticides chlorophacinone (Rozol®) and diphacinone (Kaput®). These chemicals pose a much greater risk than zinc phosphide of secondary poisoning to nontarget wildlife that prey upon prairie dogs, such as ferrets (Erickson and Urban 2004, p. 85). In 2009, the U.S. Environmental Protection Agency (EPA) authorized use of Rozol® throughout much of black-tailed prairie dog range via a Federal Insecticide, Fungicide, and Rodenticide Act section 3 registration. However, the EPA labeled Rozol® and Kaput-D® only for the control of black-tailed prairie dogs, not Gunnison's, and the labels do not allow use in Arizona or the taking of “endangered species.” The EPA has also established additional restrictions through the Endangered Species Protection Bulletins that ban the use of Rozol® in ferret recovery sites. These bulletins are an extension of the pesticide label, and it is a violation of Federal and State law to use a pesticide in a manner inconsistent with the label.

In Arizona, the use of poison to control prairie dogs may occur on State, Federal, and private lands with the appropriate permit. Products registered for prairie dog control by the EPA require a pesticide applicators license, which an applicator can obtain only through a formal process with the Arizona Department of Agriculture (Underwood 2007, pp. 23-24). The extent of poisoning in Arizona is extremely limited in area compared to historical poisoning. For example, from 2013 through 2018, the Animal and Plant Health Inspection Service's (APHIS) Wildlife Services treated prairie dogs with zinc phosphide at three private properties totaling 56 ac (23 ha) of colonies, for livestock and property protection on pasture and farmland near rural communities (C. Carrillo, pers. comm., APHIS, October 23, 2019). None of these treatments occurred in or near current or proposed reintroduction areas. Given the limited use of prairie dog poisons in Arizona, and partnerships with landowners and managers willing to manage prairie dogs for ferrets, poisoning should not affect the establishment or success of reintroduced populations of ferrets.

As previously noted, plague can adversely affect ferrets directly via infection and subsequent fatality, and indirectly by decimating prairie dog populations, the ferret's prey. Management to reduce plague has improved, including dusting prairie dog burrows with insecticide to control fleas and vaccinating ferrets. The development of fipronil baits to control fleas in prairie dogs is also underway. In Colorado, black-tailed prairie dog survival improved when researchers applied the insecticide deltamethrin as a prophylactic treatment to control fleas in prairie dog burrows (Seery et al. 2003, p. 443; Seery 2006, entire). Based on management implementation at various reintroduction sites through the efforts of our partners, we expect the threat from plague to be managed by monitoring, dusting, vaccinating, and maintaining more and widely spaced reintroduction sites (USFWS 2013a, p. 78).

In Arizona, plague management includes best management practices and adaptive management to respond to changing conditions and incorporating new techniques as researchers develop them (AZGFD 2016, p. 19, appendices E and F). In addition, AZGFD, the USFWS, and the U.S. Geological Survey are conducting an intensive plague study in the AVEPA to determine whether plague is present at an enzootic level that current plague surveillance is not detecting (H. Hicks, AZGFD, pers. comm., February 5, 2022). Plague will be an ongoing challenge to ferret recovery, but with current management tools, promising new treatments, the commitments of our partners, and the benefit of being able to establish widely spaced populations across the SWEPA, we will manage this threat sufficiently to support the conservation of the ferret at a landscape level.

Currently, rangewide conversion of prairie dog habitat is not significant relative to historical levels, although it may affect some prairie dog populations locally (USFWS 2013a, pp. 24-25). We do not expect agricultural land conversion and urbanization to have a measurable effect on the current condition of ferrets at the species level, because sufficient rangeland, including federally managed land, persists rangewide (USFWS 2019, pp. 27, 35). In Arizona, cropland currently covers almost 1.3 million ac (526,000 ha), or about one to two percent of the landscape (USDA 2019, p. 7), predominantly in central and southern Arizona, outside of the range of the Gunnison's prairie dog. Within the range of Gunnison's prairie dog in Arizona, agricultural development affects 31,449 ac (12,727 ha), and urban development affects 78,673 ac (31,838 ha), both of which, combined, constitute less than one percent of the range of the Gunnison's prairie dog (Seglund 2006, p. 15). There are about 22 million ac (8,900,000 ha) of agricultural activity in Arizona in the form of pastures for livestock grazing (USDA 2019, p. 19). These non-cultivated agricultural lands may represent habitat for the prairie dog and ferret in Arizona (Ernst et al. 2006, p. 91). Routine livestock grazing and ranching activities are largely compatible with maintaining occupied prairie dog habitat capable of supporting ferrets (USFWS 2013b, p. 20) (see discussion about grazing in “ Actions and Activities that May Affect the Introduced Population ” below).

The USFWS and its partners have considerable experience establishing reintroduced ferret populations. Since 1991, we have initiated ferret reintroductions at 31 sites, including 2 in Arizona (J. Hughes, USFWS, pers. comm., December 13, 2021). These sites have had varying degrees of success, but they have all contributed to our understanding of the species' needs and effective management toward establishing reintroduced populations. The USFWS and our partners continually apply adaptive management principles through monitoring and research to ensure that the best available scientific information is used to develop new tools ( e.g., fipronil baits), update strategies and protocols, and identify new reintroduction sites, to progress towards recovery (USFWS 2016a, entire; AZGFD 2016, p. 19).

The USFWS and our partners have developed and refined reintroduction techniques. These include advancements and improvements in management and oversight of the captive-breeding program, veterinary care and animal husbandry (USFWS 2016a, entire), the preconditioning program (Biggins et al. 1998, entire; USFWS 2016a, pp. 34-37), release techniques, and disease and plague management, including ferret vaccination programs at individual reintroduction sites. With respect to disease management, vector control ( i.e., dusting and/or fipronil grain baits) and vaccination use in concert with vigilant plague epizootic monitoring may be the most effective way to reduce the rangewide effects of plague (Abbott and Rocke 2012, pp. 54-55; Tripp et al. 2017, entire). However, plague remains an ongoing issue (Scott et al. 2010, entire; Rohlf et al. 2014, entire) requiring ongoing management to maintain both the captive and reintroduced populations (USFWS 2019, p. 65).

In Arizona, the USFWS and our partners refine management strategies and field techniques through adaptive management practices to enhance reintroduction efforts. For example, when ferrets did not appear to be breeding at Aubrey Valley after 5 years of releases, release strategies were modified to incorporate pen breeding and springtime releases, and wild-born kits were documented the following year (AZGFD 2016, p. 5). The USFWS also continually adapts and refines recommended plague monitoring and management. At Espee Ranch, for example, we learned that plague was present only after we released ferrets despite the use of pre-release plague surveillance and management protocols. Subsequently, AZGFD incorporated the latest disease monitoring protocols and adaptive management into its Management Plan (AZGFD 2016, p. 19, appendices E and F). In addition, at Espee Ranch, the USFWS and AZGFD participated in trials of the experimental SPV, the results of which have contributed to both the national effort to investigate SPV as a management tool as well as our understanding of local plague conditions. Given the USFWS's 31 years of experience reintroducing ferrets across their historical range, and the USFWS's and AZGFD's 26 years of experience in Arizona, developing and refining reintroduction and management techniques, we are likely to be successful in establishing and managing new populations of ferrets in the SWEPA.

The likelihood of establishing ferret populations largely depends on adequate habitat. Although there was a significant decline of prairie dog occupied habitat on non-Tribal lands in Arizona historically, there has been a 10-fold increase in occupied habitat since 1961 (Seglund 2006, p. 16). Outside of Navajo and Hopi lands, Arizona currently has more than 108,000 ac (43,707 ha) of occupied prairie dog habitat (H. Hicks, AZGFD, pers. comm., January 26, 2018), a portion of which is located on lands of the Hualapai Tribe. Lands of the Navajo Nation and the Hopi Tribe collectively may contain about 250,000 ac (101,174 ha) of occupied prairie dog habitat (Johnson et al., 2010, p. iv). With purposeful management, this amount and distribution of prairie dog occupied habitat would be capable of supporting multiple ferret reintroduction sites.

In addition to the amount of habitat available in the SWEPA, individual reintroduction sites need to be of sufficient size to support reintroduced ferrets. Two sites in Arizona currently exceed or have exceeded the USFWS's and AZGFD's estimated Gunnison's prairie dog occupied acreage (7,415 ac [3,000 ha] and 5,540 ac [2,242 ha], respectively) to reintroduce ferrets: Aubrey Valley/Double O Ranch and Espee Ranch (AZGFD 2016, p. 6). In 2018, Aubrey Valley/Double O Ranch contained about 65,500 ac (26,500 ha) of occupied prairie dog habitat and 264,000 ac (106,850 ha) of potential acreage (USFWS 2019, table 3). In 2007, prior to ferret reintroduction, Espee Ranch contained approximately 29,000 ac (11,736 ha) of occupied prairie dog habitat. Ferret monitoring and prairie dog management and monitoring continue to occur at Aubrey Valley/Double O Ranch, and prairie dog management and monitoring continue to occur at Espee Ranch. In addition to these two established reintroduction sites, four potential reintroduction sites have been identified (AZGFD 2016, entire). AZGFD has a management plan to conserve and maintain viable prairie dog populations and the ecosystems they inhabit statewide (Underwood 2007, entire). The acreage area criteria, along with implementation of management plans for viable prairie dog populations and ferrets and their habitats, will ensure that any sites selected for reintroduction have sufficient quantity and quality of habitat to support establishment of ferret populations.

Additional occupied prairie dog habitat is necessary before ferrets are released at additional sites within the SWEPA. Ferret reintroduction sites are relatively large, and their management requires coordination with multiple partners. AZGFD and other partners are currently implementing activities to monitor and manage prairie dog habitat in potential reintroduction sites in support of future ferret reintroductions. This 10(j) rule will facilitate new partnerships with private landowners and encourage voluntary management of prairie dog habitat in anticipation of future ferret reintroductions by providing regulatory flexibility regarding incidental take associated with activities deemed compatible with ferret recovery (50 CFR 17.84(g)). The 10(j) rule will also allow for regulatory consistency across different land management agencies or authorities. For these reasons, we consider the SWEPA an important step toward increasing the number of ferret reintroduction sites and our contribution toward ferret recovery.

Prairie dog populations in Arizona have increased from historical lows in the 1960's, and the State is managing them for long-term viability. The potential for continued expansion of occupied prairie dog habitat across Arizona through prairie dog conservation and disease management, coupled with past success of ferret reintroductions in Arizona and across the species' range, suggests that ferret-occupied areas can expand through additional reintroductions and dispersal. Reintroduction of ferrets in the larger SWEPA will contribute to achieving the USFWS ferret Recovery Plan guidelines for Arizona and contribute to ferret recovery across the species' range (USFWS 2013a, p. 77).

The USFWS and our partners have considerable experience reintroducing ferrets rangewide and in Arizona. We have guidelines for selecting suitable reintroduction sites (USFWS 2013a, entire. pp. 73-74; USFWS 2016a, pp. 1-10; AZGFD 2016, p. 7) and developed protocols and management plans for those sites (USFWS 2016a, entire; AZGFD 2016, appendices). The SWEPA contains a sufficient quantity and distribution of habitat to support reintroductions at additional sites with continued and additional prairie dog management. Additionally, the causes of extirpation of ferrets in Arizona have been or are being addressed; the widespread poisoning of prairie dogs is no longer occurring, the USFWS and partners continue to develop plague management techniques, and the conversion of habitat into cropland is not occurring at a significant scale. Lastly, the demonstrated success of existing reintroduced ferret populations in Arizona indicates that additional reintroduction efforts in the SWEPA will be successful in establishing and sustaining additional ferret populations, required for species recovery.

The USFWS's recovery strategy for the ferret range-wide requires establishment of numerous, spatially dispersed populations of ferrets within the range of all three prairie dog species to reduce the risk of stochastic events affecting multiple populations ( e.g., plague), increase management options, and maintain genetic diversity (USFWS 2013a, table 7) (see “Recovery, Captive Breeding and Reintroduction Efforts to Date” above). Delisting criteria for the species include 30 populations in 9 of 12 States within the species' historical range and distributed among the ranges of 3 prairie dog species (USFWS 2013a, p. 6). To implement this recovery strategy and achieve recovery criteria, additional successful reintroductions of ferrets are necessary (USFWS 2013a, p. 7). We will accomplish this by encouraging new partnerships with landowners and managers and the voluntary purposeful prairie dog management needed to support ferret populations via regulatory flexibilities.

Participation by numerous partners is critical to achieve the ferret's delisting criteria of multiple spatially dispersed populations and support the species redundancy, representation, and resiliency necessary for recovery. To achieve this strategy, the Recovery Plan suggests recovery guidelines for each State within the historical range of the species for the number of ferrets and prairie dog habitat acreages (proportional to the historical amount of prairie dog habitat) to contribute to meeting recovery criteria (USFWS 2013a, p. 69). These recovery guidelines by State are intended to improve risk management and ensure equity of recovery responsibilities across State boundaries (USFWS 2013a, table 8). The USFWS collaborated with AZGFD, the Navajo Nation, the Hualapai Tribe, and private landowners to initiate one of the early ferret reintroduction sites and the first in a Gunnison's prairie dog population.

The USFWS's Recovery Plan downlisting and delisting criteria guidelines for Arizona are 74 free-ranging breeding adult ferrets on 17,000 ac (6,880 ha) of Gunnison's prairie dog occupied habitat, and 148 breeding adults on 34,000 ac (13,760 ha), respectively. The guidelines for New Mexico and Utah are 220 and 25 breeding adult ferrets for downlisting, respectively, and 440 and 50 breeding adults for delisting (USFWS 2013a, table 8). Delisting criteria for the entire range include five ferret populations in colonies of both Gunnison's and white-tailed prairie dogs (USFWS 2013a, p. 6). About 27 percent of the Gunnison's prairie dog range occurs in Arizona (Seglund et al. 2006, p. 70), so establishing additional ferret populations in Gunnison's prairie dog habitat within the SWEPA will contribute to meeting this criterion.

