The NRC is issuing a revision in the NRC's “Regulatory Guide” series. This series was developed to describe methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, to explain techniques that the staff uses in evaluating specific issues or postulated events, and to describe information that the staff needs in its review of applications for permits and licenses.

The NRC typically seeks public comment on a draft version of a RG by announcing its availability for comment in the Federal Register . However, as explained in NRC's Management Directive (MD) 6.6 “Regulatory Guides,” (ADAMS Accession No. ML22010A233) the NRC may directly issue a final RG without a draft version or public comment period if the changes to the RG are non-substantive. In addition, the NRC considers Revision 5 of RG 1.189 as an Administratively Changed Guide per MD 6.6.

The NRC issued Revision 4 of RG 1.189 on May 28, 2021 (86 FR 28916), to describe an approach that is acceptable to the NRC staff to meet the regulatory requirements in the NRC's regulations governing a civilian nuclear power generating plant's fire protection program. Revision 5 to RG 1.189 is being issued to correct typographic errors that previously appeared in Section 5.3.1.1, “Protection for the Safe-Shutdown Success Path,” in RG 1.189, Revision 4. This section contains two paragraphs that were incorrectly labeled. On page 79 of the RG, the paragraph currently identified as “c” is incorrect, in that, that paragraph is correctly part of item “b.” There is a conforming change where the current “d” should be “c.” In addition, RG 1.189 contains edits to conform with the current template for RGs and fixes to a few reference numbering errors. The changes in Revision 5 are intended to improve clarity and do not substantially alter the staff's regulatory guidance.

As noted in the Federal Register on December 9, 2022 (87 FR 75671), this document is being published in the “Rules” section of the Federal Register to comply with publication requirements under 1 CFR chapter I.

This RG is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

Issuance of RG 1.189, Revision 5, does not constitute backfitting as defined in section 50.109 of title 10 of the Code of Federal Regulations (10 CFR), “Backfitting” (Backfit Rule), and is not otherwise inconsistent with the issue finality provisions in 10 CFR part 52. The changes in Revision 5 of RG 1.189 are limited to editorial changes to improve clarity and the correction of a title. These changes do not fall within the kinds of agency actions that constitute backfitting or are subject to limitations in the issue finality provisions of part 52. Accordingly, the NRC did not address the Backfit Rule or issue finality provisions of part 52.

A member of the public may, at any time, submit suggestions to the NRC for improvement of existing RGs or for the development of new RGs. Suggestions can be submitted on the NRC's public website at https://www.nrc.gov/reading-rm/doc-collections/reg-guides/contactus.html. Suggestions will be considered in future updates and enhancements to the “Regulatory Guide” series.

The Bureau of Industry and Security (BIS) published in the Federal Register of October 17, 2023, in FR Doc. 2023-22873, starting on page 71478, amendments to the Export Administration Regulations (EAR) to revise the existing Validated End-User (VEU) list for the People's Republic of China (PRC) for Samsung China Semiconductor Co. Ltd. and SK hynix Semiconductor (China)) Ltd.

This rule corrects for two inadvertently omitted amendments to update the list of VEUs: the first correction adds a word to the description of eligible items for SK Hynix Semiconductor (China) Ltd.; and the second removes the entry for SK hynix Semiconductor (Wuxi) Ltd., which recently merged with SK hynix Semiconductor (China) Ltd., thereby making the entry for SK hynix Semiconductor (Wuxi) Ltd. duplicative.

BIS amends the EAR's “Supplement No. 7 to Part 748—Authorization Validated End-User (VEU): List of Validated End-Users, Respective Items Eligible for Export, Reexport and Transfer (In-Country), and Eligible Destinations”:

• by adding the word “therefor,” after the word “technology” in the description in the “Eligible items (by ECCN)” column for “SK hynix Semiconductor (China) Ltd.”; and

• by removing the entry for “SK hynix Semiconductor (Wuxi) Ltd.” in “China (People's Republic of)”.

Accordingly, part 748 of the EAR (15 CFR parts 730-774) is corrected by making the following correcting amendments:

This document and additional information concerning OFAC are available on OFAC's website: https://ofac.treasury.gov.

On October 18, 2023, OFAC issued GLs 3I, 5M, 9H, 43, 44, and 45 to authorize certain transactions otherwise prohibited by the Venezuela Sanctions Regulations (VSR), 31 CFR part 591, or authorities incorporated therein. Each GL was made available on OFAC's website ( https://ofac.treasury.gov ) when it was issued. GL 3I supersedes GL 3H, which was issued on May 12, 2020. GL 5M supersedes GL 5L, which was issued on July 19, 2023. GL 9H supersedes GL 9G, which was issued May 12, 2020. GL 44 has an expiration date of April 18, 2024. The text of these GLs is provided below.

(a) Except as provided in paragraphs (e) and (f) of this general license, all transactions related to, the provision of financing for, and other dealings in bonds specified in the Annex to this general license (GL 3I Bonds) that would be prohibited by Subsection 1(a)(iii) of Executive Order (E.O.) 13808 of August 24, 2017 or by E.O. 13850 of November 1, 2018, each as amended by E.O. 13857 of January 25, 2019, or by E.O. 13884 of August 5, 2019, as collectively incorporated into the Venezuela Sanctions Regulations, 31 CFR part 591 (the VSR), are authorized, including, on or after October 18, 2023, divestment or transfer of, or facilitation of divestment or transfer of, any holdings in such bonds to a U.S. person.

(b) Except as provided in paragraph (f) of this general license, U.S. persons are authorized to engage in all transactions prohibited by Subsection 1(a)(iii) of E.O. 13808 or by E.O. 13850, each as amended, or by E.O. 13884, as collectively incorporated into the VSR, that are ordinarily incident and necessary to facilitating, clearing, and settling trades of holdings in GL 3I Bonds, provided such trades were placed prior to 4:00 p.m. eastern standard time on February 1, 2019.

(c) Except as provided in paragraph (f) of this general license, all transactions and activities prohibited by Subsection 1(a)(iii) of E.O. 13808 or by E.O. 13850, each as amended, or by E.O. 13884, as collectively incorporated into the VSR, that are ordinarily incident and necessary to the wind down of financial contracts or other agreements that were entered into prior to 4:00 p.m. eastern standard time on February 1, 2019, involving, or linked to, GL 3I Bonds are authorized. This authorization is valid through 12:01 a.m. eastern daylight time, March 31, 2020.

(d) Except as provided in paragraph (f) of this general license, all transactions related to, the provision of financing for, and other dealings in bonds that were issued both (i) prior to August 25, 2017 (the effective date of E.O. 13808), and (ii) by U.S. person entities owned or controlled, directly or indirectly, by the Government of Venezuela, other than PDV Holding, Inc. (PDVH), CITGO Holding, Inc., and any of their subsidiaries, that would be prohibited by E.O. 13808 or E.O. 13850, each as amended, or by E.O. 13884, as collectively incorporated into the VSR, are authorized.

(e) Paragraph (a) of this general license does not authorize U.S. persons to sell, or to facilitate the sale of, GL3I Bonds to, directly or indirectly, any person whose property and interests in property are blocked pursuant to the VSR.

(f) This general license does not authorize:

(1) The unblocking of any property blocked pursuant to the VSR, or any other part of 31 CFR chapter V, except as authorized by paragraphs (a), (b), (c), and (d); or

(2) Any transactions or activities otherwise prohibited by the VSR, or any other part of 31 CFR chapter V, or any transactions or activities with any blocked persons other than transactions or activities involving the Government of Venezuela, including Banco Central de Venezuela, that are described in this general license.

(g) Effective October 18, 2023, General License No. 3H, dated May 12, 2020, is replaced and superseded in its entirety by this General License No. 3I.

Dated: October 18, 2023.

List of GL 3I Bonds, as of October 18, 2023:

This final rule sets out certain amendments to FinCEN's Beneficial Ownership Information Reporting Requirements Rule  1 (the Final Reporting Rule), which implements Section 6403 of the Corporate Transparency Act (CTA), to specify when and how entities required to report beneficial ownership information (BOI) to FinCEN may use a FinCEN identifier to report the BOI of certain related entities. The amendments specify how such entities may use an entity's FinCEN identifier to fulfill their BOI reporting obligations under 31 CFR 1010.380.

On December 8, 2021, FinCEN published a notice of proposed rulemaking for the Beneficial Ownership Information Reporting Requirements (the Reporting NPRM). 2 The Reporting NPRM proposed regulations specifying what BOI must be reported to FinCEN pursuant to CTA requirements, by whom, and when. In addition, the Reporting NPRM proposed processes for obtaining, updating, and using FinCEN identifiers. The Reporting NPRM included a 60-day comment period, which closed on February 7, 2022, and FinCEN received over 240 comments on the NPRM, including multiple comments about the proposed processes for obtaining, updating, and using FinCEN identifiers.

On September 30, 2022, FinCEN published the Final Reporting Rule, with an effective date of January 1, 2024. 3 The Final Reporting Rule requires certain corporations, limited liability companies, and other similar entities (collectively, “reporting companies”)  4 to report certain identifying information about the beneficial owners who own or control such entities and the company applicants who form or register them. 5 These requirements are intended to facilitate access to BOI for certain authorized recipients, including law enforcement and regulators, for the purposes of countering money laundering and the financing of terrorism, and for other specific purposes. 6 The Final Reporting Rule requires reporting companies to report to FinCEN within prescribed time periods information about themselves, as well as information about two categories of individuals: (1) the beneficial owners of the reporting company; and (2) the company applicants, who are the individuals who filed a document to create the reporting company or register it to do business.

The Final Reporting Rule also established the rules for individuals and entities to obtain and update FinCEN identifiers, and the rules for use of an individual's FinCEN identifier. However, FinCEN declined to finalize the portion of the proposed rule pertaining to the use of an entity's FinCEN identifier. Rather, FinCEN re-proposed a small part of the Reporting NPRM pertaining to the use of reporting companies' FinCEN identifiers for public comment on December 16, 2022, 7 as part of the notice of proposed rulemaking on Beneficial Ownership Information Access and Safeguards, and Use of FinCEN Identifiers for Entities (the Access NPRM).

A FinCEN identifier is a unique identifying number that FinCEN will issue to individuals who have provided FinCEN with their BOI and to reporting companies that have filed initial BOI reports. 8 In the discussion that follows, FinCEN will refer to these as “individual FinCEN identifiers” and “entity FinCEN identifiers,” respectively. The Final Reporting Rule finalized the use of individual FinCEN identifiers but not the use of entity FinCEN identifiers. Concerning the latter, the CTA specifies that if an individual “is or may be a beneficial owner of a reporting company by an interest held by the individual in an entity that, directly or indirectly, holds an interest in the reporting company,” the reporting company may report the appropriate entity's FinCEN identifier in lieu of providing the individual's BOI. 9

FinCEN originally proposed incorporating this language in the Reporting NPRM without significant alteration or clarification. Some commenters to the Reporting NPRM, however, expressed concerns that the use of entity FinCEN identifiers could obscure the identities of beneficial owners in a manner that might result in greater secrecy or incomplete or misleading disclosures. Several commenters noted that the proposed language could be confusing. Others highlighted problems that could arise when the FinCEN identifier is used for reporting companies with ownership structures that involve multiple beneficial owners and intermediate entities. Persuaded by these comments, FinCEN did not adopt the proposed language in the Final Reporting Rule. Instead, FinCEN proposed new language in the Access NPRM establishing how reporting companies could use an entity's FinCEN identifier. Comments received in response to the Access NPRM both addressed this new proposal and raised other issues about entity FinCEN identifiers.