Currently, there are two established ferret reintroduction sites in Arizona. As of 2013, we considered the Aubrey Valley/Double O Ranch site one of the four most successful reintroduced populations throughout the species' range; it had a population that exceeded the recommended downlisting criteria for Arizona and we considered it self-sustaining (USFWS 2013a, pp. 5, 22, 77). However, the population declined appreciably, for which we suspect that plague may be the cause. Although plague has likely extirpated ferrets at the other established reintroduction site, Espee Ranch, efforts to control plague and restore habitat for ferrets continue. The SWEPA will include all potential ferret habitat in Arizona and on participating Tribal lands, including Hualapai Tribal lands, a portion of Hopi Tribal lands, and Navajo Nation lands in Arizona, New Mexico, and Utah (see “Experimental Population” above). Establishing additional populations within the SWEPA will reduce the vulnerability of extirpation of the species. Additionally, the widely distributed reintroduction sites identified, and the potential for other reintroduction sites ( e.g., on the Navajo Nation) will reduce the effects of localized or stochastic events on overall recovery efforts, by reducing the likelihood that all individuals or all populations would be affected by the same event. Reintroducing viable ferret populations in the New Mexico and Utah portions of the Navajo Nation would not only aid in recovery of the species but also in meeting the Recovery Plan's recovery guidelines for those States (USFWS 2013a, p. 77).

The significant threat of plague to ferret populations emphasizes the need for several spatially dispersed reintroduction sites across the widest possible distribution of the species' historical range (USFWS 2013a, p. 70), supporting the value of a statewide approach to reintroductions. Establishment of the SWEPA will facilitate ferret reintroductions across a large geographic area and will result in establishment of several populations that will persist over time, thus, contributing to recovery of the species.

Classes of Federal, State, Tribal, and private actions and activities that may currently affect ferret viability, directly or indirectly, across the species' range are urbanization, energy development, agricultural land conversion, range management, and recreational shooting and poisoning of prairie dogs (USFWS 2019, p. 13). Actions and activities that affect prairie dogs may also indirectly affect ferrets, given the ferret's dependency on prairie dogs as a food source and their burrows for shelter.

In Arizona, land ownership within the range of Gunnison's prairie dog is approximately as follows: Tribal—49.05 percent; private—21.62 percent; Federal—16.80 percent; State—12.53 percent; city/county—0.01 percent (Seglund 2006, table 3).

Although urbanization may adversely affect local prairie dog colonies, effects across the range of the species in Arizona are not substantial due to the small amount of urban land, and the rural settings of the ferret reintroduction sites. Similarly, oil and gas and other types of mineral exploration and extraction development cover less than one percent of the prairie dog range in Arizona (Underwood 2007, p. 10), and this development is not associated with established or potential ferret reintroduction sites. Solar and wind energy development has expanded in recent years but also comprises a very small part of the landscape. In Arizona, most solar power facilities are located in the southern and far western part of the State, outside of the range of Gunnison's prairie dog (U.S. Energy Information Administration 2022, n.p.). To date, there have been a number of wind projects in the range of Gunnison's prairie dog, but none currently constructed within established or potential reintroduction sites, and the existing infrastructure of wind projects occupies less than 0.005 percent of the ferret's potential range (USFWS 2019, p. 40). As discussed above, agricultural development affects less than one third of one percent of the range of Gunnison's prairie dog (Seglund 2006, p. 16). We do not expect agricultural land conversion to have a measurable effect on the future condition of the ferret in Arizona based on a 20-year analysis (USFWS 2019, p. 56).

There are about 22 million ac (8,900,000 ha) of rangeland, used predominantly for grazing, in Arizona across Tribal, private, Federal, and State lands (USDA 2019, p. 19), and these lands represent potential habitat for both the prairie dog and ferret (Ernst et al. 2006, p. 91). Livestock grazing became a prominent activity on the Arizona landscape in the 1880s and peaked in intensity around the late 1890s and early 1900s (Milchunas 2006, p. 7). Grazing in arid and semiarid areas can alter species composition of plant communities, disrupt ecosystem functions, and alter ecosystem structure (Fleischner 1994, p. 631). Available literature reveals a wide range of potential effects of livestock grazing on ecosystems that vary with site-specific characteristics, including habitat type, grazing intensity, and history of grazing (Jones 2000, entire; Milchunas and Lauenroth 1993, entire; Milchunas 2006, entire).

Few studies have examined the effects of grazing on prairie dogs. Cheng and Ritchie (2006, p. 550) observed lower growth rates in Utah prairie dogs ( C. parvidens ) in plots treated to simulate grazing in a sagebrush steppe habitat. Conversely, forage in simulated grazed plots had higher nutrition and greater digestibility, and the prairie dogs showed preference for those patches (Cheng and Ritchie 2006, pp. 549-550). Ponce-Guevara et al. (2016, pp. 5, 7) found that black-tailed prairie dog populations increased in areas of a desert grassland where cattle grazing reduced woody encroachment. The potential for competitive effects of large grazing herbivores on prairie dog populations likely depends on site-specific factors, such as habitat productivity and herbivore densities (Cheng and Ritchie 2006, p. 554). Despite the potential for competition, prairie dogs remained prominent on rangelands in Arizona during the period of heaviest livestock grazing and did not begin declining until the time of systematic prairie dog eradication programs (Oakes 2000, pp. 169-171). This long history of prairie dog persistence with livestock grazing in Arizona and the persistence of ferrets at the AVEPA lead us to conclude that livestock grazing and ranching activities can be compatible with maintaining occupied prairie dog habitat capable of supporting ferrets.

Depending on intensity, recreational shooting of prairie dogs can negatively affect local prairie dog populations through direct fatality of individuals (Vosburgh and Irby 1998, entire; Keffer et al. 2001, entire; Knowles 2002, pp. 14-15). The resulting decrease in prey base negatively affects ferrets, and it is likely this activity could occur on ferret reintroduction sites (Reeve and Vosburgh 2006, entire). Recreational shooting reduces the number of prairie dogs in a colony, thereby decreasing prairie dog density (Knowles 1988, p. 54), occupied acreage (Knowles and Vosburgh 2001, p. 12), and reproduction (Stockrahm and Seabloom 1979, entire). Recreational shooting could also cause direct fatality to prairie dog-associated species such as ferrets (Knowles and Vosburgh 2001, p. 14; Reeve and Vosburgh 2006, pp. 120-121). Although we do not have documentation of incidental take of ferrets by prairie dog shooters, direct ferret fatality due to accidental shooting is possible. Lastly, recreational shooting of prairie dogs also contributes to the environmental issue of lead accumulation in wildlife food chains (Knowles and Vosburgh 2001, p. 15; Pauli and Buskirk 2007, entire). Killing large numbers of animals with lead bullets and not removing carcasses from the field may present potentially dangerous amounts of lead to scavengers and predators of prairie dogs, such as ferrets. We have not documented ferret ingestion of lead to date (USFWS 2013a, p. 28). To address these recreational shooting conservation issues, AZGFD implements prairie dog annual shooting closures on public lands from April 1 to June 30 to reduce potential effects on prairie dog reproduction (USFWS 2019, p. 29). In addition, in the event of prairie dog population declines in an established reintroduction site for any reason, the AZGFD Commission may close prairie dog shooting until the population recovers (AZGFD 2016, p. 15).

Poisoning of prairie dogs has the potential to occur within both Gunnison's and black-tailed prairie dog habitat and can affect ferrets through loss of prey and inadvertent secondary poisoning for some poisons. In recent years, the extent of prairie dog poisoning has been closely regulated, limited in area, and confined to specific needs compared to historical poisoning. From 2013 through 2019 in Arizona, APHIS treated prairie dogs with zinc phosphide at three private properties, totaling 56 ac (23 ha) of colonies, for livestock and property protection on pasture and farmland near rural communities (C. Carrillo, pers. comm., APHIS, October 23, 2019). None of these treatments were in or near current or proposed ferret reintroduction areas.

Certain activities associated with prairie dog recreational shooting and poisoning have the potential to result in incidental ferret fatality. For example, use and establishment of roads within prairie dog and ferret habitat may result in ferret road kills and increase human access for prairie dog shooting (Gordon et al. 2003, p. 12). However, we have no information to suggest that incidental fatalities have a significant effect on ferret population viability.

When the USFWS established the AVEPA, we determined existing and foreseeable land use practices within the AVEPA to be compatible with sustaining ferret viability (61 FR 11320, March 20, 1996). These practices include grazing and related activities (including existing and foreseeable levels of prairie dog control), big game hunting, prairie dog shooting, and the trapping of furbearers and predators. Other land uses include transportation and rights-of-way ( e.g., for utilities). Our success in reintroducing ferrets in the AVEPA over 26 years supports that finding. Similarly, in the USFWS's establishment of the statewide nonessential experimental population of ferrets in Wyoming, we found that land use activities currently occurring across that State, primarily livestock grazing and associated ranch management practices, recreation, residential development, and mineral and energy development, are compatible with ferret recovery and that there is no information to suggest that foreseeable similar future activities would be incompatible with ferret recovery (80 FR 66821, October 30, 2015). Based on previous successes with other experimental ferret populations in areas influenced by similar land use activities and actions, including the AVEPA within Arizona, we conclude that the effects of Federal, State, Tribal, and private actions and activities will not pose a substantial threat to ferret establishment and persistence within the SWEPA and that SWEPA establishment will benefit the conservation of ferrets.

Our regulations at 50 CFR 17.81(c) include a list of what the USFWS provides in regulations designating experimental populations under section 10(j) of the ESA. We explain what our regulations include and provide our rationale for those regulations below.

Our regulations require that we provide appropriate means to identify the experimental population, which may include geographic locations, number of individuals to be released, anticipated movements, and other information or criteria.

The 40,905,350-ac SWEPA occurs in the State of Arizona and on sovereign lands of the Hopi Tribe, Hualapai Tribe, and the Navajo Nation, including Navajo Nation lands in New Mexico, and Utah (see “Experimental Population” above); we delineate the boundaries below in the figure titled “Southwest Nonessential Experimental Population Area (SWEPA) for the ferret.” These boundaries are based on various grasslands and parts of biotic communities in which grasslands are interspersed, with which prairie dogs are associated, including Plains and Great Basin Grassland, Great Basin Conifer Woodland, Great Basin Desertscrub, and Petrane Montane Conifer Forest biotic communities (AZGFD 2016, pp. 8-10) (Brown et al. 1979, entire), and represent a 184-fold increase in area from the AVEPA (USFWS 2021, p. 7, figure 2). State political subdivisions include portions of Apache, Cochise, Coconino, Gila, Graham, Mohave, Navajo, Pima, Pinal, Santa Cruz, and Yavapai Counties of Arizona; Cibola, McKinley, Rio Arriba, Sandoval, and San Juan Counties of New Mexico; and San Juan County, Utah.

The SWEPA consists of two separate areas: (1) northeast and northcentral Arizona, the southeast corner of Utah, and northwest New Mexico on the Navajo Nation, and (2) southeastern Arizona.

The SWEPA will encompass and replace the AVEPA. In addition, two areas enrolled in the programmatic SHA under certificates of inclusion, the Espee Allotment and Double O Ranch, are within the SWEPA. Although this experimental population designation can overlay SHAs, we contacted enrollees to assess interest in replacing their certificates of inclusion with the provisions of this 10(j) rule. We propose phasing out the SHA certificates of inclusion in the future for interested landowners. As a result, the USFWS would conduct future reintroductions of ferrets within the SWEPA under the experimental population designation regulation.

The number of ferrets released at a given reintroduction site depends on multiple variables and can vary extensively between sites. In the AVEPA, for example, the USFWS and AZGFD released 35 ferrets over 5 years without documenting wild reproduction, which is necessary for a site to become self-sustaining. We continued releasing ferrets until the population appeared to be self-sustaining. After 4 years, the population appeared to be faltering, and we resumed ferret releases. Over a span of 11 years, from 1996 to 2006, we released 354 ferrets at the AVEPA. After 2011, we released an additional 112 excess kits from breeding facilities into the AVEPA. We added 41 ferrets at the Double O Ranch over 4 years (2016-2019) for research purposes after ferrets from AVEPA naturally dispersed there. We released 99 ferrets at Espee Ranch over a span of 3 years (2007 to 2009). The USFWS recommends initially releasing up to 20 to 30 ferrets at new reintroduction sites in the SWEPA, with the total number of ferrets released across multiple years at new reintroduction sites likely similar to the established reintroduction sites in Arizona.

Understanding ferret movement patterns and distances will ensure accurate identification of ferrets associated with the SWEPA. Researchers have documented newly released captive-born ferrets dispersing up to 30 miles (49 km) from the release site (Biggins et al. 1999, p. 125), and wild-born ferrets more than 12 miles (20 km) (USFWS 2019, p. 7). AZGFD documented ferrets up to 15 miles outside the AVEPA starting in 2012, 16 years after initial releases (J. Cordova, AZGFD, pers. comm., November 22, 2022).

While dispersal of ferrets depends on variables such as competition within a given population and the availability of adjacent habitat and prey, we would expect a pattern of ferret dispersal from new reintroduction sites in the SWEPA to be similar to those observed in the AVEPA. Outside of the SWEPA, the closest current reintroduced population of ferrets is Coyote Basin, Utah, which is about 200 mi (320 km) away, substantially greater than documented ferret dispersal distances. Therefore, we will consider any ferret found in the wild within the boundaries of the SWEPA to be part of the experimental population.

The USFWS recommends the establishment of at least five ferret reintroduction sites in the SWEPA to buffer against stochastic or catastrophic events and reliably meet Recovery Plan recovery guidelines (USFWS 2022a). Federal and State public lands in Arizona and Tribal and private lands currently support large expanses of grasslands with varying sizes of Gunnison's prairie dog colonies (AZGFD 2016, figure 1). Reintroduction sites may include those discussed below or additional sites where there are willing landowners and managers, and suitable prairie dog habitat exists.

(1) Aubrey Valley/Double O Ranch—The AVEPA encompasses 221,894 ac (89,800 ha) of private, Tribal, State, and Bureau of Land Management (BLM) managed lands and is located about 5 miles northwest of Seligman in Coconino, Yavapai, and Mohave Counties. The adjacent Double O Ranch encompasses 236,792 ac (95,828 ha) of private, State, and USFS managed lands south of the AVEPA. Together, these sites contain 264,016 ac (106,846 ha) of grasslands. AZGFD mapped an average of 52,455 ac (21,228 ha) of Gunnison's prairie dog colonies in the AVEPA between 2007 and 2016 (AZGFD 2016, p. 8) (H. Hicks, AZGFD, pers. comm., January 26, 2018). In 2014 and 2016, respectively, Gunnison's prairie dogs occupied 7,074 and 6,313 known ac (2,863 and 2,555 ha) on Double O Ranch (AZGFD 2016, p. 7; H. Hicks, AZGFD, pers. comm., January 26, 2018). Plague is likely present in the AVEPA.

(2) Espee Ranch—The Espee Allotment encompasses 145,644 ac (58,941 ha) of private and State lands about 17 miles northeast of Seligman, in Coconino County, Arizona. There are 139,255 ac (56,356 ha) of grasslands (AZGFD 2016, pp. 8-9). In 2007, prior to release of ferrets, approximately 29,000 ac (11,736 ha) of occupied prairie dog habitat was mapped (AZGFD 2007, p. 1). Since then, the number of prairie dog occupied acres has fluctuated greatly, with 3,228 occupied ac (1,306 ha) in 2014 and 21,771 occupied ac (8,811 ha) in 2018 (J. Cordova, AZGFD, pers. comm., August 18, 2022). Plague is present on the Espee Ranch and is the suspected reason for the lack of recent ferret observations despite multiple releases.

The four areas described below do not currently meet the minimum necessary Gunnison's prairie dog occupied acreage to support ferrets. However, active management, such as translocations of prairie dogs, and dusting for plague or administration of a plague vaccine, along with annual monitoring of prairie dog populations, may provide for the needed acreage of occupied prairie dog habitat in these areas (AZGFD 2016, p. 9).

(1) Kaibab National Forest, Williams/Tusayan Ranger Districts--These areas cover over 613,000 ac (248,078 ha) of USFS, Department of Defense, private, and State managed lands surrounding the city of Williams in Coconino and Yavapai Counties. There were 96,954 ac (39,237 ha) of grasslands with 4,984 ac (2,017 ha) of known Gunnison's prairie dog occupied area in 2015 (AZGFD 2016, p. 9).

(2) CO Bar Ranch—This ranch encompasses 263,758 ac (106,741 ha) of private, State, BLM, and Tribal lands and is located about 24 miles north of Flagstaff in Coconino County. There were 184,815 ac (74,794 ha) of grasslands with 870 ac (352 ha) of known Gunnison's prairie dog occupied area in 2015 (AZGFD 2016, p. 9).

(3) Petrified Forest National Park—This area encompasses 223,027 ac (90,258 ha) of NPS, State, Tribal, BLM, and privately managed lands east of Holbrook in Navajo and Apache Counties. There were 214,135 ac (86,659 ha) of grasslands with 87 ac (35 ha) of known Gunnison's prairie dog occupied area in 2015 (AZGFD 2016, p. 10).

(4) Lyman Lake—This area encompasses 316,958 ac (128,271 ha) of private, State, AZGFD, BLM, and USFS lands south of St. Johns in Apache County. There were 273,227 ac (110,573 ha) of grasslands with 2,045 ac (828 ha) of known Gunnison's prairie dog occupied area in 2015 (AZGFD 2016, p. 10).

Black-tailed prairie dog habitat exists in southeastern Arizona (Cockrum 1960, p. 76; figure 1). In 2008, the AZGFD reintroduced this species into a small portion of its historical range via translocations from wild populations in New Mexico (W. Van Pelt, AZGFD, pers. comm, July 6, 2022). This new black-tailed prairie dog population occurs on the BLM-administered Las Cienegas National Conservation Area. Surveys in 2021 estimated that a minimum of 210 black-tailed prairie dogs occupied 28 ac (11.3 ha) (J. Presler, AZGFD, pers. comm., February 7, 2022). It would likely take many years to reach enough black-tailed prairie dog occupied acreage with a stable population to support a reintroduction of ferrets. However, efforts to expand black-tailed prairie dog colony acreage would offer opportunities to re-create habitat for ferrets (USFWS 2013a, p. 51).

We will consider reintroduction sites on Tribal Lands if Tribes are interested and where suitable prairie dog habitat exists. Forty-nine percent of the land within the range of Gunnison's prairie dog in Arizona is under Tribal ownership (Seglund et al. 2006, table 3). The Navajo Nation is the largest owner of Gunnison's prairie dog habitat (Johnson et al. 2010, p. 6). Working with the Hopi Tribe, Hualapai Tribe, and Navajo Nation, we may be able to identify other potential sites for ferret reintroduction on their Tribal sovereign lands. All three Tribes have expressed interest in working with the USFWS in ferret recovery (J. Nystedt, USFWS, pers. comm., March 23, 2022; Navajo Nation 2017, entire; D. Clarke, Hualapai Tribe, pers. comm., March 26, 2018; Hopi Tribe 2021, entire). The Hualapai and Hopi reservations and Hopi-owned ranches coincide entirely with Arizona ( i.e., their lands are wholly within the borders of the State), whereas the Navajo Nation also coincides with parts of the States of New Mexico and Utah, within which the Navajo Nation has sovereign authority to manage wildlife.

Surveys of prairie dog populations on Tribal lands, in addition to other information such as incidence of plague, are needed as part of the process of considering these lands for ferret reintroduction. The Navajo Nation and Hopi Tribe, in collaboration with Natural Heritage New Mexico, conducted a remote survey of Gunnison's prairie dogs on the lands of both Tribes in 2010. The technique used, involving standard photo-interpretation to identify disturbance in potential habitat on digital orthophoto quarter quads, estimated the total area of occupied Gunnison's prairie dog habitat on the Navajo Nation and Reservation of the Hopi Tribe at 253,562 ac (102,615 ha) (Johnson et al. 2010, pp. iv, 18).

The Navajo Nation recently received a USFWS Tribal Wildlife Grant to investigate areas for future ferret reintroductions, including prairie dog habitat mapping, disease monitoring, and development of a ferret reintroduction plan for the Navajo Nation. As mentioned previously, we originally included some lands of the Hualapai Tribe and deeded lands owned by the Navajo Nation when we designated the AVEPA, and the Tribes have worked cooperatively with the USFWS and AZGFD on ferret recovery. The Hopi Tribe has expressed interest in ferret recovery activities on a portion of their lands, including ranches and part of their Reservation. They requested excluding District 6 of their Reservation, so we have excluded that area from the SWEPA.

When we establish experimental populations under section 10(j) of the ESA, we must determine whether such a population is essential to the continued existence of the species in the wild. This determination is based solely on the best scientific and commercial data available. Our regulations state that an experimental population is considered essential if its loss would be likely to appreciably reduce the likelihood of survival of that species in the wild (50 CFR 17.80(b)). All other populations are considered nonessential.

The ESA states that, prior to any release “the Secretary must find by regulation that such release will further the conservation of the species” (49 FR 33893, August 27, 1984). Reintroductions are, by their nature, experiments, the fate of which is uncertain. However, it is always our goal for reintroductions to be successful and contribute to recovery. The importance of reintroductions to recovery does not necessarily mean these populations are “essential” under section 10(j) of the ESA. In fact, Congress' expectation was that “in most cases, experimental populations will not be essential” (H.R. Conference Report No. 835 supra at 34; 49 FR 33888, August 27, 1984). The preamble to our 1984 publication of ESA 10(j) implementing regulations reflects this understanding, stating that an essential population will be a special case, and not the general rule (49 FR 33888, August 27, 1984).

In our final rule establishing the nonessential experimental population in Aubrey Valley, the USFWS found the AVEPA to be “nonessential” because the captive-breeding population is both the secure source for all reintroductions, and the primary repository of genetic diversity for the species (61 FR 11320, March 20, 1996). We considered all reintroduced ferrets to be in excess to the captive population, and we could replace any deceased reintroduced animals through captive breeding (61 FR 11323, March 20, 1996).

The USFWS did not anticipate changing the nonessential designation for the AVEPA unless the experiment failed or until the ferret recovered (61 FR 11323, March 20, 1996). However, because this final rule will replace the AVEPA through incorporation into the SWEPA, an evaluation as to whether the new SWEPA experimental population is essential to the continued existence of the species in the wild is appropriate.

As discussed above, we expect the SWEPA to further the conservation of the species by contributing to the establishment of multiple, widespread populations that will persist over time and contribute to achieving recovery goals for the species. However, we consider the SWEPA nonessential because there are now a number of reintroduced ferret populations in the wild, across the range of the species. There are 18 active reintroduction sites across the ferret's historical range (J. Hughes, USFWS, pers. comm., December 13, 2021), consisting of a minimum of 340 ferrets in 2018, with a minimum of 254 at the 4 most successful reintroduction sites (Rocky Mountain Arsenal National Wildlife Refuge, Colorado; Conata Basin/Badlands, South Dakota; and Shirley Basin and Meeteetse, Wyoming) (USFWS 2019, table 3). In the black-footed ferret SSA (USFWS 2019, pp. 43-83), we used the conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, entire) to assess how the populations at the active sites contribute to the current and future species condition to address the ferret's viability in the wild across its range.

Resiliency indicates a population's ability to withstand environmental and demographic stochasticity. We assessed the resiliency of each ferret population across the species' range based on the 5-year mean number of breeding adults, habitat suitability, annual plague management, annual ferret vaccinations, ferret population persistence, and level of prairie dog conservation. Of the 14 sites active at the time of our assessment, we considered 2 in high-resiliency condition and 8 in moderate-resiliency condition (USFWS 2019, table 11). We estimated that in 20 years, if management and threats remain at current levels, the two high-resiliency populations will remain in that condition, seven of the eight moderate-resiliency populations will remain in that condition, and one of the moderate-resiliency populations will become low-resiliency.

Redundancy is the ability of a species to withstand catastrophic events, via the number and distribution of populations. Representation, or ecological or genetic diversity across a species' range, enables a species to better respond to changes in the environment. Current and future high- and moderate-resiliency populations occur in the wild across six States, including Wyoming, South Dakota, Kansas, Colorado, Utah, and Arizona. This broad distribution of ferret populations across the Western United States protects against catastrophic events affecting all wild ferret populations simultaneously, and it allows for a variety of physical and biological conditions in which the species may express adaptive capacity going forward. Additionally, captive-breeding efforts continue to support the establishment of more populations throughout the species' range. Loss of the SWEPA would not affect these remaining populations of ferrets in the wild.

The current ferret population in Arizona, while contributing incrementally to conservation in concert with other sites, is a relatively small portion of the total number and distribution of ferret populations needed for species recovery. The Recovery Plan's delisting criteria for ferrets calls for 30 or more populations, with at least 1 population in each of at least 9 of 12 States within the historical range of the species, and at least 5 populations within colonies of Gunnison's and white-tailed prairie dogs. About 27 percent of Gunnison's prairie dog range occurs in Arizona. This equates to about 9 to 14 percent of all prairie dog occupied habitat ( i.e., the range of all 3 prairie dog species) (USFWS 2013a, p. 24). In Arizona, the relative recommended contribution of habitat to ferret delisting is about seven percent (USFWS 2013a, table 8, p. 77).

The SWEPA will further the recovery of the ferret by allowing us to establish multiple wild populations within the species' historical range. We conclude that the loss of all reintroduced ferrets within the SWEPA is not likely to appreciably reduce the likelihood of survival of the species in the wild due to maintenance of the captive population for additional reintroductions into the wild, the number of reintroduction sites and established populations rangewide, and the expected incremental contribution of Arizona to the recovery of the ferret. Furthermore, the SWEPA covers a relatively small portion of potential ferret habitat rangewide: about seven percent; thus, the potential size of the experimental population within the SWEPA will be small relative to the potential number of ferrets rangewide. Therefore, as required by 50 CFR 17.81(c)(2), we determine the SWEPA experimental population is not essential to the continued existence of the species in the wild, and we designate the SWEPA experimental population as nonessential.

We are applying the experimental population designation and regulations to the entire SWEPA; thus, a single set of statutes and regulations and a single management framework will apply to all non-Federal and Federal lands containing potential ferret habitat within the designated SWEPA boundary. This approach will extend regulatory assurances to all areas where ferrets could potentially establish, including the current properties covered by the SHA. There are no significant differences between the terms and conditions of the SHA and 10(j) regulations in terms of how landowners operate their ranches with respect to ferret recovery.

The USFWS will undertake SWEPA reintroductions in cooperation with current and future partners. Existing management plans or those that wildlife managers develop in cooperation with us and other partners and stakeholders will guide management of ferret populations in the SWEPA ( e.g., USFWS 2016a, AZGFD 2016).

As discussed in the “ Actions and Activities that May Affect the Introduced Population, ” Federal, State, Tribal, and private actions will not pose a substantial threat to ferret establishment and persistence in the SWEPA because land management activities, such as agricultural land conversion, recreational shooting of prairie dogs, poisoning of prairie dogs, urbanization, and energy development, currently occurring or anticipated to occur at prospective reintroduction sites in Arizona are very limited in scope. In addition, as discussed in “ Addressing Causes of Extirpation within the Experimental Population Area ” above, due to the low demand for and regulatory restrictions on prairie dog poisoning, we do not anticipate any change in prairie dog control efforts that would reduce prairie dog occupied habitat to the extent that they would compromise the viability of any potential ferret population. The best available information indicates that future range and ranching activities will remain compatible with ferret recovery because they do not limit essential ferret behavior such as feeding, breeding, or sheltering. We base this assessment on 26 years of ferret reintroductions and management at the AVEPA and Espee and Double O Ranches in Arizona, and at other reintroduction sites throughout the range of the species (80 FR 66826, October 30, 2015).