Proposed Rule. Proposed 31 CFR 1010.380(b)(4)(ii)(B) provided that a reporting company may report another entity's FinCEN identifier and full legal name in lieu of the information required under 31 CFR 1010.380(b)(1) with respect to the beneficial owners of the reporting company, but only if three conditions are met: (1) the entity has obtained a FinCEN identifier and provided that FinCEN identifier to the reporting company; (2) an individual is or may be a beneficial owner of the reporting company by virtue of an interest in the reporting company that the individual holds through the entity; and (3) the beneficial owners of the entity and of the reporting company are the same individuals. 10 This proposal reflected FinCEN's understanding that use of the entity FinCEN identifier would best satisfy the CTA's overall statutory scheme—in which reporting the intermediate entity's FinCEN identifier would be equivalent to reporting the BOI of the reporting company's beneficial owners—only if the two entities in fact had the same beneficial owners.

Comments Received. Several comments supported FinCEN's proposed formulation for reporting company use of entity FinCEN identifiers, noting that this approach reduced the risk that an entity FinCEN identifier could be used in ways that would obscure a reporting company's true beneficial owners. This had been a significant concern of commenters that were critical of FinCEN's initial formulation in the Reporting NPRM. While generally supportive, two commenters proposed specific changes to the regulatory text to clarify FinCEN's revised approach and to specify that an entity FinCEN identifier could no longer be used if the BOI of either the reporting company or the entity whose FinCEN identifier was reported changed such that the two were no longer identical. Other commenters, without stating a position on FinCEN's proposed specification of three limiting criteria for an entity's use of a FinCEN identifier, expressed skepticism about the wisdom or desirability of both the entity FinCEN identifiers and the individual FinCEN identifiers in general. Others posed specific implementation questions, such as how a reporting company can be expected to verify FinCEN identifier information provided by a beneficial owner. One commenter questioned the value of allowing use of an entity FinCEN identifier when an individual is “or may be” a beneficial owner of a reporting company by virtue of an interest held in an intermediate entity, notwithstanding the fact that the phrase is in the CTA itself. Finally, commenters requested that FinCEN permit corporate service providers to apply for entity FinCEN identifiers on others' behalf.

Final Rule. FinCEN adopts the proposed rule, with certain revisions. The final rule incorporates changes to clarify the circumstances in which an entity FinCEN identifier could be used. These changes, which were specifically suggested by commenters, are: (1) to consistently refer to the entity whose FinCEN identifier the reporting company may use as “another entity” or “the other entity” rather than simply “the entity,” in order to avoid confusion with the reporting company itself; and (2) to make clear that it is an individual's ownership interest in another entity that allows the reporting company to report the other entity's FinCEN identifier in lieu of the individual's information. FinCEN considers both of these changes to improve the clarity of the provision and make it more likely that reporting companies will use the FinCEN identifier as intended.

At the same time, however, FinCEN has not adopted all of the revisions suggested by commenters. For example, FinCEN has not removed the regulatory text that allows use of an entity FinCEN identifier if a beneficial owner of the entity “may be” a beneficial owner of the reporting company by virtue of an interest held in an intermediate entity. As noted above, the CTA expressly permits this, and FinCEN retains the clause to give effect to the principle that a reporting company should be able to report an entity FinCEN identifier when it has a good faith belief that the use is appropriate.

FinCEN also declines to change the rule text to more specifically address the requirement that a reporting company update its BOI report if the beneficial owners of the entity whose entity FinCEN identifier the reporting company has previously reported cease to be the same as the beneficial owners of the reporting company. FinCEN believes that the language as proposed is already sufficiently clear on this point. The commenters who raised this issue correctly understand that if at any time the reportable beneficial owners of either the reporting company or the entity whose FinCEN identifier was reported changes such that the two are no longer identical, then the reporting company must file an update with FinCEN and can no longer report the relevant entity's FinCEN identifier. That the commenters understood this requirement suggests that additional clarification is not necessary and, if appropriate, FinCEN may consider clarifying this requirement in the context of guidance or FAQs.

Finally, with respect to the comments that questioned whether the entity FinCEN identifier would actually be of use or value to reporting companies, FinCEN has acknowledged that it can only speculate as to the likely rate at which reporting companies will request entity FinCEN identifiers and the likelihood that they will report entity FinCEN identifiers in lieu of information about individual beneficial owners. FinCEN will monitor developments on this subject closely as the Final Reporting Rule is implemented.

This rule is necessary to comply with and implement the CTA and is consistent with the CTA's statutory mandate that FinCEN issue regulations regarding access to beneficial ownership information. 11 Specifically, the rule amends the BOI reporting regulations to implement the provision of the CTA regarding the use of FinCEN identifiers codified at 31 U.S.C. 5336(b)(3)(C). The amendments specify how reporting companies would be able to use an entity's FinCEN identifier to fulfill their BOI reporting obligations under 31 CFR 1010.380. In particular, the rule establishes a process through which a reporting company may report another reporting company's entity FinCEN identifier and full legal name in lieu of the information otherwise required under 31 CFR 1010.380(b)(1), subject to certain limitations.

This rule affects reporting companies that choose to report the entity FinCEN identifier of another reporting company in their BOI report. It may also affect reporting companies deciding whether to request an entity FinCEN identifier.

FinCEN has analyzed the final rule as required under Executive Orders 12866, 13563, and 14094, the Regulatory Flexibility Act, the Unfunded Mandates Reform Act, and the Paperwork Reduction Act. This final rule will not have an annual effect on the economy of $200 million or otherwise constitute a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, as amended. Pursuant to the Regulatory Flexibility Act, FinCEN certifies that this rule will not have a significant economic impact on a substantial number of small entities. FinCEN assessed that this rule results in no additional costs to small entities. Furthermore, pursuant to the Unfunded Mandates Reform Act, FinCEN concluded that the rule will not result in an expenditure of $177 million or more annually by State, local, and Tribal governments or by the private sector. 12 Finally, FinCEN assesses that this rule will not result in any additional burden or costs considered under the framework of the Paperwork Reduction Act (PRA).

FinCEN does not assess any additional quantifiable costs or benefits, measured in burden hours, associated with the rule beyond those separately considered in the Final Reporting Rule's regulatory impact analysis (RIA). 13 14 Further, FinCEN assesses that the rule is consistent with the assumption in the Final Reporting Rule's RIA that the cost associated with using entities' FinCEN identifiers is accounted for in the cost estimates for the BOI report. Additionally, the rule can reduce burden for reporting companies that choose to report another reporting company's FinCEN identifier because the filing reporting company will provide fewer pieces of information on its BOI report. However, FinCEN assesses such burden reduction is likely to be minimal relative to the total cost of filling out and submitting the report. Furthermore, it is unknown to FinCEN how many entities will choose to utilize entity FinCEN identifiers, as provided for in this rule. Accordingly, FinCEN does not estimate costs or benefits associated with this rule beyond what is stated in the Final Reporting Rule RIA.

The rule is statutorily mandated, and therefore, FinCEN has limited ability to implement alternatives. Nonetheless, FinCEN considered the following alternatives that would be available under the statute: (1) implementing the statutory language at 31 U.S.C. 5336(b)(3)(C) as written; and (2) implementing the language proposed in the Reporting NPRM at 31 CFR 1010.380(b)(4)(ii)(B). However, as explained in Sections II and III, FinCEN is promulgating this final rule to address ambiguities in the statutory text and concerns raised by commenters about the clarity of the provision proposed in the Reporting NPRM and the potential for misuse of entity FinCEN identifiers.

For the reasons set forth in the preamble, the U.S. Department of the Treasury and Financial Crimes Enforcement Network amend 31 CFR part 1010 as follows:

The EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this Federal Register , we are publishing a separate document that will serve as the proposed rule to exempt a new system of records, EPA-100, the OIG Data Analytics Enterprise Tracking System, from certain requirements of the Privacy Act if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule.

EPA is also revising the Agency's Privacy Act regulations to update the names of systems of records with general and specific exemptions. Specifically, 40 CFR 16.11, will be modified to update the name of EPA-17 from OCEFT Criminal Investigative Index and Files to Online Criminal Enforcement Activities Network (OCEAN) and EPA-40 from Inspector General's Operation and Reporting (IGOR) System Investigative Files to Inspector General Enterprise Management System (IGEMS) Investigative Module and to add EPA-100 OIG Data Analytics Enterprise. Likewise, 40 CFR 16.12 will also be modified to update the names of EPA-17 from OCEFT Criminal Investigative Index and Files to Online Criminal Enforcement Activities Network (OCEAN), EPA-21 from External Compliance Program Discrimination Complaint Files to External Compliance Case Tracking System (EXCATS), EPA-30 from OIG Hotline Allegation System to Inspector General Enterprise Management System (IGEMS) Hotline Module and EPA-40 from Inspector General's Operation and Reporting (IGOR) System Investigative Files to Inspector General Enterprise Management System (IGEMS) Investigative Module. Additionally, § 16.12 will be modified to add EPA-100 OIG Data Analytics Enterprise and to remove reference to EPA-41 because the system of records is no longer exempt.

The EPA will use this system of records to develop data models and analyses in order to identify fraud, waste and abuse, and programmatic problems and deficiencies. This system of records will allow the EPA OIG to identify correlations between existing EPA data sets and other government agency data sets so as to identify patterns and correlations that indicate fraud and issues of program waste and abuse. EPA OIG will apply analytics and data modeling principles within this system of records to identify problems or failures in the implementation or performance of internal controls within the EPA. The records may be used in the course of performing audits, evaluations, and inspections; investigating individuals and entities suspected of criminal, civil, or administrative misconduct and in supporting related judicial and administrative proceedings; or in conducting preliminary inquiries undertaken to determine whether to commence an audit, evaluation, inspection, or investigation.

The EPA compiles and maintains the records in the OIG Data Analytics Enterprise for use in criminal and civil investigations and actions. This system of records, EPA-100, is maintained by the Office of Inspector General. This component of EPA performs as its principal function, activities pertaining to the enforcement of criminal laws.

The Privacy Act allows Federal agencies to exempt eligible records in a system of records from certain provisions of the Act, including those that provide individuals with a right to request access to and amendment of their own records. If an agency intends to exempt a particular system of records, it must first go through the rulemaking process pursuant to 5 U.S.C. 553(b)(1)-(3), (c), and (e). This rule explains why an exemption is being claimed for this system of records and invites public comment, which EPA will consider.

Under 5 U.S.C. 552a(j)(2), the head of any agency may exempt any system of records within the agency from certain provisions of the Privacy Act, if the agency or component that maintains the system performs as its principal function any activities pertaining to the enforcement of criminal laws. The Inspector General Act mandates that the Inspector General recommend policies for, and conduct, supervise, and coordinate activities in the Agency and between the Agency and other Federal, State, and local government agencies with respect to all matters relating to the prevention and detection of fraud in programs and operations administered or financed by the Agency, and to the identification and prosecution of participants in such fraud. Under the Inspector General Act, whenever the Inspector General has reasonable grounds to believe that there has been a violation of Federal criminal law, the Inspector General must report the matter expeditiously to the Attorney General. In addition to these principal functions pertaining to the enforcement of criminal laws, the Inspector General may receive and investigate complaints on information from various sources concerning the possible existence of activities constituting violations of law, rules, or regulations, or mismanagement, gross waste of funds, abuses of authority, or substantial and specific danger to the public health and safety. To the extent criminal law enforcement information is contained in the system as enumerated in 5 U.S.C. 552a(j)(2), the provisions of the Privacy Act from which exemptions are claimed under 5 U.S.C. 552a(j)(2) are as follows: 5 U.S.C. 552a(c)(3) and (4); 5 U.S.C. 552a(d); 5 U.S.C. 552a(e)(1), (2) and (3); 5 U.S.C. 552a(e)(4)(G) and (H); 5 U.S.C. 552a(e)(5) and (8); 5 U.S.C. 552a(f)(2) through (5); and 5 U.S.C. 552a(g).