The AZGFD, BLM, USFS, NPS, Tribes, and private landowners manage sites with high potential for ferret establishment, and these areas receive protection through the following legal mechanisms:

(1) Federal Land Policy and Management Act of 1976 (FLPMA; 43 U.S.C. 1701 et seq. )—The BLM's mission is set forth under the FLPMA, which mandates that the BLM manage public land resources for a variety of uses, such as energy development, livestock grazing, recreation, and timber harvesting, while protecting the natural, cultural, and historical resources on those lands. The BLM manages listed and sensitive species under guidance provided in the BLM Manual Section 6840—Special Status Species Management. The Manual directs the BLM to conserve ESA-listed species and the ecosystems upon which they depend, ensure that all actions authorized or carried out by the BLM comply with the ESA, and cooperate with the recovery planning and recovery of listed species. The BLM has experience in managing the ferret at four reintroduction sites in four States that occur at least in part on BLM lands. Therefore, we anticipate appropriate management by the BLM on future ferret reintroduction sites that include BLM lands.

(2) National Forest Management Act of 1976, as amended (16 U.S.C. 1600 et seq. )—This law instructs the USFS to strive to provide for a diversity of plant and animal communities when managing USFS lands. The USFS identifies species listed as endangered or threatened under the ESA, including the ferret, a Category 1 species at risk based on rangewide and national imperilment. The USFS has experience managing the ferret on one reintroduction site that occurs at least in part on USFS lands. Therefore, we anticipate appropriate management by the USFS on future ferret reintroduction sites that include USFS lands.

(3) Organic Act of 1916, as amended (16 U.S.C. 1-4)—This law requires the NPS to conserve National Park resources, consistent with the established values and purposes for each park. In addition, the Organic Act instructs the NPS “to conserve the scenery and the natural and historical objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” NPS management policies require them to conserve ESA-listed species and to prevent detrimental effects on these species. The NPS has experience managing the ferret at two National Parks in South Dakota, where the NPS protects ferrets and their habitats from large-scale loss or degradation, per their mandate. Management of these reintroduction sites would need to continue regardless of the species' listing status. Therefore, we anticipate appropriate management by the NPS on any future ferret reintroduction sites that include NPS lands.

(4) Navajo Nation Law—Navajo Nation Code (NNC), title 17, chapter 3, subchapter 21, provides protections for ferrets. Title 17 NNC section 507 makes it unlawful for any person to take wildlife on either of the following lists, as quoted from the code:

(a) “The list of wildlife indigenous to the Navajo Nation that they determine to be endangered by regulation of the Resources Committee of the Navajo Nation Council.” The Navajo Nation added the ferret to this list pursuant to Resources Committee Resolution RCF-014-91.

(b) The U.S. lists of endangered native and foreign fish and wildlife, as set forth in section 4 of the Endangered Species Act of 1973 as endangered or threatened species, to the extent that the Resources Committee adopts these lists. Navajo Nation Code (17 NNC section 504) also makes it unlawful for any person to take or possess a fur-bearing animal, which includes ferrets by definition (17 NNC section 500), except as permitted by the Director, Navajo Nation Department of Fish and Wildlife.

(5) Hopi Tribal Law—Tribal Ordinance 48 (Wildlife) documents the Tribe's exclusive jurisdiction to regulate and adjudicate all matters pertaining to wildlife found on the Hopi Reservation. All wildlife found on the Reservation, whether resident or migratory, native or introduced, is the property of the Hopi Tribe, and Tribal Law provides the times and manner of allowable take.

(6) Arizona State Law—General provisions of Arizona Revised Statutes, title 17, protects all of Arizona's native wildlife, including federally listed threatened and endangered species.

(7) Endangered Species Act—The ESA will continue to provide protection to ferrets in the SWEPA through section 10 by requiring certain management entities to obtain an enhancement of survival permit from the USFWS under section 10(a)(1)(A) for any intentional taking of a ferret that is prohibited by section 9 of the ESA and not exempted through this rule. The authorities of section 6 of the ESA and 50 CFR 17.21, 17.31, and 17.84(g) cover AZGFD's management activities. Section 7(a)(1) of the ESA also requires all Federal agencies to use their authorities to further the purposes of the ESA.

Other protections and management restrictions and measures in the SWEPA include:

(1) Incidental take: ESA 10(j) experimental population rules contain specific prohibitions and exceptions regarding take of individual animals. These rules are compatible with most routine human activities in the expected reestablishment area. Section 3(19) of the ESA defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Under 50 CFR 17.3, “harass” means an intentional or negligent act or omission that creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns that include, but are not limited to, breeding, feeding, or sheltering. And “harm” means an act that actually kills or injures wildlife, including significant habitat modification that actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. The regulations further define “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. This nonessential experimental population designation rule will allow most incidental take of ferrets in the experimental population area, provided the take is unintentional and not due to negligent conduct. However, if there was evidence of intentional take, we would refer the matter to the appropriate law enforcement entities for investigation. This is consistent with regulations for areas currently enrolled in the SHA and in the AVEPA where we do not allow intentional take.

(2) Special handling: In accordance with 50 CFR 17.21(c)(3), any employee or agent of the USFWS or of a State wildlife agency may, in the course of their official duties, handle ferrets to aid sick or injured ferrets, salvage dead ferrets, and conduct other activities consistent with 50 CFR 17.84(g), their section 6 work plan, and 50 CFR 17.31. Employees or agents of other agencies would need to acquire the necessary permits from the USFWS for these activities.

(3) Arizona promulgation of regulations and other management for the conservation of the ferret as well as other species that, in turn, would benefit ferret recovery: For example, the AZGFD includes the ferret on the Species of Greatest Conservation Need Tier 1A (AZGFD 2012, p. 216). The list provides policy guidance on management priorities only, not legal or regulatory protection. The State also implements annual prairie dog shooting closures on public lands from April 1 to June 30.

(4) Coordination with landowners and managers: We discussed this rule with potentially affected State and Federal agencies, Tribes, local governments, private landowners, and other stakeholders in the SWEPA. These agencies and landowners and managers have indicated either support for, or no opposition to, this revision to the AVEPA. In advance of our developing the original rule for AVEPA, the AZGFD determined that designation of a nonessential experimental population was necessary to achieve landowner support to make a ferret reintroduction project viable (AZGFD 2016, p. 2; 61 FR 11325, March 20, 1996). To receive the same public support for their Management Plan, the AZGFD recommended expanding the AVEPA (AZGFD 2016, p. 2). Following consideration of their recommendation, we coordinated with AZGFD and the Navajo, Hopi, and Hualapai Tribes to develop the SWEPA.

(5) Public awareness and cooperation: We informed the public of the importance of the SWEPA for the recovery of the ferret through the proposed rule and requested public comment. The replacement of the AVEPA to establish the SWEPA under section 10(j) of the ESA as a nonessential experimental population increases reintroduction opportunities and provides greater flexibility in the management of the reintroduced ferret. The nonessential experimental population designation will facilitate cooperation of the State, Tribes, private landowners, and other interests in the affected area.

(6) Potential effects to other species listed under the ESA: There are four federally listed species with distributions that overlap the SWEPA and with habitat requirements that could overlap the grassland habitats that support prairie dogs (table 1). However, we have not documented any of these species in current or potential ferret reintroduction sites and/or these species are unlikely to occur or compete with ferrets for resources. We do not expect ferret reintroduction efforts to result in adverse effects to these species.

There are no naturally occurring wild populations of ferrets. Outside of reintroduced populations, the ferret is extirpated throughout its historical range, including in Arizona, New Mexico, and Utah (USFWS 2017, entire) (see “ Historical Range ” above). Therefore, we do not need any measures to isolate or contain reintroduced ferrets in the SWEPA from other populations of black-footed ferret.

Monitoring is a required element of all ferret reintroduction projects. Reintroduction projects will conduct the three following types of monitoring:

(1) Reintroduction Effectiveness Monitoring: Reintroduction partners will monitor ferret population demographics and potential sources of fatality, including plague, annually for 5 years following the last release using spotlight surveys, snow tracking, other visual survey techniques, or possibly radiotelemetry of some individuals following AZGFD's Management Plan and the USFWS's Operations Manual (USFWS 2016a, pp. 25-59) or similar procedures identified in a management plan developed for a specific reintroduction site. Thereafter, partners will complete demographic surveys periodically to track population status. Surveys will incorporate methods to monitor breeding success and long-term survival rates, as appropriate. The USFWS anticipates that AZGFD, Tribes, and/or other participating partners will conduct monitoring, and they will include monitoring results in their annual reports.

(2) Donor Population Monitoring: We will acquire ferrets from the captive-breeding population or from another viable reintroduction site. The USFWS and our partners manage ferrets in the captive-breeding population in accordance with the AZA SSP® (Graves et al. 2018, entire). The AZA SSP® Husbandry Manual provides up-to-date protocols for the care, propagation, preconditioning, and transportation of captive ferrets, and all participating captive-breeding facilities use it.

The USFWS may translocate ferrets from other reintroduction sites, provided their removal will not negatively affect the extant population, and appropriate permits are issued in accordance with current regulations (50 CFR 17.22) prior to their removal. Population monitoring, following any removals for translocation, will occur under guidance of the USFWS-approved management plan for the donor site.

(3) Monitoring Effects to Other Listed Species and Critical Habitat: We do not expect adverse effects to other federally listed species or critical habitat (see “ Other Protections and Management Restrictions ” number 6, above).

Based on the above information and using the best scientific and commercial data available (in accordance with 50 CFR 17.81), we find that releasing ferrets into the SWEPA will further the conservation of the species and that these reintroduced populations are not essential to the continued existence of the species in the wild.

Below, we highlight some of the changes made in the preamble to this final rule as a result of comments and additional analysis:

• Added information that suggests that reductions in prairie dog numbers and fitness may contribute to plague epizootics (see “Threats/Causes of Decline” above).

• Added the number of new reintroduction sites we intend to establish in the SWEPA (see “Experimental Population” above).

• Edited and added information in our discussion about the effects of grazing on prairie dogs to emphasize the complexity of the interactions and the site-specific variation of effects (see “How Will the Experimental Population (SWEPA) Further the Conservation of the Species?” above).

• Added information about the resiliency, redundancy, and representation of the ferret from the SSA to further support our experimental population designation of nonessential (see “How Will the Experimental Population (SWEPA) Further the Conservation of the Species?” above).

• Clarified language associated with the minimum occupied prairie-dog acreage for Gunnison's prairie dogs related to ferret reintroductions (see “Experimental Populations” above).

This final rule also incorporates minor, non-substantive clarifying edits ( e.g., citation clarification, resolution of numerical or other inconsistencies, etc.) and the incorporation of additional information based on the public and peer review comments we received. However, the information we received during the comment period for the proposed rule did not change our findings or the species-specific regulations that apply to this experimental population of ferrets.

In the proposed rule published on June 25, 2021 (86 FR 33613), we requested that all interested parties submit written comments on the proposal by August 24, 2021. In addition, in accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and updated guidance issued on August 22, 2016 (USFWS 2016b, entire), we solicited peer review of our proposed rule from six knowledgeable individuals with scientific expertise in ferret ecology and management. We received responses from four peer reviewers. We also contacted appropriate Federal and State agencies, Tribes, scientific experts and organizations, and other interested parties and invited them to comment on the proposal.

We reviewed all comments received from the public, States, Tribes, and peer reviewers for substantive issues and new information regarding the revision of an experimental population of ferrets in Arizona. Substantive comments are addressed in the following summary and have been incorporated into the final rule as appropriate.

Comment: One peer reviewer commented that we should include literature suggesting that other factors that reduce prairie dog numbers and fitness ( e.g., grazing, shooting, poisoning, and drought) may contribute to triggering a plague epizootic.

Response: We added text and cited additional literature accordingly (see “Threats/Causes of Decline” above).

Comment: Two peer reviewers suggested that we update the text to incorporate recent research on SPV.

Response: We added text and cited an additional study accordingly (see “Recovery, Captive Breeding, and Reintroduction Efforts to Date” above).

Comment: One peer reviewer and several commenters asked us to elaborate as to why we consider the reintroduction in the AVEPA successful, considering the recent decline in ferret numbers. Three commenters specifically expressed concerns that current land use practices and drought may have influenced the recent declines in the AVEPA.

Response: The population in the AVEPA increased to a minimum of 123 ferrets in 2012, and the population continues to persist following the subsequent decline. Because land management activities have been relatively consistent in the AVEPA since the first reintroduction in 1996, we conclude that those activities are unlikely to have caused the declines we observed in the AVEPA after 2012. Based on positive tests for plague in the area, plague is the most probable cause for the declines. Plague remains the most significant challenge to ferret population resiliency rangewide, and we will continue to require multiple management tools to lessen its effects on ferret populations. Accordingly, we expect the number of ferrets in each population to fluctuate over time, decreasing during plague outbreaks and increasing when plague is effectively controlled at a site. This scenario emphasizes the importance of having multiple, widely spaced populations to safeguard the species from the widespread chronic effects of plague as well as other periodic or random disturbances that may result in decreased population size or the loss of a population in one or more given areas.

Comment: Several commenters requested that we expand the experimental population area to include all of New Mexico, because potential habitat occurs there. Another commenter inquired about our inclusion of a portion of New Mexico.