EPA is claiming the above exemptions for the following reasons:

(1) From subsection (c)(3), because making available to a named individual an accounting of disclosures of records concerning him/her/them could reveal investigative interest on the part of EPA and/or the Department of Justice. This could allow record subjects to impede the investigation, e.g., destroy evidence, intimidate potential witnesses, or flee the area to avoid inquiries or apprehension by law enforcement personnel. More broadly, the application of this provision could reveal the OIG's investigative interests, which could compromise those investigative interests. Further, such a disclosure could reveal the identity of a confidential source and hamper the Agency's investigation.

(2) From subsection (c)(4), which concerns providing notice to others regarding corrections or disputed information in accordance with subsection (d) of the Privacy Act, because no access to these records is available under subsection (d) of the Act.

(3) From subsection (d), which requires an agency to permit an individual to access, contest or request amendment of records pertaining to him/her/them, because the records contained in this system relate to official Federal investigations. Individual access to these records could compromise ongoing investigations, reveal confidential informants and/or sensitive investigative techniques used in particular investigations, or constitute unwarranted invasions of the personal privacy of third parties who are involved in a certain investigation.

(4) From subsection (e)(1), which requires an agency to maintain only relevant and necessary information about an individual, because the relevance or necessity of information obtained in the course of a law enforcement investigation is not always known when collected. Material that may seem unrelated, irrelevant, or incomplete when collected may take on added meaning or significance as the investigation progresses. Also, in the interest of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of criminal activity. Therefore, it would impede the investigative process if it were necessary to assure the relevance and necessity of all information obtained.

(5) From subsection (e)(2), which requires an agency to collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about the individual's rights, benefits, or privileges under Federal programs. Application of this provision could impair investigations and law enforcement by alerting the subject of the investigation to the existence of the investigation. Further, compliance with the requirements of this subsection during the course of an investigation could impede the information gathering process or cause the destruction of evidence, thus hampering the investigation.

(6) From subsection (e)(3), which requires an agency to inform those supplying information of its authority to collect the information, its plans for using or sharing that information, and the effects of not providing the requested information. The application of this provision could provide the subject of the investigation with substantial information about the nature of the investigation, which could interfere with the investigation. To comply with the requirements of this subsection during the course of an investigation could impede the information gathering process especially when undercover operations or confidential sources are used, thus hampering the investigation.

(7) From subsections (e)(4)(G) and (H), which require an agency to publish—in the Federal Register —procedures concerning access to records, because no access to these records is available under subsection (d) of the Privacy Act, for the reasons explained above in the discussion of subsection (d).

(8) From subsection (e)(5), which requires an agency to maintain its records with accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual, because it is not possible to determine in advance what information is accurate, relevant, timely, and complete. Facts are first gathered and then placed into a logical order to prove or disprove objectively the criminal behavior of an individual. Material that may seem unrelated, irrelevant, or incomplete when collected may take on added meaning or significance as the investigation progresses. The restrictions of this provision could interfere with the preparation of a complete investigative report, thereby impeding effective law enforcement.

(9) From subsection (e)(8), which requires notice to an individual whenever a record on such individual is made available to others under compulsory legal process, because complying with this provision could prematurely reveal an ongoing criminal investigation to the subject of the investigation.

(10) From subsections (f)(2), (f)(3), (f)(4), and (f)(5), concerning agency rules for obtaining access to records under subsection (d), because this system is exempt from the access and amendment provisions of subsection (d). Since EPA is exempting this system of records from subsection (d) of the Act, concerning access to records, the requirements of subsections (f)(2) through (5) of the Act, concerning agency rules for obtaining access to such records, are inapplicable and are exempted to the extent that this system of records is exempted from subsection (d) of the Act.

(11) From subsection (g), which provides for civil remedies if an agency fails to comply with certain requirements of the Act applicable to a nonexempt system of records, because EPA is exempting this system of records from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (4)(G), and (H), (5), and (8); and (f)(2) through (5) of the Act. The provisions of subsection (g) of the Act are inapplicable to the extent that this system of records is exempted from those subsections of the Act.

The EPA also compiles and maintains the records in the OIG Data Analytics Enterprise for use in civil and administrative investigations and actions. In those cases, the system again is maintained by the Office of Inspector General. 5 U.S.C. 552a(k)(2) states that the head of an agency may promulgate regulations to exempt the system from certain provisions of the Act if the system “is investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2)” of 5 U.S.C. 552a. Accordingly, to the extent investigatory records are not covered under the exemptions in subsection (j)(2), the following provisions of the Privacy Act are exempt pursuant to 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3), 5 U.S.C. 552a(d), 5 U.S.C. 552a(e)(1), 5 U.S.C. 552a(e)(4)(G) and (H) and 5 U.S.C. 552a(f)(2) through (5):

(1) From subsection (c)(3) because making available to named individual an accounting of disclosures of records concerning him/her/them could reveal investigative interest on the part of EPA and/or the Department of Justice. This could allow record subjects to impede the investigation, e.g., destroy evidence, intimidate potential witnesses, or flee the area to avoid inquiries or apprehension by law enforcement personnel. More broadly, the application of this provision could reveal the OIG's investigative interests, which could compromise those investigative interests. Further, such a disclosure could reveal the identity of a confidential source and hamper the Agency's investigation.

(2) From subsection (d), which requires an agency to permit an individual to access, contest or request amendment of records pertaining to him/her/them, because the records contained in this system relate to official Federal investigations. Individual access to these records could compromise ongoing investigations, reveal confidential informants and/or sensitive investigative techniques used in particular investigations, or constitute unwarranted invasions of the personal privacy of third parties who are involved in a certain investigation.

(3) From subsection (e)(1), which requires each agency to maintain only such information about an individual as is relevant and necessary to accomplish a purpose of the agency, because in the course of law enforcement investigations information may occasionally be obtained or introduced the accuracy of which is unclear or which is not strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of criminal activity. Moreover, it would impede any investigative process, whether civil or criminal, if it were necessary to assure the relevance, accuracy, timeliness and completeness of all information obtained.

(4) From subsections (e)(4)(G) and (H), which require an agency to publish—in the Federal Register —procedures concerning access to records, because no access to these records is available under subsection (d) of the Privacy Act, for the reasons explained above in the discussion of subsection (d).

(5) From subsection (f)(2), (f)(3), (f)(4), and (f)(5), concerning agency rules for obtaining access to records under subsection (d), because this system is exempt from the access and amendment provisions of subsection (d). Since EPA is exempting this system of records from subsection (d) of the Act, concerning access to records, the requirements of subsections (f)(2) through (5) of the Act, concerning agency rules for obtaining access to such records, are inapplicable and are exempted to the extent that this system of records is exempted from subsection (d) of the Act.

The EPA also compiles and maintains the records in the OIG Data Analytics Enterprise, EPA-100, for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information. In those cases, the system again is maintained by the Office of Inspector General. The statute at 5 U.S.C. 552a(k)(5) states that the head of any agency may by rule exempt any system of records within the agency from certain provisions of the Privacy Act, if the system of records is investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence. Accordingly, to the extent any records would disclose source-identifying information, all such information in the OIG Data Analytics Enterprise, EPA-100, are exempt from 5 U.S.C. 552a(c)(3) and 5 U.S.C. 552a(d):

(1) From subsection (c)(3) because making available to named individual an accounting of disclosures of records concerning him/her/them could reveal investigative interest on the part of EPA and/or the Department of Justice. This could allow record subjects to impede the investigation, e.g., destroy evidence, intimidate potential witnesses, or flee the area to avoid inquiries or apprehension by law enforcement personnel. More broadly, the application of this provision could reveal the OIG's investigative interests, which could compromise those investigative interests. Further, such a disclosure could reveal the identity of a confidential source and hamper the Agency's investigation.

(2) From subsection (d), which requires an agency to permit an individual to access, contest or request amendment of records pertaining to him/her/them, because the records contained in this system relate to official Federal investigations. Individual access to these records could compromise ongoing investigations, reveal confidential informants and/or sensitive investigative techniques used in particular investigations, or constitute unwarranted invasions of the personal privacy of third parties who are involved in a certain investigation.

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

This action was submitted to the Office of Management and Budget (OMB) for review and reviewed without comment.

This action does not impose an information collection burden under the PRA. This action contains no provisions constituting a collection of information under the PRA.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities.

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.

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

This action does not have tribal implications as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

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

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

This rulemaking does not involve technical standards.

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

For the reasons set forth in the preamble, EPA amends 40 CFR part 16 as follows:

This action does not directly apply to any regulated industry classified by the North American Industry Classification System (NAICS) Association. 1 This action relates to State and local governments. The revisions we are finalizing do not impose any requirements that State and local governments must meet, but rather implement the Clean Air Act preemption provisions for locomotives. To determine whether your entity could be impacted by this action, you should carefully examine the applicability criteria found in 40 CFR part 1074. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Environmental Protection Agency (EPA) is finalizing revisions to its regulations addressing preemption of State regulation of new locomotives and new engines used in locomotives, to align with language in the Clean Air Act.

Clean Air Act (CAA) section 209(e)(2)(B), 42 U.S.C. 7543(e)(2)(B), requires EPA to promulgate regulations implementing section 209(e) of the Act. CAA section 209(e)(1) addresses the prohibition of State standards regarding certain classes of new nonroad engines or new nonroad vehicles including new locomotives and new engines used in locomotives. 2 CAA section 209(e)(2)(A) specifies the criteria relevant to EPA's evaluation of California authorization requests (requests for a waiver of CAA preemption) for standards relating to the control of emissions from nonroad engines or nonroad vehicles other than those prohibited under section 209(e)(1). EPA's regulations implementing these provisions for locomotives and locomotive engines were first adopted in 1998 at 40 CFR part 85 and transcribed in 2008 at 40 CFR part 1074. 3

As part of its 1998 rule finalizing Emission Standards for Locomotives and Locomotive Engines at 40 CFR part 92, which applied to new locomotives and new engines used in locomotives, EPA also adopted regulations in 40 CFR part 85 defining a broad preemption of certain State and local controls of new or other locomotives and engines used in locomotives, which we determined to be appropriate based on our understanding of the information available at the time. Recently, there has been interest in obtaining greater emissions reductions from the locomotive sector, including possibly adopting programs to achieve greater emission reductions from non-new locomotives that are not required by EPA's emission standards for new locomotives and engines under CAA section 213(a)(5). 4 On April 27, 2023, EPA published a notice of proposed rulemaking which, among other things, proposed revisions to our locomotive preemption regulations. 5 Specifically, we proposed to delete 40 CFR 1074.12(b), which preempted the State control of non-new locomotives for certain categories of State control measures for a period of 133 percent of the useful life of a new locomotive or engine, 6 along with conforming edits. Because this proposal was included in EPA's larger Phase 3 Heavy-Duty Greenhouse Gas notice of proposed rulemaking, it shared and continues to share a docket ID number with that proposal. We have decided to finalize this locomotive preemption portion of the proposal as a separate final rule, while preserving our discretion to take separate final action on all other aspects of the proposal at a future date.

In this final rule, EPA is adopting the revisions to part 1074 as proposed and with no further adjustments. We received overwhelming support from commenters, as well as a few adverse comments. In this preamble, we have highlighted only a few of those comments to explain the basis of EPA's final locomotive preemption regulation. EPA has prepared a comprehensive Response to Comments document, in which we respond to all significant comments we received during the public comment period on the issues addressed in this rule. 7

The CAA Amendments of 1990 called on EPA to adopt emission standards for new locomotives and new locomotive engines that achieve the greatest degree of emission reduction achievable through the application of technology which EPA determines will be available for the locomotives or engines, giving appropriate consideration to the cost of applying such technology within the period of time available to manufacturers and to associated noise, energy, and safety factors. CAA section 213(a)(5), 42 U.S.C. 7547(a)(5). 8 These 1990 amendments also added CAA section 209(e) which sets out provisions that prohibit States or any political subdivision thereof from regulating certain nonroad engines or vehicles, provisions that set forth the requirement that EPA must authorize California standards and other requirements relating to the control of emissions from other nonroad vehicles and engines unless specified criteria are found by EPA, and provisions that set forth how States other than California can adopt California nonroad vehicle or engine standards if certain criteria are met. Section 209(e)(2) directed the Administrator of EPA to issue regulations to implement section 209(e).

In April of 1998, EPA adopted its first-ever regulations addressing air pollutant emissions from new locomotives and new locomotive engines (including freshly built and remanufactured) under CAA section 213(a)(5), 42 U.S.C. 7547(a)(5). 9 As part of the 1998 final rule, EPA also promulgated regulations designed to codify the nonroad preemption provisions of section 209(e)(1)(B) to clarify the prohibition of any State standard or other requirement relating to the control of emissions from new locomotives or new engines used in locomotives. 10 EPA's rule included a provision that set a period equivalent in length to 133 percent of the regulatory useful life of a new locomotive or engine during which certain categories of control measures are preempted, whether applicable to new or other locomotives or locomotive engines. 11 EPA also adopted regulations to implement the CAA provisions allowing California to request authorization for other State requirements on non-new locomotives and engines used in locomotives not otherwise prohibited. 12

As we explained in the April 27, 2023, proposed rule to amend part 1074, recent fleet profile data shows that the in-service locomotive fleet continues to be dominated by Tier 2 and earlier locomotives subject to EPA's less stringent emission standards. 13 According to data supporting EPA's 2020 National Emission Inventory, there are 16,787 locomotives in the Class I line-haul fleet. 14 Of these, about 26 percent are Tier 3 or Tier 4 locomotives subject to more stringent emission standards. 15 The other 74 percent are Tier 2 or earlier locomotives, broken down as follows: About 62 percent are remanufactured to the revised remanufacture standards adopted in 2008; 11 percent have not been remanufactured and continue to have the higher emissions of their original certification tier; and a small number, about 1 percent, are unregulated (pre-1973) locomotives. The Class II and III line-haul fleet consists of 3,447 locomotives. Of these, about seven percent are Tier 3 or 4 locomotives. The other 93 percent are Tier 2 or earlier, broken down as follows: About 39 percent of the locomotives are unregulated (pre-1973); 48 percent are Tier 0; and the other six percent are Tier 1 or Tier 2.

In the April 27, 2023, proposal, we noted that there is interest from entities who must develop State implementation plans (SIPs) demonstrating attainment of national ambient air quality standards (NAAQS) in obtaining greater emissions reductions from the locomotive sector, including possibly adopting programs to achieve greater emission reductions from non-new locomotives that are not required by EPA's emissions standards for new locomotives and engines under CAA section 213(a)(5). This interest is related to the large share of older locomotives in the Class I, II, and III railroad fleets and their emissions contribution to ambient concentrations of air pollution that may violate the ozone and particulate matter NAAQS.

Nevertheless, the action taken here to revise our locomotive preemption regulations does not achieve reductions of such emissions. Rather, by aligning with the CAA, it may provide latitude for the development of State approaches to addressing emissions from non-new locomotives and non-new engines used in locomotives that are not required to be reduced by EPA's emissions standards for new locomotives and engines under CAA section 213(a)(5). In enacting the 1990 CAA amendments and section 209(e) for nonroad equipment including non-new locomotives, Congress recognized the unique role and air quality concerns of California and clearly envisioned the potential for California to regulate non-new locomotives. This is plainly shown by the combination of statutory provisions—at CAA sections 213(a)(5), 209(e)(1)(B), and 209(e)(2)(A)—that clearly show that although EPA has exclusive authority to regulate emissions from new locomotives and engines and certain other new nonroad engines and vehicles, California retained the ability to seek authorization to regulate “other nonroad engines or vehicles,” including those that are non-new locomotives and locomotive engines. The purpose of EPA's revisions is to effectuate this Congressional intent and the language of the CAA whereby control measures for non-new locomotives must be able to obtain authorization so long as they satisfy the criteria in section 209(e) of the Act.

EPA is finalizing several revisions in 40 CFR part 1074, including §§ 1074.10, 1074.12, and 1074.101, to align EPA's regulations with CAA section 209(e).

In 40 CFR 1074.10, “Scope of preemption,” we are revising § 1074.10(b) to contain text that is currently located in § 1074.12(a) and shifting the current text of § 1074.10(b) into a new § 1074.10(c). This is solely a housekeeping measure and does not revise the text contained in current § 1074.12(a); it is only a transcription.

We are deleting 40 CFR 1074.12, “Scope of preemption-specific provisions for locomotives and locomotive engines,” in its entirety. The previous text at 40 CFR 1074.12(b) preempted the State control of non-new locomotives for certain categories of State control measures for a period of 133 percent of useful life of a new locomotive or engine. 16 We believe the removal of the explicit period of preemption in § 1074.12(b) as well as the listed categories of State control measures will reflect that not all State regulations addressing non-new locomotives were intended by Congress to be preempted without the possibility of obtaining a waiver of preemption and will align the requirements and effects of the regulation with the plain language of the CAA.

In 40 CFR 1074.101, “Procedures for California nonroad authorization requests,” we are finalizing a minor housekeeping edit to paragraph (a) of this section, to refer to the relocated text in § 1074.10(b) that is being moved out of § 1074.12.

We received several comments expressing concerns about emissions from non-new locomotives and their impact on communities, especially for areas located along high traffic rail lines and/or in communities with environmental justice concerns. We acknowledge these concerns about the harmful impacts of locomotive emissions on these communities. We received many comments supporting the removal of § 1074.12(b), including from the Environmental Defense Fund, the Moving Forward Network, and the National Association of Clean Air Agencies. We are finalizing the revisions as proposed.

Comments from industry on this topic include concerns from Wabtec that EPA's proposed revisions could take away the stability and predictability of a Federally-uniform regulatory program for new locomotives and engines. 17 We acknowledge the concern, but it is misplaced. Only EPA has the authority to promulgate standards and requirements that apply to new locomotives and new engines used in locomotives, and this rule does nothing to change that exclusive authority. California may not adopt and enforce standards or requirements that apply to new locomotives or new engines used in locomotives, as is plainly prohibited by section 209(e)(1)(B). As EPA noted in the proposal, section 209(e)(2)(A) of the Act requires EPA to authorize California's emission standards for certain nonroad engines and vehicles, including for non-new locomotives and non-new engines used in locomotives, so long as California meets the requirements of that provision. Further, section 209(e)(2)(B) also allows certain States to adopt California's standards so long as they meet the statutory criteria. EPA's final rule aligns the regulation with these clear statutory requirements.

In any case, we do not believe that our action improperly diminishes the regulatory stability referred to by the commenter. The underlying CAA preemption language protects manufacturers from having to juggle compliance with conflicting State and Federal regulations of new locomotives, and only EPA's regulations promulgated under CAA section 213(a)(5) can impose compliance requirements on new locomotives and new engines used in locomotives. There is no possibility, under either the CAA or as a result of EPA's amended preemption regulations, for California or any other State to adopt and enforce different standards or other requirements that would apply to new locomotives or new engines used in locomotives. In addition, EPA's authorization process insulates manufacturers from State-level rules that could significantly affect the design and manufacture of new locomotives or new locomotive engines. Under this final rule, EPA remains obliged to adhere to the statutory authorization criteria in CAA section 209(e)(2). EPA also intends to consider the reasoning of Allway Taxi in reviewing any California rules submitted to EPA for authorization pursuant to 40 CFR 1074.101 through 1074.105. 18 A comment received from the Association of American Railroads supports this point, emphasizing that the removal of the categorical preemption of certain types of State regulations that EPA has, to date, deemed likely to significantly affect the design and manufacture of new locomotives or new locomotive engines, does not change the underlying statutory limitation against which EPA would evaluate a future request. 19 Specifically, the statutory limitation referenced in that comment is the one at CAA section 209(e)(2)(A), which requires the Administrator, after notice and opportunity for public hearing, to authorize California to adopt and enforce standards and other requirements relating to the control of emissions from such nonroad vehicles or engines not preempted by CAA section 209(e)(1) if California determines that California standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. Further, 209(e)(2)(A) states EPA shall not grant such authorization if it finds that (1) the protectiveness determination of California is arbitrary and capricious; (2) California does not need such standards to meet compelling and extraordinary conditions; or (3) California standards and accompanying enforcement procedures are not consistent with CAA section 209.

We also received an adverse comment on this topic from the American Free Enterprise Chamber of Commerce, claiming that the proposal did not provide a compelling policy reason for deviating from the previous approach to Federal preemption of State regulation of locomotives and engines, whether new or other locomotives and engines. 20 While EPA is making a policy change to no longer categorically preempt State regulation of non-new locomotives and engines, this final rule aligns with the plain text of the CAA, is well supported by the factual record including developments since the 1998 final rule, and better achieves the legislative intent of providing for exclusive Federal regulation of new locomotives and new locomotive engines while preserving the ability of obtaining a waiver of preemption for regulating non-new locomotives and engines. 21 As we explain in section II of this document, the final rule aligns EPA's regulations with the clear text of sections 213(a)(5), 209(e)(1)(B) and 209(e)(2)(A) of the CAA. While the agency has discretion to establish further criteria for authorizations by regulation beyond what are specified in the statute, as we did in the 1998 rule, the statute does not require this result. 22 Rather, the statute at section 209(e)(2) establishes a process where EPA authorizes, on a case-by-case basis, certain California nonroad engine and vehicle standards, including those applicable to non-new locomotives, so long as they satisfy the criteria in section 209(e)(2)(A). The final rule faithfully implements this statutory process for non-new locomotives and engines.

Moreover, EPA is making new factual findings that support the change in policy. As explained in the April 27, 2023, proposal and further explained in the Response to Comments document, we have identified certain developments that indicate that the categorical exclusion of some of the specified standards and requirements for 133 percent of the useful life period of new locomotives or engines is no longer in all cases appropriate. We identified illustrative emissions control technologies which have been voluntarily applied to non-new locomotives and prima facie would not appear to significantly affect the design or manufacture of new locomotives. 23 In light of the changed factual record, we believe that the 1998 rule's categorical bar on certain types of controls for non-new locomotives is no longer appropriate, and that instead, the agency ought to evaluate on a case-by-case basis whether to authorize standards involving such controls for non-new locomotives.