Response: The proposed 10(j) rule included only portions of New Mexico that coincide with Navajo Nation lands. We have clarified this point in the final rule text. We developed the proposed boundary of the SWEPA in close coordination with our partners in Arizona—AZGFD, the Navajo Nation, the Hualapai Tribe, and the Hopi Tribe—to include the areas for which they would manage the field operations of a reintroduced ferret population. We acknowledge that there are other areas in New Mexico, and throughout the ferret's historical range, that may provide new reintroduction opportunities. Legal mechanisms are available to support ferret reintroductions at these sites, including, for example, the 2013 rangewide programmatic SHA and proposal of additional experimental populations under section 10(j). We will identify and apply the appropriate mechanism to reintroduce ferrets on a site-specific basis after close coordination with partners in those areas.

Comment: Two commenters stated that the expansion of the experimental population over such a large area is unnecessary, because that larger area is not needed to meet the guidelines for Arizona specified in the ferret Recovery Plan. One commenter stated that the successful reintroduction at Aubrey Valley resulted in a ferret population in 2012 that exceeded the number of ferrets in the recovery guidelines for Arizona. The other commenter stated that the amount of prairie dog habitat in the AVEPA currently exceeds the amount of habitat in the recovery guidelines for Arizona.

Response: We provided State-specific guidelines in the rangewide Recovery Plan to assist planning needs and encourage broader recovery support across the ferret's historical range. The Recovery Plan states that the downlisting or delisting criteria may be fulfilled if they are met by some configuration other than that in the State-specific guidelines. Moreover, while we have acknowledged the success in Aubrey Valley, the recent decline in the ferret population at that site emphasizes the importance of having multiple, widely distributed populations to safeguard the species from the widespread chronic effects of plague as well as other periodic or random disturbances that may result in the loss of a population in one or more given areas. Establishing additional ferret populations in Arizona will help to ensure Arizona's contribution to the species' recovery over the long term.

Comment: One commenter was concerned that, by not explicitly identifying any specific suitable areas in the proposed rule, the proposed SWEPA is likely including more acreage than necessary for reintroduction.

Response: The SWEPA includes habitats associated with prairie dogs; that is, various grasslands and biotic communities in which grasslands are interspersed. We acknowledge that the entire SWEPA does not consist entirely of habitat suitable for ferrets, and we will reintroduce ferrets only into areas that meet the criteria for reintroductions. In addition to the two active reintroduction areas in the SWEPA, there are four potential reintroduction areas, which will require active management before they can support a ferret population. In addition to these sites, we may identify other reintroduction sites in the SWEPA in the future. Furthermore, the SWEPA includes areas into which ferrets could potentially disperse from a reintroduction site; inclusion of these areas provides regulatory certainty to the landowners and managers in those potential dispersal areas.

Comment: One commenter was concerned that the large area of the proposed SWEPA will mean that ferrets may be introduced anywhere in that area but will not receive actual protections of the ESA.

Response: We have determined that establishing the proposed SWEPA is necessary to achieve widespread landowner support for viable ferret reintroduction projects in Arizona. The biggest hurdle to securing support of ferret reintroductions is overcoming partner fear of liability associated with section 9 prohibitions on take under the ESA. Relaxing section 9 incidental take prohibitions through the flexibilities afforded via section 10(j) of the ESA will facilitate ferret reintroductions throughout the species' range in Arizona. Based on ferret reintroductions at Aubrey Valley/Double O Ranch, existing land use practices can be compatible with ferret recovery. Section 9 prohibitions of the ESA will still apply to intentional or negligent conduct that results in take.

Comment: Four commenters discussed the effects of ferret reintroductions on cattle grazing. Two commenters expressed concern that managing landscapes for ferrets, specifically prairie dog habitat, in other areas has resulted in poorly managed, less resilient ecosystems and are concerned about this happening in the SWEPA, especially in conjunction with drought as an additional stressor. One commenter extended this concern to grazing wildlife in addition to livestock.

Response: Prairie dogs, an important component of grassland ecosystems, are native to the area included within the proposed SWEPA. Managing for prairie dog colonies within the SWEPA will potentially restore beneficial ecosystem functions in managed areas. Prairie dogs positively affect ecosystem processes, resulting in increased soil mixing and nitrogen levels, for example, and affect vegetation composition, resulting in increased habitat heterogeneity on the landscape (Kotliar 1999, p. 178). Research has associated increases in plant nutritional levels and digestibility with prairie dog colonies (Detling and Whicker 1987, pp. 24-25). Livestock grazing occurs in and adjacent to the two established reintroduction sites in Arizona and has been compatible with ferret recovery. Future reintroduction sites will be selected based on their potential to support ferret reintroductions. Landowner and manager participation in activities directed at improving or maintaining habitat capable of supporting a ferret population is strictly voluntary. Prior to a ferret reintroduction, we will work with our partners to conduct outreach to landowners and affected stakeholders. AZGFD has a history of developing good working relationships with the livestock industry, notably landowners of the Aubrey Valley/Double O and Espee Ranch reintroduction sites, to initiate ferret reintroductions and conduct ongoing monitoring and maintenance at those sites.

Comment: One commenter expressed concern that, although agricultural crops do not represent a significant portion of the proposed SWEPA, management for prairie dog colonies could have negative effects on lands used for growing crops.

Response: We, in collaboration with our partners, identify potential reintroduction sites where there is landowner interest, and where current or desired land use practices are compatible with ferrets. Participation is voluntary. If reintroduced ferrets disperse from a reintroduction site, the 10(j) designation will allow for incidental take of ferrets ( e.g., take that could happen from livestock grazing, farming, prairie dog control) in those additional areas in the SWEPA. We, in collaboration with our partners, would coordinate with landowners and managers affected by dispersing ferrets about available options, including voluntary participation in ferret recovery or potential removal of the ferrets from their land.

Comment: One commenter thought it seemed unwarranted to include the area in southeastern Arizona in the SWEPA at this time, because the population of prairie dogs in that area is not native, and it will take many years to establish a stable prairie dog population large enough to support the reintroduction of ferrets in this area.

Response: According to Hoffmeister (1986, p. 194), black-tailed prairie dogs are native to southeastern Arizona and occurred there until approximately 1938. We added this reference to the text within the rule (see “Biological Information” above). AZGFD reintroduced black-tailed prairie dogs in southeastern Arizona and manages those reintroductions. Though these prairie dog populations are currently too small to support a ferret population, we included the black-tailed prairie dog historical range in southeastern Arizona in the proposed SWEPA to increase opportunities for potential future ferret reintroductions.

Comment: One commenter pointed out that we state the total number of reintroduction sites as both 29 and 30 in different places in the proposed rule.

Response: We currently consider the Conata Basin/Badlands as 1 site; thus, we referenced 29 reintroduction sites in the proposed rule. In another place in the proposed rule, we inadvertently counted the Conata Basin/Badlands site as two sites. We initiated two additional reintroduction sites in 2021 that we had not included in the proposed rule. We thus modified the text in this final rule to state the number of currently active sites as 31.

Comment: One commenter stated that our determination that enzootic plague caused the ferret declines in the AVEPA is not wholly accurate and asked us to remove the reference to plague as the cause of the decline until we have information that is more conclusive.

Response: The ferret population in the AVEPA was increasing through 2012 when 123 breeding adults were documented. However, following 2012, the population has declined, despite consistent site management practices. Because of this and the recent detection of plague in coyotes and badgers in the Aubrey Valley, plague is the most likely cause of ferret decline in the AVEPA.

Comment: AZGFD requested that we include that the primary purpose of some of the ferrets released in Aubrey Valley was to place excess kits from propagation facilities, and the primary purpose for the ferrets we released at Double O Ranch was for research purposes. Response: We adjusted the text accordingly in this final rule (see “Experimental Population Regulation Requirements” above).

Comment: One commenter asked about benefits to landowners that participate in ferret reintroductions and specifically asked about financial compensation. Another commenter expressed that financial compensation to participating landowners would improve the ferret reintroduction program.

Response: While the 10(j) rule does not describe a specific plan to compensate participating landowners, governmental and nongovernmental organizations have provided incentives to Tribes and private landowners associated with some ferret reintroductions in the past. Site-specific management plans will include details of any applicable compensation programs.

Comment: Three commenters expressed concerns that the large area of the SWEPA would expand the regulatory area and put more regulatory burden and potential penalties under the ESA on landowners. One commenter specifically expressed concern that a landowner without an SHA would experience increased regulatory burden if a ferret dispersed onto their property from an adjacent reintroduction site.

Response: The AVEPA reduced regulatory requirements by allowing most incidental take of ferrets. Applying the 10(j) rule to the SWEPA benefits the landowners within the entire SWEPA by providing them the same regulatory certainty and flexibilities of the existing programmatic SHA but without having individually to enroll their land in the SHA. If reintroduced ferrets disperse from a reintroduction site, the 10(j) designation will allow for incidental take of ferrets ( e.g., take that could happen from livestock grazing, farming, prairie dog control) in those additional areas in the SWEPA. We, in collaboration with our partners, would also coordinate with landowners affected by dispersal about available options, including voluntary participation in ferret recovery or potential removal of the ferrets from their land.

Comment: One commenter recommended that we retain the option for private landowners to enter into SHAs if they chose to assist in ferret recovery efforts.

Response: SHAs are compatible with 10(j) populations. Private landowners are not required to terminate an existing SHA, and new certificates of inclusion for the current programmatic SHA are not prohibited. SHAs remain an option for participating landowners; however, there are no significant differences between the terms and conditions of the SHA and 10(j) regulations related to how landowners operate their lands with respect to ferret recovery.

Comment: Two commenters stated that we should reintroduce ferrets to a site only after consent of all affected landowners, including landowners adjacent to and in the ferret dispersal range of a reintroduction site.

Response: Reintroduction sites are selected based on their potential to support ferret reintroductions and where there are willing landowners and managers. Prior to a ferret reintroduction, we will work with our partners to conduct outreach to landowners and affected stakeholders. The SWEPA includes areas into which ferrets could potentially disperse from a reintroduction site. We, in collaboration with our partners, will coordinate with landowners and managers affected by dispersing ferrets about available options, including voluntary participation in ferret recovery or potential removal of the ferrets from their land.

Comment: Two commenters stated that management for prairie dogs or ferret reintroductions on Federal land should occur only with the consent of grazing permittees using those lands. One commenter suggested that we set limits to livestock grazing on public lands.

Response: We will coordinate with other Federal agencies to support ferret reintroductions in ways that are compatible with their missions. Federal land management agencies have their own laws, policies, and regulations outlining how they manage lands under their authorities.

Comment: One commenter stated that the proposed rule clearly identifies and considers prairie dog control methods in Arizona, but fails to do so for New Mexico and Utah, and is concerned that establishing the 10(j) rule will ultimately lead to new and challenging conflicts between Federal and State authorities.

Response: The area of the proposed SWEPA that extends into New Mexico and Utah is entirely within the Navajo Nation. The Navajo Nation manages wildlife resources within their boundaries independent of the States. We did not propose to include any land in New Mexico or Utah outside of the Navajo Nation.

Comment: Several commenters expressed concern about negative effects of livestock grazing to prairie dog populations. One commenter specifically requested that the final EA include additional information about the effects of livestock grazing on prairie dog colonies and ferret reintroductions.

Response: We have considered the effects that livestock grazing, and other activities may have on establishing an experimental population of ferrets. Livestock grazing became a significant feature on the Arizona landscape in the 1880s and peaked in intensity around the late 1890s and early 1900s (Milchunas 2006, p. 7). Grazing in arid and semiarid areas can alter species composition and communities, disrupt ecosystem functions, and alter ecosystem structure (Fleischner 1994, p. 631). Despite these effects, prairie dogs remained prominent on rangelands in Arizona during the period of heaviest grazing and did not begin declining until the time of systematic prairie dog eradication programs (Oakes 2000, pp. 169-171). Available literature reveals a wide range of potential effects of livestock grazing on ecosystems and considers some negative and some beneficial (Milchunas 2006, entire; Jones 2000, entire). Effects vary with site-specific characteristics and management, including habitat type, grazing intensity, and history of grazing (Milchunas 2006, entire; Jones 2000, entire; Milchunas and Lauenroth 1993, entire). The long history of prairie dog persistence with livestock grazing in Arizona and persistence of ferrets at the AVEPA lead us to conclude that livestock grazing and ranching activities can be compatible with maintaining occupied prairie dog habitat capable of supporting ferrets. We added text in this final rule to support this conclusion (see “How Will the Experimental Population (SWEPA) Further the Conservation of the Species?” above). We do not evaluate effects of livestock grazing outside of the context of ferret reintroductions, because that consideration is beyond the scope of the evaluation necessary to establish an experimental population. In the draft EA, we do not evaluate the effects of livestock grazing on the affected environment, because the NEPA process requires us to consider the consequences of our proposed action. Livestock grazing currently occurs in the proposed SWEPA and is not part of our proposed action.

Comment: One commenter stated that we did not define “well-managed grazing” in the proposed rule or elsewhere and noted that some of the references we cited described “an overgrazed condition.” The commenters asked that we clarify what we consider “well-managed grazing.”

Response: The terminology “well-managed grazing” and “overgrazing” that we used and cited in the proposed rule was qualitative and relative. We have edited the text in this final rule not to rely on terms describing relative grazing intensity. The effects of livestock grazing on prairie dog populations and their habitat are complicated and depend on the habitat quality and quantity and other conditions at each specific site. Based on the persistence of ferrets at Aubrey Valley/Double O Ranch, rangelands managed for livestock grazing can support prairie dog populations. Prior to introducing ferrets in the SWEPA, we will assess prairie dog populations to determine if the site will support a ferret population.

Comment: One commenter stated that we should not require the removal of ferrets that leave the experimental population area, because such dispersal would further species recovery.

Response: The SWEPA includes all potential ferret habitat within Arizona and the Navajo Nation, excluding the Hopi Villages in District 6. All currently identified potential reintroduction sites within the SWEPA are far from the borders of the SWEPA. Thus, we expect ferret dispersal outside of the SWEPA to be unlikely. In the unlikely event that a ferret occurs outside of the SWEPA, regardless of origin, we will work closely with affected landowners and managers to ensure that we develop applicable conservation measures cooperatively and to the benefit of landowners, managers, and ferrets. The rule allows for, but does not require, removal of ferrets outside of the SWEPA.