Finally, as we explained in the proposal, this rule better achieves Congress's intent to differentiate between Federal regulation of new locomotives and possible State regulation of non-new locomotives. Although it is clear from the plain language of CAA sections 213(a)(5) and 209(e)(1)(B) that only EPA is to regulate new locomotives and engines, section 209(e)(2) contemplates that California may adopt certain standards for non-new locomotives to address its air quality problems, and that other States may follow California's lead. Throughout section 209, Congress contemplated that authorizing California's “pioneering” regulatory efforts would create a State-level laboratory for innovation, driving experimentation in “new control systems and designs” that would benefit the nation as a whole. 24 Although Congress, in section 209(e)(1)(B), precluded California's ability to regulate new locomotives and engines, the 1998 final rule's categorical bar on certain controls whether applicable to new or other locomotives and engines may have also precluded California and other States from exploring innovative local programs to address pollution from non-new locomotives and in turn achieving the potential emissions reductions of such programs—programs that EPA could not include in its emission standards under section 213(a)(5) that apply only to new locomotives and engines. This final rule ensures that such programs for non-new locomotives and engines may be authorized so long as they meet the statutory authorization criteria and in turn yield benefits for public health and the environment.

This action does not change the scope of preemption of State regulation of new locomotives and new engines used by locomotives, which is established by CAA section 209(e)(1). EPA agrees with the commenter that we are making a policy change with regard to whether to evaluate State regulation of non-new locomotives and engines at all, but we are not changing any of the criteria for evaluating authorization requests. On review of the extension of the preemption provisions adopted in 1998 as reaching “other locomotives or locomotive engines,” in addition to those that are “new,” without preserving the authority under CAA section 209(e)(2) to consider for authorization State regulation of the types of standards or requirements listed at § 1074.12(b), we now view the provisions at § 1074.12(b) as unnecessarily restricting such consideration beyond what the statute requires at CAA section 209(e)(1)(B). Moreover, as explained in the April 27, 2023, proposal, we have identified certain developments that indicate that the categorial exclusion of some of the specified standards and requirements for the 133 percent of the useful life period of new locomotives or engines is no longer in all cases appropriate. Consequently, we believe it is important that our regulations not unnecessarily constrain EPA's future evaluation of a State request for authorization to regulate non-new locomotives and non-new engines used in locomotives under § 1074.101. Indeed, one reason for this revision is to eliminate any such constraint that is apparent in current 40 CFR 1074.12(b).

EPA notes that concerns may exist related to authorization requests that include forms of State controls that could significantly affect the design or manufacture of a new locomotive or new engines used in locomotives. As explained in the April 27, 2023, proposal, EPA recognizes that significant advances in technology have occurred in the intervening years since 1998, along with innovative forms of regulations. Any State authorization application that includes locomotive emission regulations would be subject to consideration of whether such regulations significantly affect the design or manufacture of a new locomotive or new engine used in a locomotive to the extent such is prohibited by section 209(e)(1)(B). EPA will evaluate any such application on a case-by-case basis to determine if the controls may be authorized under section 209(e)(2)(A) and 40 CFR 1074.101 through 1074.110.

Our proposed rule to revise the preemption language did not reopen any aspect of the Federal regulatory program for new locomotives and new engines used in locomotives set forth at 40 CFR part 1033. Consequently, none of the changes to our preemption regulations will have any impact on EPA's regulation of new locomotives or engines used in locomotives (including freshly built and remanufactured) under 40 CFR part 1033. There are no potential costs or benefits to regulated entities of any size as a result of these amendments to our preemption regulations. Although several commenters on our proposed rule urged EPA to take steps toward more stringent Federal emissions standards for locomotives, those comments are beyond the scope of this rulemaking as EPA did not propose or seek comments on any amendments to EPA's Federal regulations to reduce the air emissions from new locomotives or new engines used in locomotives. EPA reserves its discretion to revisit the part 1033 regulations separately.

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

This action is not a significant regulatory action as defined in Executive Order 12866, as amended by Executive Order 14094, and was therefore not subject to a requirement for Executive Order 12866 review.

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

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This rule simply revises EPA's regulations to align with section 209 of the Clean Air Act and to preserve for separate future adjudications under CAA section 209(e)(2) whether a State rule addressing non-new locomotives or engines would impermissibly relate to the control of emissions from new locomotives or engines under section 209(e)(1). As a result of this action alone there are no potential impacts to railroads, of any size.

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 has federalism implications because these revisions to part 1074 involve existing regulations that preempt State law under CAA section 209(e). In this rule, EPA is revising our locomotive preemption regulations to align with language Congress provided in section 209(e)(1)(B) and the congressional directive to EPA to implement the prohibition of State regulation of new locomotives and new engines used in locomotives while ensuring that States are not impeded from adopting standards and other requirements relating to the control of emissions as allowed by the CAA to address the contribution of air pollutant emissions from non-new locomotives and non-new engines used in locomotives to their air quality issues. EPA consulted with representatives of various State and local governments in developing this rule. Our outreach to State and local governments has satisfied Executive Order 13132. EPA solicited and received comments on this revision from many State and local officials. Specifically, we received a letter with strongly supportive comments signed by officials from 12 States, as well as supportive comments from the Ozone Transport Commission, National Association of Clean Air Agencies (NACAA), and Northeast States for Coordinated Air Use Management (NESCAUM).

This action does not have Tribal implications as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action. This action does not have substantial direct effects 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. In the development of the proposed Greenhouse Gas Emissions Standards for Heavy-Duty Vehicles—Phase 3 and this final rule, EPA engaged with our Tribal stakeholders. We did so primarily by offering government-to-government consultation upon request but also offered information sessions and presentations to Tribal audiences.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order.

This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. Since the action does not concern human health, EPA's Policy on Children's Health also does not apply.

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

This rulemaking does not involve technical standards.

EPA believes that this type of action does not concern human health or environmental conditions and therefore cannot be evaluated with respect to potentially disproportionate and adverse effects on communities with environmental justice concerns. This rule does not achieve reductions of locomotive emissions.

Although this action does not concern human health or environmental conditions, EPA recognizes that locomotive emissions are an environmental justice concern, and we promoted meaningful involvement in several ways. For example, we contacted individuals in environmental justice groups about the proposal and provided information about the public hearings and the comment period; provided information on our website in both Spanish and English; and provided Spanish translation during the public hearings. We received and considered comments from those with environmental justice concerns, as described in the Response to Comments document. 25

This action is subject to the CRA, and the 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).

Statutory authority for these revisions to our preemption regulations is found in CAA section 209(e)(2)(B), 42 U.S.C. 7543(e)(2)(B), which requires EPA to promulgate regulations implementing CAA section 209(e), which in turn addresses the prohibition of State standards regarding certain classes of new nonroad engines or new nonroad vehicles including new locomotives and new engines used in locomotives, as well as EPA's authorization criteria for certain California standards for other nonroad engines or nonroad vehicles.

Under CAA section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit (the Court) by January 8, 2024. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements. Section 307(d)(7)(B) of the CAA further provides that only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. This section also provides a mechanism for the EPA to reconsider the rule if the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within the period for public comment or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule. Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW, Washington, DC 20460. Under CAA section 307(b)(1), the filing of a petition for reconsideration shall not affect the finality of the rule for purposes of judicial review nor extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of the rule.

For the reasons set out in the preamble, EPA amends title 40, chapter I of the Code of Federal Regulations as set forth below.

FMCSA organizes this final rule as follows:

To view any documents mentioned as being available in the docket, go to https://www.regulations.gov/docket/FMCSA-2023-0122/document and choose the document to review. To view comments, click this final rule, then click “Browse Comments.” If you do not have access to the internet, you may view the docket online by visiting Dockets Operations at U.S. Department of Transportation 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

This final rule updates an incorporation by reference found at 49 CFR 385.4(b)(1) and referenced at § 385.415(b). The provision at § 385.4(b)(1) currently references the April 1, 2022, edition of CVSA's handbook titled “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.” The CVSA handbook contains inspection procedures and OOSC for inspections of shipments of transuranic waste and HRCQs of RAM. The OOSC, while not regulations, provide enforcement personnel nationwide, including FMCSA's State partners, with uniform enforcement tolerances for inspections. The material is available, and will continue to be available, for inspection at the FMCSA, Office of Safety, 1200 New Jersey Avenue SE, Washington, DC 20590 (Attention: Chief, Compliance Division) at (202) 366-1812. The document may be purchased from the Commercial Vehicle Safety Alliance, 6303 Ivy Lane, Suite 310, Greenbelt, MD 20770, (301) 830-6143, www.cvsa.org.

Nine updates distinguish the April 1, 2023, handbook edition from the 2022 edition. The updates are all described in detail in the July 24, 2023, notice of proposed rulemaking (NPRM) for this rule (88 FR 47437). The incorporation by reference of the 2023 edition does not impose new regulatory requirements.

Congress has enacted several statutory provisions to ensure the safe transportation of hazardous materials in interstate commerce. Specifically, in provisions codified at 49 U.S.C. 5105(d), relating to inspections of motor vehicles carrying certain hazardous material, and 49 U.S.C. 5109, relating to motor carrier safety permits (hereinafter “HMSPs”), the Secretary of Transportation is required to promulgate regulations as part of a comprehensive safety program on HMSPs. The FMCSA Administrator has been delegated authority under 49 U.S.C. 113(f) and 49 Code of Federal Regulations (CFR) 1.87(d)(2) to carry out the functions vested in the Secretary of Transportation related to HMSPs. Consistent with that authority, FMCSA has promulgated regulations under 49 CFR part 385, subpart E to address the congressional mandate on HMSPs. Those regulations are the underlying provisions to which the material incorporated by reference discussed in this rule is applicable.

In 1986, the U.S. Department of Energy and CVSA entered into a cooperative agreement to develop a higher level of inspection procedures, out-of-service (OOS) conditions and/or criteria, an inspection decal, and a training and certification program for inspectors to conduct inspections on shipments of transuranic waste and HRCQs of RAM. CVSA developed the North American Standard Level VI Inspection Program for Transuranic Waste and Highway Route Controlled Quantities of Radioactive Material. This inspection program for select radiological shipments includes inspection procedures, enhancements to the North American Standard Level I Inspection, radiological surveys, CVSA Level VI decal requirements, and the “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.” As of January 1, 2005, all vehicles and carriers transporting HRCQs of RAM are regulated by the U.S. Department of Transportation. All HRCQs of RAM must pass the North American Standard Level VI Inspection prior to the shipment being allowed to travel in the United States. All highway route-controlled quantities of RAM shipments entering the United States must also pass the North American Standard Level VI Inspection either at the shipment's point of origin or when the shipment enters the United States.

Operational requirements for motor carriers transporting hazardous materials for which a HMSP is required are prescribed by § 385.415. Section 385.415(b) requires that motor carriers ensure a pre-trip inspection is performed on each motor vehicle to be used to transport a HRCQ of a Class 7 (radioactive) material, in accordance with the requirements of CVSA's handbook titled “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.”

According to 2019 through 2022 data from FMCSA's Motor Carrier Management Information System (MCMIS), approximately 3 million Level I through Level VI inspections were performed annually. Nearly 96.3 percent of these were Level I, 1 Level II, 2 and Level III  3 inspections. During the same period, an average of 756 Level VI inspections were performed annually, comprising only 0.03 percent of all inspections. On average, OOS violations were cited in only 6 Level VI inspections annually (0.8 percent), whereas on average, OOS violations were cited in 233,259 Level I inspections (26 percent), 264,926 Level II inspections (26 percent), and 57,990 Level III inspections (6 percent) annually. As these statistics demonstrate, OOS violations are cited in a far lower percentage of Level VI inspections than Level I, II, and III inspections, due largely to the enhanced oversight and inspection of these vehicles because of the sensitive nature of the cargo being transported.