Comment: One commenter stated that reintroduction efforts should be primarily focused on how best to manage plague in prairie dog populations, not only regarding the effects on ferret reintroduction, but also to other species in the area and local communities. Another commenter stated that the rule should include proactive measures to bring potential reintroduction sites into the condition necessary to host ferret populations of sufficient size and resilience to contribute towards recovery. This commenter further stated that the rangewide decline in the ferret population since about 2007 “appears to be that reintroduction sites are generally too small to support ferret populations through plague outbreaks.”

Response: Plague management is currently, and will continue to be, a management focus at existing and potential future ferret reintroduction sites, which will also benefit other species and local communities. The factors responsible for the eruption of epizootics and the maintenance of enzootic plague are currently not fully understood; research has identified multiple influential factors (USFWS 2019, p. 17). Because plague may persist in an enzootic state at several existing and potential reintroduction sites, and the social nature of prairie dogs facilitates plague transmission, larger colony size is not a safeguard against the spread of plague. A more effective strategy now is having multiple, widely spaced populations to buffer plague transmission.

Comment: One commenter seemed to interpret the purpose of ferret reintroduction as a form of prairie dog control.

Response: Our responsibility under the ESA is to conserve threatened and endangered species and the ecosystems upon which they depend. Our purpose in establishing the SWEPA is to promote the recovery of the ferret by establishing viable ferret populations. Viable ferret populations depend on persistent prairie dog populations. We are willing to work with landowners and managers amenable to maintaining prairie dog populations on their property to support a reintroduced ferret population. Outside of reintroduction areas, we, in collaboration with our partners, will work with landowners to avoid or minimize any adverse effects to ferrets that could occur from prairie dog control.

Comment: One commenter stated that the proposed rule understated the effects of current prairie dog poisoning. The commenter specifically pointed out that we list prairie dog poisoning as a concern in the Recovery Plan and recommended more protective regulations to improve opportunities for ferret reintroductions.

Response: The Recovery Plan describes the historical effect of poisons on the decline of prairie dogs and ferrets and assesses the effects of prairie dog poisoning to ferrets rangewide. The current use of poison to control prairie dogs is much reduced from historical use, and the current level of threat varies across the ferret's range. In the proposed rule, we considered the threat of prairie dog poisoning to ferrets in Arizona and concluded that prairie dog poisoning within the State is relatively minimal compared to historical use. For example, black-tailed prairie dogs were extirpated from southeastern Arizona by the late 1930's due to widespread indiscriminate poisoning for all small burrowing mammals (Hoffmeister 1986, p. 196). Comparatively, from 2013 through 2019, the Animal and Plant Health Inspection Service's (APHIS) Wildlife Services treated prairie dogs with zinc phosphide at three private properties totaling 56 ac (23 ha) of prairie dog colonies (C. Carrillo, pers. comm., APHIS, October 23, 2019). In addition, the poisons that pose the greatest risk to ferrets, anticoagulants, are banned in Arizona. Other poisons have the potential to affect ferrets by affecting prairie dog populations. In past ferret reintroductions in Arizona, we worked with partners to identify landowners and managers willing to manage prairie dogs on their properties for ferrets. We will take a similar approach for future ferret reintroductions.

Comment: Three commenters expressed concerns about the effects of shooting on prairie dog populations at ferret reintroduction sites. Two commenters thought that we had not adequately considered the effects of prairie dog shooting. One commenter mentioned specific research about the effects of shooting on prairie dog populations and requested that the EA incorporate that research. All three commenters asked for increased restrictions on prairie dog shooting to support ferret reintroductions. One commenter additionally expressed concern about potential lead poisoning from shooting prairie dogs.

Response: We considered the potential for effects of prairie dog shooting on ferret reintroductions in the SWEPA in this 10(j) rule. We referenced relevant studies about effects of shooting on prairie dog populations (see “ Actions and Activities that May Affect the Introduced Population ”). These effects vary across sites and with intensity of shooting. Based on current prairie dog monitoring data, we do not think that shooting is having substantial population-level effects on prairie dogs in established reintroduction sites in the SWEPA or in the potential reintroduction sites that are being monitored. Prairie dog monitoring will inform the suitability of a potential ferret reintroduction site and indicate whether additional management is needed to maintain prairie dog populations in support of ferrets. AZGFD regulates prairie dog hunting in most of Arizona, and as described in their Management Plan, they may close areas to prairie dog hunting at ferret reintroduction sites if monitoring shows a greater than 15 percent decline in prairie dog occupied acreage over a 3-year period. Tribes regulate prairie dog hunting on their respective lands. To the extent requested, we will assist any Tribe interested in reintroducing ferrets to address prairie dog management at potential reintroduction sites.

We did not evaluate the effects of prairie dog shooting on ferrets in the EA, because that type of a consideration is outside of the scope of an EA (40 CFR 1501.5). In the EA we are required to evaluate how the proposed action will affect the condition of the proposed SWEPA. In our evaluation of the social and economic conditions, we considered the effects of the proposed action to natural resource-based recreation, including prairie dog shooting.

While lead contamination is a potential threat resulting from prairie dog shooting, we have not documented any lead poisoning of ferrets. This species may be less susceptible to chronic lead poisoning than are longer lived predators (Pain et al. 2009, p. 107).

Comment: One commenter stated that our discussion of environmental consequences in the EA should include Tribal prairie dog shooting regulations in addition to the State regulations we included.

Response: As sovereign nations, each Tribe has the authority to regulate hunting on their lands. When reintroduction sites contain Tribal land, we do and will work with Tribes to ensure that measures to manage prairie dogs are compatible with ferret reintroductions.

Comment: One commenter asked about the extent to which ferret prey bases are being sustained by supplemental feeding, a strategy listed in AZGFD's Management Plan.

Response: AZGFD lists prairie dog supplemental feeding as a potential management strategy for specific circumstances; it is not a long-term strategy (AZGFD 2016, p. 15). We will reintroduce ferrets only at sites that have demonstrated persistent prairie dog populations at levels necessary to support ferrets.

Comment: One commenter asked that we address the potential threat of feral dogs to ferrets.

Response: Prior to a ferret reintroduction, we will assess potential site-specific threats. We expect feral dogs to pose a similar threat at ferret reintroduction sites as do coyotes. Coyote predation was a concern at early ferret reintroduction sites. Increased preconditioning of captive-born ferrets through outdoor pen rearing in recent years facilitates learning of important natural predator-avoidance behaviors and has led to increased survival rates following ferret releases into the wild (Biggins et al. 1998, pp. 647-648). In addition, like coyotes, feral dogs are a potential carrier of disease. We vaccinate all ferrets for canine distemper before reintroductions, continue disease management at all reintroduction sites, and expect that our current practices would minimize the potential threat that feral dogs, like coyotes, may pose at a reintroduction site.

Comment: One commenter suggested that we need to assess the effects of land management activities ( e.g., livestock grazing, off-highway vehicle use, and other recreational activities) at black-tailed prairie dog sites.

Response: Currently, the SWEPA does not contain enough occupied black-tailed prairie dog habitat to support a ferret reintroduction. Management may increase black-tailed prairie dogs in the future. When a black-tailed prairie dog population becomes large enough to support a ferret reintroduction, we will assess the threats to a ferret population and address those threats in a site-specific management plan.

Comment: One commenter expressed concern about effects of human-wildlife interactions on ferrets and pointed out the lack of data informing appropriate distances between ferret populations and human residential areas.

Response: We are not aware of effects of a reintroduction site's proximity to a human residential area on ferrets. Reintroduction sites are typically relatively remote and distant from large residential developments. The potential reintroduction sites identified in the proposed SWEPA are not within or adjacent to areas with high human densities.

Comment: One commenter stated that the 10(j) rule should commit to proactive management measures to bring potential reintroduction sites into the condition necessary to support ferret populations of sufficient size and resilience to contribute towards recovery.

Response: The establishment of the SWEPA to support future reintroductions promotes ferret recovery. Existing management plans or plans we develop in cooperation with our partners and stakeholders will guide management of ferret populations at individual reintroduction sites in the SWEPA. We remain committed to working with partners to encourage and implement proactive prairie dog management at current and potential reintroduction sites within the SWEPA.

Comment: One commenter, in response to a statement about the negative consequences of fragmented prairie dog colonies in the preamble of the proposed rule under “Ecology/Habitat Use/Movement”, stated: “An argument could be made that black-footed ferret populations that are associated with Gunnison's prairie dogs, which are extremely fragmented and less dense than black-tailed prairie dogs, could be more resilient to stochastic events than what is inferred.”

Response: The less dense spatial distribution of Gunnison's prairie dogs could increase resiliency by buffering the population against the spread of plague and other stochastic events. However, prairie dog colonies that exist in smaller, isolated configurations are likely to have reduced resiliency because the smaller populations are more vulnerable to extirpation, and the isolation limits immigration and genetic exchange. We changed the wording in this final rule to clarify our description of the spatial distribution of prairie dog habitat (see “Threats/Causes of Decline” above).

Comment: One commenter suggested that we add “availability of prey” as a factor influencing ferret dispersal in our discussion of “Actual or Anticipated Movements.”

Response: We edited the text accordingly in this final rule. We previously incorporated prey into our consideration of habitat in the proposed rule, however, we agree that explicitly identifying it in our discussion of actual or anticipated movements improves clarity.

Comment: One commenter asked what the estimated sustained population level is for the ferret.

Response: The Recovery Plan identifies the number of populations necessary rangewide to downlist the ferret from endangered to threatened and to remove the ferret from listing under the ESA: at least 10 and at least 30 populations, respectively. The Recovery Plan criteria indicate that each of those populations consist of at least 30 breeding adults, and it details our methodology for establishing these criteria. We expect the number of ferrets in each population to fluctuate over time, decreasing during plague outbreaks and increasing when plague is effectively controlled at a site. This assumption emphasizes the importance of having multiple, widely spaced populations to safeguard the species from the widespread chronic effects of plague as well as other periodic or random disturbances that may result in the loss of a population in one or more given areas.

Comment: Two commenters noted the discrepancy between the acreage of Gunnison's prairie dog habitat identified by the USFWS and AZGFD needed to support a ferret population: 7,415 and 5,540 ac (3,000 and 2,242 ha), respectively. One commenter expressed concern that this discrepancy has implications for reducing the success of reintroductions.

Response: The two different numbers identified by us and AZGFD represent two different estimates, not requirements, of the amount of Gunnison's prairie dog habitat needed to support a ferret population. The USFWS acknowledges in this final rule that the actual amount of prairie dog habitat needed will vary across the ferret's range. We allocate ferrets for reintroductions based on the best information available about the proposed site. While this information includes the total acreage of prairie dog habitat, we also consider other site-specific factors to assess a site's overall ability to support a ferret population. We have edited the text in this final rule to clarify that these numbers are estimates, and not requirements, to guide ferret reintroduction site selection (see “Experimental Population” above).

Comment: One commenter stated that the USFWS cannot make an essentiality determination for a proposed 10(j) population if there is no specific proposed reintroduction. The commenter further stated that, even if making a determination were appropriate, the proposed rule failed to justify a nonessential designation for the SWEPA, because we did not adequately address the species' viability in the wild or consider the status of other ferret populations in the wild.

Response: When we authorize the reintroduction of an endangered species outside of its current range as an experimental population, we are required to make a finding, based solely on the best scientific and commercial data available, and the supporting factual basis, on whether the experimental population is, or is not, essential to the continued existence of the species in the wild. We are not required by either the ESA or applicable regulations to postpone making this determination until we have made a decision regarding a “specific proposed reintroduction.” We have made the essentiality determination in this rule in accordance with the ESA and applicable regulations. We have addressed species' viability in the wild across its range to make an essentiality determination for the proposed SWEPA. We used the conservation biology principles of resiliency, redundancy, and representation to assess current and future species viability (Shaffer and Stein 2000, entire) in our SSA (USFWS 2019, pp. 43-83); we summarize that assessment in the “Is the Experimental Population Essential or Nonessential?” portion of the preamble to the proposed rule.

Given the current and anticipated future numbers of ferret populations and their distribution in the wild, there is no indication that populations established in the SWEPA could be described as those “whose loss would be likely to appreciably reduce the likelihood of survival of the species in the wild.” Loss of the SWEPA would not affect the remaining populations of ferrets in the wild. For these reasons, a nonessential determination for the SWEPA is valid. Additionally, captive-breeding efforts continue to support the establishment of more populations throughout the species' range.

Comment: One commenter stated that the draft EA fails to disclose that all the reintroduced ferret populations are listed as 10(j) nonessential and that the USFWS cannot rely on other “nonessential” populations to designate the SWEPA population as nonessential.

Response: Not all the ferret populations in the wild are nonessential experimental populations; we have used a variety of other regulatory mechanisms, including section 10(a)(1)(A) permits and SHAs, to reintroduce ferrets. Of the 18 currently active ferret reintroduction sites, 5 are nonessential experimental populations. The remainder occur under section 10(a)(1)(A) permits and SHAs. In 2019, active reintroduction sites were evaluated in the SSA; two were considered to be in high-resiliency condition and eight to be in moderate-resiliency condition (USFWS 2020, pp. 63-64). All the aforementioned regulatory mechanisms remain available to facilitate future ferret reintroductions across the species' range. Subpart H, part 17, of title 50 of the Code of Federal Regulations does not limit consideration of any population of a species when making an essentiality determination and requires an evaluation of the species as a whole, including all populations captive and wild.

Comment: One commenter expressed concern that we made our essentiality determination out of convenience to landowners and managers. The commenter specifically cited text in the proposed rule: We prefer applying the experimental population designation and regulations to the entire proposed SWEPA, because a single set of statutes and regulations and a single management framework would then apply to all lands, non-Federal and Federal, containing potential ferret habitat within the designated SWEPA boundary.