The changes to the 2023 edition of the CVSA handbook are intended to ensure clarity in the presentation of the OOS conditions and are generally editorial or ministerial. As discussed below, FMCSA does not expect the changes made in the 2023 edition of the CVSA handbook to affect the number of OOS violations cited during Level VI inspections.

FMCSA published an NPRM on July 24, 2023 (88 FR 47437). Because the incorporation by reference found at § 385.4(b)(1) and referenced at § 385.415(b) references the outdated April 1, 2022, edition of CVSA's “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403,” the NPRM proposed to incorporate by reference the current April 1, 2023, edition. Nine updates distinguish the April 1, 2023, edition from the 2022 edition. Each of the changes was described and discussed in detail in the NPRM. Generally, the changes serve to clarify or provide additional guidance to inspectors regarding uniform implementation and application of the OOSC, and none is expected to affect the number of OOS violations cited during Level VI inspections. The incorporation by reference of the 2023 edition does not change what constitutes a violation of FMCSA regulations.

FMCSA solicited comments concerning the NPRM for 30 days ending August 23, 2023. By that date, two comments were received: one from a private citizen supporting the NPRM, and one from CVSA, which commended FMCSA for publishing the NPRM and encouraged the Agency to finalize the rule and update the incorporation by reference.

Congress authorized DOT by statute to promote safe transportation of hazardous materials in interstate commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures for inspections and safety permits for motor vehicles carrying certain hazardous materials (49 U.S.C. 5105(d); 49 U.S.C. 5109). The purpose of this rule is to incorporate by reference the 2023 edition of the CVSA handbook outlining the OOSC and inspection procedures for commercial highway vehicles transporting RAM. The provisions within the CVSA handbook are intended to operate holistically in addressing a range of issues necessary to ensure the safe transport of hazardous materials. However, FMCSA recognizes that certain provisions focus on unique topics. Therefore, FMCSA finds that the various provisions within the CVSA handbook are severable and able to operate functionally if one or more provisions were rendered null or otherwise eliminated. The remaining provision or provisions within the handbook will continue to operate functionally if any one or more provisions were invalidated and any other provision(s) remained. In the event a court were to invalidate one or more of the CVSA handbook's unique provisions, the remaining provisions should stand, thus allowing this congressionally mandated program to continue to operate.

Section 385.4(b)(1), as amended on December 22, 2022, references the April 1, 2022, edition of the CVSA handbook. This final rule replaces the reference to the April 1, 2022, edition date with a reference to the new edition date of April 1, 2023.

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

The final rule updates an incorporation by reference from the April 1, 2022, edition to the April 1, 2023, edition of CVSA's handbook titled “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.” FMCSA reviewed its MCMIS data on inspections performed from 2019 to 2022 and does not expect the handbook updates to have any effect on the number of OOS violations cited during Level VI inspections. Therefore, the final rule's impact would de minimis.

This rule is not a major rule as defined under the Congressional Review Act (5 U.S.C. 801-808). 4

The Service is establishing a nonessential experimental population (NEP) of the gray wolf ( Canis lupus ) in the State of Colorado, under section 10(j) of the Act.

Please refer to the proposed section 10(j) rule for the gray wolf in Colorado published on February 17, 2023 (88 FR 10258), for a detailed description of previous Federal actions concerning this 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, we solicited independent scientific review of the proposed rule. We invited seven independent peer reviewers and received four responses. The peer reviews can be found at https://www.regulations.gov and https://fws.gov/library/categories/peer-review-plans. In preparing this final rule, we incorporated the results of these reviews, as appropriate, into this final rule. A summary of the peer review comments, and our responses can be found in the Summary of Comments and Recommendations below.

As a result of comments, additional data received during the comment period, and additional analysis, several changes were made to the rule we proposed on February 17, 2023 (88 FR 10258). In this final rule, we:

• Improved consistency with the State of Colorado's Wolf Restoration and Management Plan (State Plan) (CPW 2023b, entire) by clarifying that take of gray wolves attacking pets is not excepted but take of gray wolves that are attacking “working dogs,” or dogs that guard or herd livestock, is excepted.

• Recognized the sovereignty of Tribal nations by adding a provision to allow take of gray wolves that are significantly impacting ungulate populations on Tribal reservation lands of the Ute Mountain Ute and Southern Ute Tribes in the State of Colorado.

• Changed several terms: In regard to justification for written take authorization, “shoot-on-sight” is now “depredation”; we have changed references in the proposed rule from “problem wolves” to “depredating” wolves; and “sport hunting” is now “recreational harvest.”

• Clarified that a “designated agent” is an employee of a Federal, State, or Tribal agency who is authorized or directed by the Service to conduct management activities for the gray wolf.

• Removed the term “relocate” from the definition of “remove.”

• Removed the term “substantial income” from the definition of “livestock producer.”

• Clarified that take would not be excepted if there is any evidence of baiting of gray wolves, including the use of unusual attractants, artificial feeding, or intentional feeding.

In the proposed rule published on February 17, 2023 (88 FR 10258), we requested that all interested parties submit written comments on the proposal by April 18, 2023. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We held public information meetings to present information and obtain feedback on March 14, 15, 16, 22, and 28, 2023. We issued news releases and posted them on our website announcing the proposal and the dates of the public meetings. During the 60-day comment period, we received over 20,000 separate comments associated with 4,290 pieces of correspondence, including form letters with multiple signatures, such as 1 correspondence having 16,233 signatures.

Below, we summarize the substantive comments pertinent to the rulemaking and our responses to those comments. We considered substantive comments to be those that provided information relevant to our requested action, such as data, pertinent anecdotal information, or opinions backed by relevant experience or information, and literature citations. Due to the similarity of many comments, we combined multiple comments into a single, synthesized comment for many issues. We considered nonsubstantive those comments that expressed a statement or opinion without providing supporting information or relevance, restated data or information that we already have but without an alternate perspective to consider, or were beyond the scope of our proposed action. Comments from peer reviewers, Federal agencies, State agencies, and Tribes are grouped separately. All substantive information provided during the comment periods has either been incorporated directly into this final determination or is addressed below. Appendix D of our final environmental impact statement provides a full summary report of our response to comments that we received on the proposed rule.

As discussed in Peer Review above, we received comments on our proposed rule from four peer reviewers. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the contents of the proposed rule. We summarize substantive peer reviewer comments below.

The peer reviewers generally concurred with our methods and conclusions and provided additional literature, information, clarifications, and suggestions to improve the final rule. For example, all four peer reviewers agreed that our description and analysis of the biology, habitat, population trends, conservation status, and distribution of the species is accurate and that our conclusions are accurate and supported by the provided evidence. Three peer reviewers shared that our proposed rule did not have any significant oversights, omissions, or inconsistencies, while one peer reviewer recommended that we more fully consider the dispersal and expansion capabilities of the species in terms of the geographic separation of the NEP. Three peer reviewers also recommended that we more fully explore the potential for individuals in the NEP to interact with the Mexican wolf ( Canis lupus baileyi ), and one peer reviewer commented that we should clarify whether the NEP would include Mexican wolves. In Comments from States, below, we have provided additional information regarding the Mexican wolf and clarified that this NEP applies only to the gray wolf. Finally, the peer reviewers provided additional literature for our consideration, such as an additional citation regarding the dispersal of the gray wolf into Colorado, and we incorporated the recommended literature, as needed. We address specific comments from the peer reviewers below.

Comment: A peer reviewer suggested that we may have overestimated the ability for small, newly established populations of the gray wolf to withstand high rates of human-caused mortality due to life-history traits such as high reproductive potential and dispersal capabilities.

Our response: In the past, reintroduced populations of the gray wolf in the Northern Rocky Mountains (NRM) population area demonstrated steady population growth despite low levels of human-caused mortality. However, in the final rule we have clarified that high levels of natural and human-caused mortality during the early establishment period may limit population growth and make the State of Colorado's gray wolf population goals more challenging (see Actions and Activities in Colorado That May Affect Introduced Gray Wolves, below).

Comment: A peer reviewer commented that the proposed rule provides take provisions for gray wolves without addressing the possibility that unusual attractants, artificial feeding, or intentional feeding may have been involved.

Our response: In the final rule, we have clarified that take would not be excepted if there is any evidence of baiting of gray wolves, including the use of unusual attractants, artificial feeding, or intentional feeding.

Comment: A peer reviewer recommended that we more thoroughly discuss or define the State of Colorado's definition of success for their reintroduction efforts.

Our response: In the final rule, we have summarized the State of Colorado's reintroduction objectives, as outlined in their management plan (CPW 2023b, entire), and clarified that our success objectives for the NEP are similar.

One Federal agency, the U.S. Department of Agriculture (USDA) Forest Service, provided comments on the proposed rule:

Comment: The USDA Forest Service indicated general support for the action but provided comments regarding the potential for gray wolves to disperse south out of the NEP.

Response: We provide additional information regarding this issue in Comments From States, below. To summarize, any wolf originating from the Colorado NEP area and dispersing beyond its borders may be managed by the wolf management regulations established for that area or may be returned to the Colorado NEP area at least until the State of Colorado achieves its recovery goals for the gray wolf.

We received comments from five State wildlife agencies and one State agriculture agency. The States that commented were generally supportive of the proposed rule. Three of the States expressed concern over reintroduced wolves dispersing out of the NEP and potentially interacting with the Mexican wolf and specifically requested research and scientific collection permits under section 10(a)(1)(A) of the Act to be able to return wolves to Colorado. The State of Colorado has agreed to accept the return of gray wolves to the State, until their recovery goals are achieved, at which time they will revisit this commitment (CPW 2023a). The State of Colorado's acceptance of returned gray wolves is to ensure that their restoration plan is successful. To help minimize potential interactions and to help protect Mexican wolf genetic integrity, we have simultaneously issued a section 10(a)1(A) permit to be held by the Service, which will authorize our designated agents to assist in the capture and return of wolves originating from the Colorado NEP.

Comment: Commenters stated that the Mexican wolf was listed as a separate subspecies of gray wolf in 2015, and that this listing recognized the unique physical, ecological, and genetic differences of the Mexican wolves from all other gray wolves. The commenters stated that these unique differences occurred and evolved over time due to separation of Mexican wolves from the larger gray wolves to the north, so were concerned that the proposed release and establishment of an experimental population of larger northern wolves in Colorado closer to the wild Mexican wolf population will dramatically increase the risk of strong and irreversible genetic swamping of the Mexican wolf.

Our response: We recognize the unique characteristics of the Mexican wolf and the recovery efforts of our agency and the States of Arizona and New Mexico. We have simultaneously issued a section 10(a)(1)(A) permit to allow our designated agents to capture gray wolves that venture out of the NEP so that they may be returned to Colorado. Additionally, we do not intend to initiate or allow adaptive introgression between gray wolves and Mexican wolves as part of the genetic management of Mexican wolves (87 FR 39357, July 1, 2022).

Comment: A commenter suggested that we include information in the final rule about the State of Wyoming's predator management area, where licensing for lethal take is not needed.

Our response: This rule applies only to management activities for the gray wolf that take place within the NEP's boundary in the State of Colorado, so we have not included additional information regarding activities in the State of Wyoming.

Comment: A commenter recommended that the final rule provide assurances that the NEP wolves in Colorado will not be considered “sensitive species” by other Federal agencies, such as the Bureau of Land Management or the USDA Forest Service.

Our response: We do not have the authority to dictate which species receive sensitive species status under other Federal agencies' conservation frameworks.

Comment: A commenter recommended that the final rule consider all gray wolves that may disperse into the State of Utah as part of the NEP, which could allow for their immediate capture and return to the State of Colorado.

Our response: The exceptions provided in the rule are limited to the NEP area identified in the regulation ( i.e. the State of Colorado). We use this boundary as a means to identify the NEP as required by our regulations. Any gray wolf that enters Utah will take on endangered status under the Act. Relocation of gray wolves to Colorado will be conducted under other authorities under the Act.

Comment: A commenter stated that we inconsistently define “occupied range” and that the State of Colorado's proposed reintroduction zones are within the species' current range.

Our response: We have verified that we use the term “occupied range” consistently throughout the rule. Additionally, although two male gray wolves are known to occur within the State of Colorado, they do not meet the definition of a population or a pack, as explained in this preamble to the final rule, so the NEP is wholly geographically separate from other populations of the species.

Comment: A commenter noted that the rule's requirement to report lethal or injurious take within 24 hours may be impractical due to the remoteness of some areas.

Our response: In response to this comment, we added language to the reporting requirement to give additional time when necessary.

Comment: A commenter noted that the rule should be consistent with CPW's State Plan (CPW 2023b, entire), which does not allow killing of a wolf that is attacking pets.

Our response: We have updated the final rule accordingly, so that it does not provide an exception for take of gray wolves that are attacking pets. This change improves consistency with the State of Colorado's plan. Additionally, we have added a definition for “working dogs” and a take exception for gray wolves that are attacking working dogs that are guarding or herding livestock. Pets are typically under the immediate control of their owner, so the owner may opportunistically harass wolves if they are encountered.

Comment: A commenter stated that annual reporting should be required for only 5 years post-reintroduction but did not provide any rationale or information to support this suggestion.

Our response: The regulatory requirements under section 10(j) of the Act for designation of a nonessential experimental population require a process for periodic review and evaluation of success or failure of the release and the effect on recovery of the species. While annual reporting is not specifically required, we must continue to periodically assess the effects of the NEP on recovery for as long as the species is federally listed. We have determined that annual reporting is appropriate, because this frequency of reporting allows for more quickly adjusting management and responding to changing conditions.

Comment: In the exception for take by landowners on their private land, the word “their” should be removed, because it would exclude the exception for individuals who lease private lands for livestock production but do not own the property.

Our response: We have removed the term “their” from the exception, such that a lessee would also be able to protect their livestock under the exception.

We received one comment letter from a Tribe, the Southern Ute Indian Tribe. The Southern Ute Indian Tribe generally supports the action and provided comments that we summarize below along with our responses.

Comment: The Southern Ute Indian Tribe requested that the final rule include a provision to take gray wolves if they are unacceptably reducing ungulate populations. The Tribe requested that we add this provision to recognize the sovereignty of Tribal nations and to be consistent with the State of Colorado's management plan (CPW 2023b, entire) that also recognizes Tribal sovereignty.

Our response: In response to this comment, we added a provision to the rule to allow Tribes in the State of Colorado to take wolves that are having an unacceptable impact on wild ungulate herds or populations. However, the exception is limited to Tribal lands, does not include areas outside of Tribal reservation lands, and requires a science-based, peer-reviewed determination that the impacts to the ungulate populations are significant before take of gray wolves can be authorized.

Comment: The Southern Ute Indian Tribe requested that wolf management options in the rule include the removal of problem wolves (which we are now referring to as “depredating wolves”) from Tribal land upon request.

Our response: The rule allows the Tribes to become designated agents, which will allow them to address wolf management issues. Additionally, we will be available to assist through education and training, and will continue to coordinate and assist the State and the Tribes to help resolve conflicts, as time and resources allow.

Comment: Commenters both supported and opposed the provisions of the rule that would allow for the lethal control of gray wolves. Some commenters asked that we prohibit most forms of lethal take of gray wolves in the NEP, with some supporting lethal take only in defense of human life. Some commenters requested that the allowable take be more liberal, while others felt that lethal control can lead to less public respect and tolerance of wolves and may encourage more poaching. Some commenters recommended several nonlethal measures to manage depredating wolves.

Our response: The final rule recognizes that lethal take is a management tool for the gray wolf that may be necessary in specific situations, such as when nonlethal management actions are ineffective and may not resolve conflict. Nonlethal tools may be appropriate and effective in some situations, but their effectiveness depends on various characteristics of the area and individual livestock operations. For instance, many tools such as fladry (strips of fabric mounted along fencelines to deter wolves), radioactivated guard boxes, and electric fencing, are effective only in small, localized areas, and innovative tools, such as diversionary feeding, range riding, and hazing, have reduced wolf depredations in certain situations. We anticipate that lethal removal will be used as a last resort to balance conserving the species and preventing depredations.

Comment: Commenters noted that the regulations for depredation (formerly called “shoot-on-sight” in the proposed rule) and opportunistic and intentional harassment are too vague and that key terms like “harassing” and “molesting” are not clearly defined.

Our response: In the final rule, we have clarified the definition of “in the act of attacking” and provided examples of harassment activities. Our definition is consistent with section 3 of the Act and other section 10(j) rules. Additionally, the final rule now specifies the requirements to qualify for a “depredation” (called “shoot-on-sight” in the proposed rule) authorization. The terms “take,” “harm,” and “harass” are defined in section 3 of the Act, so we have not defined them in this rule.

We provide detailed background information on gray wolves in the lower 48 United States in a separate Gray Wolf Biological Report (Service 2020, entire) and the 2020 final rule to delist the two currently listed C. lupus entities under the Act (85 FR 69778, November 3, 2020). Information in these documents is relevant to reintroduction efforts for gray wolves that may be undertaken in Colorado, and the report can be found along with this rule at https://www.regulations.gov in Docket No. FWS-R6-ES-2022-0100 (see Supplemental Documents ). We summarize relevant information from these documents below.

Gray wolves are the largest wild members of the canid (dog) family, with adults ranging in weight from 18 to 80 kilograms (40 to 175 pounds), depending on sex and geographic locale. Gray wolves are highly territorial, social animals that live and hunt in packs. They are well adapted to traveling fast and far in search of food, and to catching and eating large mammals. In North America, they are primarily predators of medium to large mammals, including deer, elk, and other species, and are efficient at shifting their diet to take advantage of available food resources (Service 2020, p. 6).

Gray wolves have a broad circumpolar range. In the lower 48 United States, the range and number of gray wolves declined significantly during the 19th and 20th centuries primarily due to humans killing wolves through poisoning, unregulated trapping and shooting, and government-funded wolf extermination efforts (Service 2020, pp. 9-14). When we first listed two subspecies of the gray wolf under the Act in 1974, gray wolves had been eliminated from most of their historical range within the lower 48 United States. Outside of Alaska, wolves occurred in only 2 places within the lower 48 United States: An estimated 1,000 wolves persisted in northeastern Minnesota, and a small, isolated group of about 40 wolves occurred on Isle Royale, Michigan (Service 2020, pp. 12-14).

During the years since the species was reclassified in 1978, gray wolves within the lower 48 United States expanded in distribution and increased in number (Service 2020, pp. 10, 14). Gray wolves within the lower 48 United States now exist primarily in two large, stable or growing metapopulations in two separate geographic areas in the lower 48 United States—one in the western Great Lakes area of the Eastern United States and one in the Western United States (figure 1) (Service 2020, p. 27). Subpopulations of gray wolves within each of these metapopulations are well-connected as evidenced by documented movements between States and high levels of genetic diversity (Service 2020, p. 27). The western Great Lakes metapopulation consists of more than 4,200 individuals broadly distributed across the northern portions of Michigan, Minnesota, and Wisconsin (Service 2020, p. 27). This metapopulation is also connected, via documented dispersals, to the large and expansive population of about 12,000-14,000 wolves in eastern Canada. As a result, gray wolves in the Great Lakes area do not function as an isolated metapopulation of 4,200 individuals in 3 States, but rather as part of a much larger “Great Lakes and Eastern Canada” metapopulation (Service 2020, pp. 27-28).

Gray wolves in the Western United States are distributed across the NRM and into western Oregon, western Washington, northern California, and most recently in north-central Colorado (figure 1, above; Service 2020, p. 28). Based on the most current abundance estimates of gray wolves, Idaho estimated 1,337 gray wolves inhabited the State as of August 2022 (Idaho Department of Fish and Game (IDFG) 2023, unpaginated), and Montana had an estimated 1,087 gray wolves at the end of 2022 (Parks et al. 2023, pp. 9-11). In addition, the most recent year-end minimum counts for 2022 indicated at least 338 gray wolves in Wyoming, 216 wolves in Washington, 178 wolves in Oregon, and 18 in California (California Department of Fish and Wildlife (CDFW) 2022, unpaginated; Oregon Department of Fish and Wildlife (ODFW) 2023, p. 2; Washington Department of Fish and Wildlife (WDFW) et al. 2023, pp. 2-3; Wyoming Game and Fish Department (WGFD) et al. 2023, p. 3).

Until recently, only lone wolves had been confirmed in Colorado, beginning with a dispersing individual that died in 2004 from a vehicle collision (CPW 2023b, p. 4). A disperser from Wyoming was first documented in north-central Colorado during the summer of 2019 and paired up with another wolf during the winter of 2020-2021 (CPW 2023b, p. 4). This pair produced offspring in spring 2021, becoming the first documented reproductively active pack in Colorado in recent history. However, as of June 2023, only two males from this pack remain in Colorado (Eric Odell, pers. comm., CPW, June 26, 2023). The two individual wolves do not meet the definition of a population of gray wolves used by the Service for previous NEP designations in the NRM ( i.e., two breeding pairs successfully raising at least two pups for 2 consecutive years; Service 1994, appendix 8). In January of 2020, CPW personnel also confirmed at least six wolves traveling together in Moffatt County in northwestern Colorado (Service 2020, p. 9). Later that year, CPW personnel documented only one wolf in that area, and, at present, there is no indication that any wolf or wolves remain in that part of Colorado. As such, we do not consider any gray wolves currently found in Colorado to constitute a population.

Gray wolves are highly territorial social animals and group hunters, normally living in packs of 7 or fewer but sometimes attaining pack sizes of 20 or more (Service 2020, p. 6). Wolves reach sexual maturity at 1-4 years for males and 1-5 years for females (Mech et al. 2016, entire; Wikenros et al. 2021, entire) and, once paired with a mate, may produce young annually until they are over 10 years old. Litters are born from early April into May and can range from 1 to 11 pups but generally include 5 to 6 pups (Service 2020, p. 6). Normally a pack has a single litter annually, however, multiple litters have been documented in approximately 25 percent of packs annually in Yellowstone National Park (Stahler et al. 2020, p. 52). Offspring usually remain with their parents for 10-54 months before dispersing (reviewed by Mech and Boitani 2003, p. 7; Jimenez et al. 2017, p. 1).