Response: The cited text is from the portion of the preamble pertaining to management restrictions, protective measures, and other special management and not from the portion pertaining to whether the proposed experimental population is essential or nonessential. We did not consider the cited text within the context of our essentiality determination. Rather, the cited text refers to the use of a single regulatory mechanism, the 10(j) rule, rather than multiple regulatory or permitting mechanisms, within the SWEPA.

Comment: One commenter expressed concern that “a broad nonessential designation divests Federal land managers of important tools to protect the species, including the obligation to formally consult to prevent jeopardy under ESA section 7(a)(2), and the ability to designate critical habitat.” The commenter expressed concern that there would never be an obligation to evaluate the potential for cumulative management actions to result in jeopardy.

Response: Under 50 CFR 17.83(a), for the purposes of section 7 of the ESA, we treat a nonessential experimental population as if it were a threatened species when located in a National Wildlife Refuge or unit of the National Park Service (NPS), and Federal agencies follow conservation and consultation requirements per sections 7(a)(1) and 7(a)(2) of the ESA, respectively. We treat nonessential experimental populations outside of a National Wildlife Refuge or NPS unit as species proposed for listing, and Federal agencies follow the provisions of sections 7(a)(1) and 7(a)(4) of the ESA. Section 7(a)(4) requires Federal agencies to confer with us on actions that are likely to jeopardize the continued existence of a species proposed to be listed. Because the nonessential experimental population is, by definition, not essential to the continued existence of the species in the wild, the effects of proposed actions on the population will generally not rise to the level of “jeopardy.” Nonetheless, some Federal agencies voluntarily confer with us on actions that may affect a species proposed for listing. Ferrets were listed under the ESA prior to the 1978 critical habitat amendments; therefore, designation of critical habitat for this species even outside of nonessential experimental population areas is at the discretion of the Secretary (50 CFR 424.12(e); USFWS 2013a, p 13).

Comment: One commenter stated that the EA should consider additional action alternatives, including an alternative that exempts federally managed lands from the SWEPA and an alternative that does not extend nonessential status to federally managed lands in the SWEPA. One commenter noted that, while the EA addresses the need of a 10(j) rule to garner support from private landowners on private lands, it does not specifically analyze the viability of ferret reintroductions on federally managed lands where there are regulatory mandates to further the conservation of imperiled species.

Response: In the EA, we evaluated the alternatives that we think are reasonable and feasible. Future reintroduced ferret populations will likely cross boundaries of land ownership. The potential sites identified in the rule contain private, Federal, State, and Tribal lands. Having a single regulatory mechanism for the entire experimental population will simplify management of the population. We did not consider an alternative that does not extend nonessential status to federally managed land, because land ownership is not a consideration of an essentiality determination.

Comment: One commenter stated that, rather than addressing management in the SWEPA, we deferred to the plan that AZGFD developed specifically for the AVEPA, not the SWEPA.

Response: AZGFD developed their Management Plan for the Black-footed Ferret in Arizona based on the best available science, including information in USFWS documents, such as the Recovery Plan and the Operations Manual, to guide ferret management statewide. We reviewed and commented on the AZGFD's Management Plan in its development, and it complements the USFWS Recovery Plan and the Operations Manual. For potential reintroduction sites on Tribal lands, we will offer our cooperation and assistance in the development of applicable management plans.

Comment: One commenter noted that the draft EA and proposed rule do not set timeframes or other commitments for reintroductions and provide only vague plans for ferret reintroduction in the SWEPA. The commenter further stated that the 10(j) rule must commit to management efforts to ensure successful reintroductions.

Response: Neither section 10(j) of the ESA nor the 10(j) regulations found at 50 CFR 17.81 require the USFWS to set timeframes or other commitments for reintroductions. In the proposed rule, we included the information necessary to identify the experimental population, as required by regulation. The potential reintroduction sites require additional management before site conditions could support a ferret population. We will work with our partners to develop site-specific management plans that include specific details regarding reintroductions, when site conditions can support ferret populations. Identifying these details in the future will allow us to take advantage of future opportunities as they arise. Our regulations require us to consider the likelihood that the experimental population will become established and survive in the foreseeable future but do not require commitment to specific management actions. In the proposed rule, we considered the potential for appropriate management for the ferret and its habitat in Arizona. Given the AZGFD's past commitment to ferret reintroduction and its development of a Management Plan for ferret reintroduction throughout its range in Arizona, and interest from the Hopi Tribe, Hualapai Tribe, and the Navajo Nation in reintroductions of and management for ferrets on their Tribal lands, we have a high level of confidence in implementation of management to support ferret populations in the SWEPA.

Comment: One commenter stated that the proposed rule lacks concrete, enforceable mechanisms to prevent unsustainable levels of take.

Response: Neither the ESA nor the 10(j) regulations found at 50 CFR 17.81 require concrete, enforceable mechanisms to prevent unsustainable levels of take. In accordance with 50 CFR 17.82, we have identified special rules for ferret nonessential experimental populations in 50 CFR 17.84(g). These allow most forms of incidental take of ferrets in the experimental population area, if the take is unintentional and not due to negligent conduct. Intentional and negligent take within the experimental population area is still prohibited and unlawful pursuant to section 9 of the ESA. The persistence of ferrets in the AVEPA/Double O Ranch has demonstrated that these same take provisions for the AVEPA/Double O Ranch have not meaningfully affected that population. We will work with our partners and stakeholders to apply existing management plans or develop site-specific management plans for future reintroduction sites. We addressed the sustainability of the ferret population in the “Likelihood of Population Establishment and Survival” portion of the preamble to the proposed rule.

Comment: One commenter was concerned that the USFWS is abdicating Federal authority of the reintroduction program to AZGFD. The commenter further stated that the rule should make clear that the USFWS holds primary responsibility for ferret recovery, has the authority to conduct and manage reintroductions even when parties such as permittees and State agencies oppose such efforts, and that the USFWS and other Federal agencies are under a constant duty pursuant to ESA section 7(a)(1) to utilize their authority in furtherance of ferret conservation.

Response: The USFWS has in no way abdicated its Federal authority regarding the ferret reintroduction program to AZGFD. Our final 10(j) rule revising the current nonessential experimental population of the black-footed ferrets is a responsible use of our authority under the ESA. Section 6 of the Act specifically states that, in carrying out the programs authorized by the ESA, the Secretary shall cooperate to the maximum extent practicable with the States and that the Secretary may enter into agreements with any State for the administration and management of any area established for the conservation of endangered species or threatened species. The USFWS is active in the management of all current and future potential ferret reintroduction sites. Additionally, we are responsible for allocating captive-bred ferrets and ensuring that reintroduction sites are suitable for supporting ferret populations. Our regulations in 50 CFR 17.81(d) require us to consult with AZGFD in developing and implementing this 10(j) rule, which we have done. This rule, to the maximum extent practicable, represents an agreement between the USFWS, affected Tribes, State and Federal agencies, and persons holding any interest in land that the establishment of an experimental population may affect. The mission of the USFWS directs us to work with others to conserve, protect, and enhance wildlife and their habitats. The USFWS Recovery Plan for the Black-footed Ferret additionally states that the development of partnerships with private landowners and Tribes is essential to recovery of the species.

The AZGFD has demonstrated its commitment to ferret conservation through their long-term active involvement in ferret conservation, including the development of the Management Plan for the Black-footed Ferret in Arizona. AZGFD has also demonstrated a commitment to our scientific understanding of ferret ecology and husbandry techniques and to developing relationships with private landowners essential for ferret conservation. The feasibility of future reintroductions will depend on such relationships with private landowners. Given these factors, we partner with AZGFD on ferret reintroductions on non-Tribal lands in Arizona.

In addition to private lands, all four future potential reintroduction sites identified in the proposed rule include Federal lands. We will coordinate with our Federal partners to use their authorities to further ferret recovery. We will also offer our cooperation and assistance to Tribes in the development of applicable management plans on Tribal lands.

Executive Order 14094 reaffirms the principles of E.O. 12866 and E.O. 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this final rule in a manner consistent with these requirements.

E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq. ), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule or revision to a rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the action on small entities (small businesses, small organizations, and small government jurisdictions). However, these acts require no regulatory flexibility analysis if the head of an agency certifies that the action will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that an action will not have a significant economic impact on a substantial number of small entities. We are certifying that this final rule will not have a significant economic effect on a substantial number of small entities. The following discussion explains our rationale.

The affected area includes release sites in Arizona, Tribal lands that coincide with Arizona, lands of the Navajo Nation that coincide with Arizona, New Mexico, and Utah, and adjacent areas into which ferrets may disperse, which over time could include significant portions of the SWEPA. Because of the regulatory flexibility for Federal agency actions provided by the nonessential experimental designation and the exemption for incidental take in the special rule, this rule is not expected to have significant effects on any activities on Federal, State, Tribal, or private lands in the revised area. Concerning section 7(a)(2), we treat the population as proposed for listing outside of NPS and USFWS-managed National Wildlife Refuge lands, and we do not require Federal action agencies other than NPS and USFWS National Wildlife Refuges to consult with us on their activities. Section 7(a)(4) requires other Federal agencies to confer (rather than consult) with the USFWS on actions that are likely to jeopardize the continued existence of a species proposed for listing. However, because a nonessential experimental population is, by definition, not essential to the survival of the species, we will likely never require a conference for the ferret populations in the SWEPA. Furthermore, the results of a conference are advisory in nature and do not restrict Federal agencies from carrying out, funding, or authorizing activities. In addition, section 7(a)(1) requires Federal agencies to use their authorities to carry out programs to further the conservation of listed species, which will apply on any lands in the revised area. As a result, and in accordance with these regulations, some modifications to proposed Federal actions in the SWEPA may occur to benefit the ferret, but we do not expect implementation of these regulations to halt or substantially modify proposed projects.

This revision includes the same authorizations provided in the AVEPA for incidental take of the ferret but over a larger landscape, the SWEPA. The regulations implementing the ESA define “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity such as agricultural activities and other rural development, camping, hiking, hunting, vehicle use of roads and highways, and other activities that are in accordance with Federal, Tribal, State, and local laws and regulations. This rule does not authorize intentional take of ferrets for purposes other than authorized data collection or recovery purposes. Intentional take for research or recovery purposes would require a section 10(a)(1)(A) recovery permit under the ESA.

The principal activities on private property in or near the revised nonessential experimental population area are livestock grazing and associated ranch management practices ( e.g., fencing, weed treatments, water developments, and maintenance). Ferret presence will not affect these land uses because there will be no new or additional economic or regulatory restrictions imposed upon States, non-Federal entities, or members of the public due to the presence of the ferret, and Federal agencies will have to comply with sections 7(a)(1) and 7(a)(4) of the ESA only in these areas. Therefore, we do not expect this rulemaking to have any significant adverse impacts to activities on private lands in the SWEPA.

In accordance with this act:

(1) This rule will not “significantly or uniquely” affect small governments because it will not place additional requirements on any city, county, or other local municipalities. The USFWS determined that this rule will not impose a cost of $100 million or more in any given year on local or State governments or private entities. Therefore, this rule does not require a small government agency plan.

(2) This rule is not a “significant regulatory action” under this act; it will not produce a Federal mandate of $100 million or more in any year. The revised nonessential experimental population area for the ferret will not impose any additional management or protection requirements on the States or other entities.

In accordance with E.O. 12630, this rule does not have significant takings implications. It allows for the take, as defined in the ESA, of reintroduced ferrets when such take is incidental to an otherwise legal activity, such as livestock grazing, agriculture, recreation ( e.g., off-highway vehicle use), and other activities that are in accordance with law and regulation. Therefore, the revision of the AVEPA to encompass a larger area, the SWEPA, will not conflict with existing or proposed human activities or hinder public land use.

This order does not require a takings implication assessment because this rule: (1) will not effectively compel a property owner to suffer a physical invasion of property, and (2) will not deny economically beneficial or productive use of the land. The rule substantially advances a legitimate government interest (conservation and recovery of a listed species) and does not present a barrier to reasonable and expected beneficial use of private property.

In accordance with E.O. 13132, we have considered whether this rule has significant federalism effects and determined we do not need to conduct a federalism assessment. It does not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. In keeping with Department of the Interior policy, we requested information from and coordinated development of this rule with the affected resource agencies. Achieving the recovery goals for this species would contribute to the eventual delisting of the ferret and its return to State management. We do not expect any intrusion on State administration or policy, change in roles or responsibilities of Federal or State governments, or substantial direct effect on fiscal capacity. The rule operates to maintain the existing relationship between the State and the Federal Government, and we will implement it in coordination with the State of Arizona. Therefore, this rule does not have significant federalism effects or implications to warrant preparation of a federalism assessment under the provisions of E.O. 13132.

In accordance with E.O. 12988, the Office of the Solicitor has determined that this rule will not unduly burden the judicial system and will meet the requirements of sections (3)(a) and (3)(b)(2) of the Order.

This rule does not contain any new collection of information that requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). OMB has previously approved the information collection requirements associated with reporting the taking of experimental populations (50 CFR 17.84) and assigned control number 1018-0095 (expires 09/30/2023, and in accordance with 5 CFR 1320.10, an agency may continue to conduct or sponsor this collection of information while the submission is pending at OMB). The USFWS may not collect or sponsor and may not require response to a collection of information unless it displays a currently valid OMB control number.

In compliance with all provisions of the National Environmental Policy Act of 1969 (NEPA), we have analyzed the impact of this final rule. In cooperation with the AZGFD, the Hopi Tribe, Hualapai Tribe, and the Navajo Nation, we have prepared an environmental assessment and a FONSI for this action and have made them available for public inspection (see ADDRESSES ).

In accordance with the Executive Memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951, May 4, 1994), E.O. 13175 (65 FR 67249, November 9, 2000), and the Department of the Interior Manual Chapter 512 DM 2, we have considered possible effects of this rule revision on federally recognized Indian Tribes. We determined that the SWEPA overlaps or is adjacent to Tribal lands. Potential reintroduction sites identified in this revision, the CO Bar Ranch and Petrified Forest National Park, are near or adjacent to Tribal lands, as is the existing AVEPA where a reintroduced ferret population exists. We offered government-to-government consultation to nine Tribes: the Havasupai, Hopi, Hualapai, San Carlos Apache, San Juan-Southern Paiute, White Mountain Apache, and Yavapai-Prescott Tribes, Navajo Nation, and the Pueblo of Zuni. We met with the Hualapai, Hopi, and White Mountain Apache Tribes and the Navajo Nation about the proposed revision. Participation in ferret recovery is voluntary. If suitable habitat for ferret recovery is available on their lands, Tribes may choose either not to participate, or to participate through authorities under section 10(j), section 10(a)(1)(A), or the SHA (USFWS 2013b, entire). If we introduce ferrets onto non-Tribal lands adjacent to Tribal lands and any ferrets disperse onto Tribal lands, the aforementioned authorities will provide more regulatory flexibility under the ESA through allowances for incidental take.

E.O. 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. We do not expect this rule to have a significant effect on energy supplies, distribution, and use. Because this action is not a significant energy action, this order does not require a statement of energy effects.

A complete list of all references cited in this final rule is available online at https://www.regulations.gov at Docket Number FWS-R2-ES-2020-0123, or upon request from the Arizona Ecological Services Field Office (see ADDRESSES and FOR FURTHER INFORMATION CONTACT ).

The primary authors of this rule are staff members of the USFWS Arizona Ecological Services Field Office (see ADDRESSES and FOR FURTHER INFORMATION CONTACT ).

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

What this document does. This rule lists the Lassics lupine as an endangered species, and designates critical habitat for the 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 Lassics lupine is endangered primarily due to woody vegetation encroachment, pre-dispersal seed predation, fire, and reduced soil moisture due to drought associated with ongoing climate change.

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

Please refer to the October 6, 2022, proposed rule (87 FR 60612) for a detailed description of previous Federal actions concerning the Lassics lupine.

A species status assessment (SSA) team prepared an SSA report for the Lassics lupine. 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 and recovery actions under the Act (16 U.S.C. 1531 et seq. ), we solicited independent scientific review of the information contained in the SSA report. As discussed in the proposed rule (87 FR 60612; October 6, 2022), we sent the SSA report to four independent peer reviewers and received four responses. The peer reviews can be found at https://www.regulations.gov and https://www.fws.gov/species/lassics-lupine-lupinus-constancei. In preparing the proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which serves as the foundation for the proposed rule and this final rule. A summary of the peer review comments and our responses can be found under Summary of Comments and Recommendations, below.

Since the October 6, 2022, proposed rule was published, additional monitoring data were collected and analyzed. We incorporated these population surveys into the SSA report and added the new information to this final rule. To assess the current condition of the two populations of Lassics lupine, we now use the most recent 7 years of data (instead of 5 years of data). Numbers in two of four analysis units increased in 2021 relative to 2020, while two of four analysis units declined in 2022 relative to 2021. Overall, the average number of plants rangewide declined from 1,000 to 800 between 2020 and 2022 (Carothers 2022, entire). Under Available Conservation Measures, below, we both (1) clarify which types of vegetation management would not result in a violation of section 9, and (2) remove mention of herbicide use, given that we conclude that herbicide use could impact the species.

We have otherwise made minor editorial corrections, but no substantive changes, to the October 6, 2022, proposed rule (87 FR 60612) in this final rule.

In the proposed rule published on October 6, 2022 (87 FR 60612), we requested that all interested parties submit written comments on the proposal by December 5, 2022. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Times-Standard. We did not receive any requests for a public hearing. All substantive information we received during the comment period has either been incorporated directly into this final determination or is addressed below.

As discussed in Peer Review, above, we received comments from four peer reviewers on the draft SSA report. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the information contained in the SSA report. The peer reviewers generally concurred with our methods and conclusions with two exceptions (addressed below in our response to comments). They also offered suggestions and clarifications to improve our descriptions of the species' ecology and threats, and our assessments of current and future conditions. We incorporated all feedback we received from the peer reviewers to improve the accuracy and readability of the final SSA report. Peer reviewer comments are addressed in the following summary and were incorporated into the SSA report as appropriate.

(1) Comment: Two reviewers thought that our categories describing canopy cover were not accurate and did not capture the nuance of individual needs between sites.

Our response: We revised the description for each condition category to better reflect this nuance. Some sites need higher canopy cover to protect from higher amounts of solar insolation, while other sites need less canopy cover based on localized orographic shade. Instead of categorizing canopy cover as qualitative, we instead use a more quantitative description suggested by one peer reviewer.

(2) Comment: One reviewer thought our future scenario assessments might be overly optimistic given recent mild weather conditions and changes to canopy cover that might not have been fully realized in current population trends. Another reviewer indicated that given what we know about the correlation of climate and demographic rates, there would be lower population growth rates, meaning we were overly optimistic in our characterization of future scenarios.

Our response: We considered these comments and revisited our future scenario analysis. We changed the future condition categories to better reflect the plausible future conditions. This resulted in all four population conditions for future scenario 1 being lower than in the previous version (for example, the condition of the Red Lassic decreased from low to very low).

(3) Comment: One reviewer asked why we had not included a future scenario that includes representative concentration pathway (RCP) 8.5 and caging continued at current levels. This reviewer also requested more information in general on how we selected our scenarios.

Our response: The future scenarios are meant to capture the range of plausible future conditions, bounded by the most optimistic plausible scenario and the most pessimistic plausible scenario, with the idea being that all plausible future conditions would be captured in that range. The scenarios we selected for the SSA report meet those criteria. The combination of RCP 8.5 and current caging levels is captured in the range of future scenarios chosen.

We did not receive any comments during the October 6, 2022, proposed rule's comment period from Tribes or from State or Federal agencies.

We received six public comments during the October 6, 2022, proposed rule's comment period; five of these are directly related to the proposed rule. All five of the comments related to the proposed rule support our proposed listing and critical habitat designation for the Lassics lupine. We reviewed all comments we received for substantive issues and new information regarding the proposed rule. None of the comments we received include new information concerning the listing of, or the critical habitat designation for, the Lassics lupine. Because none of the public comments we received provide any new or substantial information or poses questions to be addressed, they do not warrant an explicit response in this rule.

A thorough review of the taxonomy, life history, and ecology of the Lassics lupine ( Lupinus constancei ) is presented in the SSA report (version 1.2; Service 2023, pp. 11-18).

The following species description is largely paraphrased from the original species description and the Jepson Manual, 2nd edition (Nelson and Nelson 1983, entire; Baldwin et al. 2012, pp. 772-775). Lassics lupine is a tap-rooted, herbaceous perennial that grows to a height of less than 15 centimeters (cm) (6 inches (in)) from a short, slightly woody stem. The leaves and stem are covered in relatively long, shaggy hairs, and the plant is cespitose (growing close to the ground). Like other plants in the genus Lupinus, the leaves are palmately compound and generally clustered around the base.

Like other flowers of the family Fabaceae (legumes), the flowers of Lassics lupine are pea-like and composed of five unique petals. The flowers are pink and white with some variation between the individual petals. The flowers are arranged in a dense inflorescence called a raceme, meaning individuals flowers emerge on short stalks (pedicel) along a central axis. Mature plants can produce up to 20 or more inflorescences (clusters of flowers), but they typically produce fewer. Lassics lupine flowers develop into a fruit called a legume that splits in two halves (pods) that produce between one and five seeds, with an average of two seeds per fruit (Kurkjian 2012b, p. 5).

Lassics lupine reproduction occurs entirely through seed, and like many members of the legume family, they exhibit seed dormancy, meaning there is a physical barrier that prevents moisture from entering seeds ( i.e., an impermeable seed coat) (Guerrant 2007, p. 13). This seed coat prevents germination and allows the plant to form a persistent seed bank. This seed coat appears relatively robust upon inspection, and germination trials suggest that scarification (intentionally damaging the seed coat) is necessary for germination to occur in laboratory conditions (Guerrant 2007, p. 14). This suggests that abrasion or other damage to the seed coat is necessary for germination in natural conditions.

It is unknown exactly when the majority of Lassics lupine seeds typically germinate, but it is thought to occur shortly after snow has melted (which is typically between March and May) and temperatures begin to rise. Plants can flower and produce seed within their second year but more often, they take several years to reproduce (California Department of Fish and Wildlife (CDFW) 2018, p. 13; Kurkjian 2012b, entire). Lassics lupine typically blooms from June to July but can start producing flowers as early as May (Baldwin et al. 2012, p. 772).

Lassics lupine may be capable of self-pollination, based on evidence of partial fruit development in flowers that were experimentally hand-pollinated and excluded from pollinator visits (Crawford and Ross 2003, p. 3). However, Lassics lupine is also visited at high rates by three bee species: yellow-faced bumblebee ( Bombus vosnesenskii ), black-tailed bumblebee ( Bombus melanopygus ), and a mason bee species ( Osmia spp.) (Crawford and Ross 2003, p. 2). All three of the bee species appear to be capable pollinators given that they are large enough to trigger the mechanism that releases pollen from the individual flowers, but no pollination experiments have taken place to quantify the rate or efficacy of these pollinator species (Crawford and Ross 2003, p. 3).

Lassics lupine is documented to occur between 1,700-1,800 meters (m) (5,600-5,800 feet (ft)) in elevation around Mount Lassic and Red Lassic on the border of Humboldt and Trinity Counties, California. The species is currently described in two elemental occurrences, or populations, as delineated by the California Natural Diversity Database (CNDDB). CNDDB considers populations to be spatially explicit if they are separated by a 0.4-kilometer (km) (0.25-mile (mi)) interval.

Lassics lupine occurs on or in the vicinity of serpentine soils in the Lassics Mountains, mainly on barren slopes with very shallow soil and low organic matter, or less commonly, near edges of Jeffrey pine ( Pinus jeffreyi ) forests. Most plants occur in areas with little to no tree overstory and can occur on flat or steep slopes with high proportions of gravel or cobble on the surface.

Two populations comprise the total of Lassics lupine occurrences: the Red Lassic and Mount Lassic populations (see figure 1, below). Over the previous 7 years of monitoring, the Red Lassic population has ranged in size from 0 to 320 individuals, and the Mount Lassic population has ranged in size from 59 to 504 individuals. Rangewide totals of adult plants have ranged from fewer than 200 to approximately 1,000 individuals over the previous 7 years of monitoring which includes plants in both populations as well as plants outside of those two populations.

The United States is a member of the Inter-American Tropical Tuna Commission (IATTC), which was established under the Convention for the Establishment of an IATTC signed in 1949 (1949 Convention). The 1949 Convention provides an international agreement to ensure the effective international conservation and management of highly migratory species of fish in the IATTC Convention Area. In 2003, the IATTC updated the 1949 Convention through the adoption of the Convention for the Strengthening of the IATTC Established by the 1949 Convention between the United States of America and the Republic of Costa Rica (Antigua Convention). The IATTC Convention Area, as amended by the Antigua Convention, includes the waters of the EPO bounded by the coast of the Americas, the 50° N and 50° S parallels, and the 150° W meridian.

Fishing for PBF in the EPO is managed, in part, under the Tuna Conventions Act of 1950, as amended (Act), 16 U.S.C. 951 et seq. Under the Act, NMFS must publish regulations to carry out recommendations and decisions of the IATTC in consultation with the Department of State. Regulations implementing conservation and management measures for tuna and tuna-like species in the EPO appear at 50 CFR part 300, subpart C.

On August 5, 2022, the NMFS published a final rule (87 FR 47939) implementing IATTC Resolution C-21-05 (Measures for the Conservation and Management of Pacific Bluefin Tuna in the Eastern Pacific Ocean). That rule established an initial combined catch limit for 2023-2024 of 1,017 mt. Under 50 CFR 300.25(g)(2), that initial catch limit is then either increased by the amount of catch remaining from, or decreased by the amount of catch in excess of, the 2021-2022 biennial catch limit, which was 739 mt. Any increase to the initial 2023-2024 catch limit cannot exceed 37 mt (see § 300.25(g)(2)(i)).

Based on landings data and other information available as of August 22, 2023, 587 mt of PBF were caught by U.S. commercial vessels during the 2021-2022 biennial management period (217 mt in 2021 and 370 mt in 2022). Therefore, in 2023-2024, the catch limit may be increased by 37 mt. Specifically, the 2023-2024 limit is increased from 1,017 to 1,054 mt. During the 2023-2024 biennial management period, the 1 year maximum of 720 mt remains unchanged for 2023. The annual catch limit for 2024 will be announced at the beginning of that year.

Notice of this inseason action that announces the biennial limit has also been posted on the NMFS website: https://www.fisheries.noaa.gov/west-coast/sustainable-fisheries/pacific-bluefin-tuna-commercial-harvest-status.

There is good cause to waive prior notice and an opportunity for public comment on this action under 5 U.S.C. 553(b)(B), as notice and comment would be impracticable, unnecessary, and contrary to the public interest. Under § 300.25(g)(2), NMFS determines the biennial catch limit for 2023-2024 by adjusting the initial catch limit of 1,017 mt to account for any over-harvest or under-harvest from the 2021-2022 biennial catch limit. The regulation provides NMFS with no discretion in setting the 2023-2024 biennial catch limit; therefore, public comment on this action is impracticable, unnecessary, and contrary to the public interest. Moreover, prior notice and an opportunity for public comment was provided when NMFS promulgated the regulation for determining the 2023-2024 biennial catch limit being implemented here. As previously noted, notification of the 2023-2024 biennial catch limit was also provided to the public through posting on the NMFS website.

This action is exempt from review under Executive Order 12866.