The gray wolf is highly adaptable and can successfully occupy a wide range of habitats provided adequate prey (primarily ungulates) exists and human-caused mortality is sufficiently regulated (Mech 2017, pp. 312-315). Wolf packs typically occupy and defend a territory of 33 to more than 2,600 square kilometers (km 2 ) (13 to more than 1,004 square miles (mi 2 )), with territories tending to be smaller at lower latitudes (Mech and Boitani 2003, p. 163; Fuller et al. 2003, pp. 187-188). The large variability in territory size is likely due to differences in pack size; prey size, distribution, and availability; lag time in population responses to changes in prey abundance; and variation in prey vulnerability ( e.g., seasonal age structure in ungulates) (Mech and Boitani 2003, p. 163).

To identify areas of suitable wolf habitat in the conterminous United States, researchers have used models that relate the distribution of wolves to characteristics of the landscape. These models have shown the presence of wolves is correlated with prey availability and density, livestock density, road density, human density, land ownership, habitat patch size, and forest cover (Mladenoff et al. 1995, pp. 284-292; Mladenoff et al. 1999, pp. 41-43; Carroll et al. 2003, entire; Carroll et al. 2006, p. 542; Oakleaf et al. 2006, pp. 558-559; Hanley et al. 2018, pp. 6-8).

In the Western United States, habitat models have identified suitable wolf habitat in the northern Rocky Mountains, southern Rocky Mountains (including Colorado and Utah), the Cascade Mountains of Washington and Oregon, and a small portion of the northern Sierra Nevada (Bennett 1994, entire; Switalski et al. 2002, entire; Carroll et al. 2003, entire; Carroll et al. 2006, entire; Larsen and Ripple 2006, entire; Oakleaf et al. 2006, pp. 558-559; Maletzke et al. 2015, entire; ODFW 2015, entire; Ditmer et al. 2022, entire). Large blocks of suitable habitat have been identified in the central and southern Rocky Mountains but are currently unoccupied, with the exception of occasional dispersing wolves and two male wolves in north-central Colorado.

Gray wolves rarely disperse before 10 months of age, and most commonly disperse between 1-3 years of age (Gese and Mech 1991, p. 2949; Treves et al. 2009, entire; Jimenez et al. 2017, p. 589). Generally, by the age of 3 years, most wolves will have dispersed from their natal pack to locate social openings in existing packs or find a mate and form a new pack (Service 2020, p. 7). Dispersers may become nomadic and cover large areas as lone animals, or they may locate unoccupied habitats and members of the opposite sex to establish their own territorial pack (Jimenez et al. 2017, p. 589). Dispersal distances in North America typically range from 65 to 154 kilometers (km) (40 to 96 miles) (Jimenez et al. 2017, p. 585), although dispersal distances of several hundred kilometers are occasionally reported (Jimenez et al. 2017, p. 588). The ability to disperse long distances allows populations of gray wolves to quickly expand and recolonize vacant habitats provided rates of human-caused mortality are not excessive ( e.g., Mech 1995, pp. 272-273; Boyd and Pletcher 1999, entire; Treves et al. 2009, entire; Jimenez et al. 2017, entire; Mech 2017, entire). However, the rate of recolonization can be affected by the extent of intervening unoccupied habitat between the source population and newly colonized area, as Allee effects (reduced probability of finding a mate at low densities) are stronger at greater distances from source populations (Hurford et al. 2006, p. 250; Stenglein and Van Deelen 2016, entire).

Targeted extirpation programs and unregulated, human-caused mortality was the primary factor that caused population declines of gray wolves across the lower 48 States during the late 1800s and early 1900s. Although there are some places wolves are not likely to persist long term due to high human or livestock densities, the regulation of human-caused mortality has been a primary factor contributing to increased wolf abundance and distribution in the lower 48 States. Regulation of human-caused mortality has significantly reduced the number of wolf mortalities caused by humans, and, although illegal and accidental killing of wolves is likely to continue with or without the protections of the Act, at current levels those mortalities have had minimal impact on the abundance or distribution of gray wolves. The high reproductive potential of wolves, and their innate behavior to disperse and locate social openings or vacant suitable habitats, allows populations of gray wolves to withstand relatively high rates of human-caused mortality (Service 2020, pp. 8-9). See Historical and Current Range and Habitat Use sections, above, for additional information.

Following our 1978 reclassification of the species under the Act, our national wolf strategy focused on conservation of gray wolves in three regions: the western Great Lakes; the NRM; and Mexican wolves in the Southwest and Mexico. We drafted recovery plans and implemented recovery programs for gray wolves in these three regions (Service 1987, entire; Service 1992, entire; Service 2017, entire). The revised NRM Wolf Recovery Plan established recovery criteria for wolves in three recovery areas across Idaho, Montana, and Wyoming (Service 1987, entire), while the Recovery Plan for the Eastern Timber Wolf (Service 1992, entire) addressed populations of gray wolves in the upper Midwest. Mexican wolves have been listed separately as an endangered subspecies of gray wolf since 2015 and are not addressed in this rule.

The currently listed entity of gray wolf, to which the Colorado NEP belongs, includes all or parts of 44 States; this listed entity encompasses populations of gray wolves in the Great Lakes States of Minnesota, Michigan, and Wisconsin as well as wolves outside the delisted NRM in the Western United States. We have not included gray wolves outside the NRM and western Great Lakes in any recovery plan. However, as noted above, the presence of gray wolves in California, western Oregon, and western Washington, as well as the two remaining wolves in Colorado, is a result of dispersal and recolonization from core populations in the NRM in addition to reproduction and dispersal from resident packs in these States and neighboring Canadian provinces.

There are no Federal recovery plans addressing wolf recovery in western States outside of Idaho, Montana, and Wyoming. However, the States of California, Colorado, Oregon, Washington, and Utah have demonstrated a commitment to wolf conservation by developing management plans or codifying laws and regulations that provide mechanisms to regulate wolf mortality, similar to most other species of wildlife managed under State authority. This includes the passage of a voter-led initiative in Colorado calling specifically for the reintroduction of gray wolves to the western portion of the State (Colorado Revised Statute 33-2-105.8). At the end of 2022, 10 packs of gray wolves (totaling at least 52 wolves and 6 breeding pairs) were documented in western Washington where wolves are federally listed (WDFW et al. 2023, p. 17). In the western two-thirds of Oregon, where gray wolves are federally listed, there were a minimum of 38 wolves in 10 groups (ODFW defines a group as 2 or more wolves traveling together (ODFW 2023, p. 4)); 4 of these groups were considered breeding pairs at the end of 2022 (ODFW 2023, pp. 5-6). Wolves originating from Oregon have also expanded their range into California, where a minimum of 18 wolves in 3 packs were documented at the end of 2022 (CDFW 2022, entire).

In addition to gray wolves found in the western States outside of the delisted NRM population, the Great Lakes metapopulation, consisting of more than 4,200 wolves, is broadly distributed across Minnesota, Michigan, and Wisconsin (Erb and Humpal 2022, entire; Wisconsin Department of Natural Resources (WI DNR) 2022, entire; Michigan Department of Natural Resources (MI DNR) 2023, entire). Recently, both Michigan and Minnesota updated their State wolf management plans (MI DNR 2022, entire; Minnesota Department of Natural Resources 2023, entire). The WI DNR recently revised their draft wolf management plan and will present it to their Natural Resource Board in October 2023 to determine next steps to finalize the plan (WI DNR 2023, entire).

The NRM Wolf Recovery Plan was approved in 1980 (Service 1980, p. i) and revised in 1987 (Service 1987, p. i). The recovery goal for the NRM was reevaluated and, when necessary, modified as new scientific information warranted (Service 1987, p. 12; Service 1994, appendices 8 and 9; Fritts and Carbyn 1995, p. 26; Bangs 2002, p. 1; 73 FR 10514, February 27, 2008; 74 FR 15123, April 2, 2009). The Service's resulting recovery goal for the NRM population of gray wolves was 30 or more breeding pairs, defined as an adult male and an adult female wolf that have produced at least 2 pups that survived until December 31 of the year of their birth during the previous breeding season (Service 1994), comprising at least 300 wolves equitably distributed among Idaho, Montana, and Wyoming for 3 consecutive years, with genetic exchange (either natural or, if necessary, agency managed) between subpopulations. To provide a buffer above these minimum recovery levels, each State was to manage for at least 15 breeding pairs and 150 wolves in midwinter (77 FR 55530 at 55538-55539, September 10, 2012; 74 FR 15123 at 15132, April 2, 2009). For additional information on NRM wolf recovery goals, see 74 FR 15123 (April 2, 2009) at pp. 15130-15135 and references therein.

Wolves in the NRM distinct population segment (DPS) have recovered and were delisted. The NRM population achieved its numerical and distributional recovery goals at the end of 2000 (Service et al. 2008, table 4). The temporal portion of the recovery goal was achieved in 2002 when the numerical and distributional recovery goals were exceeded for the third successive year (Service et al. 2008, table 4). In 2009, we concluded that gray wolves in the NRM far exceeded recovery goals. We also concluded that the NRM population: (1) Had at least 45 reproductively successful packs and 450 individual wolves each winter (near the low point in the annual cycle of a wolf population); (2) was equitably distributed within the 250,000-km 2 (100,000-mi 2 ) area containing 3 areas of large core refugia (National Parks, wilderness areas, large blocks of remote secure public land) and at least 170,228 km 2 (65,725 mi 2 ) of suitable wolf habitat; and (3) was genetically diverse and had demonstrated successful genetic exchange through natural dispersal and human-assisted migration management between all 3 core refugia (74 FR 15123, April 2, 2009). Gray wolves in the NRM remain well above the recovery goals established for this region (see Historical and Current Range, above).

To date, purposeful reintroduction of gray wolves to Colorado has not occurred; current wolf occupancy in Colorado is the result of natural wolf dispersal from the NRM population (Service 2020, pp. 15-19, 28; see Historical and Current Range, above). The reintroduction of gray wolves in Idaho and Wyoming in the 1990s contributed to achieving the recovery goals for the NRM population in 2002 (Service et al. 2008). For additional details on NRM reintroduction efforts, please see our biological report (Service 2020, entire) and Release Procedures in this document, below.

Section 9 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the prohibitions afforded to threatened and endangered species. Section 9 of the Act prohibits take of endangered wildlife. “Take” is defined by the Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitat. It mandates that all Federal agencies use their existing authorities to further the purposes of the Act by carrying out programs for the conservation of listed species. It also requires that Federal agencies, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the Act does not affect activities undertaken on private land unless they are authorized, funded, or carried out by a Federal agency.

The 1982 amendments to the Act (16 U.S.C. 1531 et seq. ) included the addition of section 10(j), which allows for populations of listed species planned to be reintroduced to be designated as “experimental populations.” The provisions of section 10(j) were enacted to ameliorate concerns that reintroduced populations will negatively impact landowners and other private parties, by giving the Secretary of the Interior greater regulatory flexibility and discretion in managing the reintroduced species to encourage recovery in collaboration with partners, especially private landowners. Under section 10(j) of the Act, and our implementing regulations at 50 CFR 17.81, the Service may designate as an experimental population a population of an endangered or threatened species that will be released into habitat that is capable of supporting the experimental population outside the species' current range. Under section 10(j) of the Act, we determine whether or not an experimental population is essential to the continued existence of the species based on the best available science. Our regulations define an essential population as one whose loss would be likely to appreciably reduce the likelihood of the survival of the species in the wild. All other experimental populations are to be classified as “nonessential” (50 CFR 17.80(b)).

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 (50 CFR 17.82). The designation as an experimental population and treatment as a threatened species allows us to develop tailored “take” prohibitions that are necessary and advisable to provide for the conservation of the species. 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.

Section 7(a)(2) of the Act requires that Federal agencies, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or adversely modify its critical habitat. For the purposes of section 7 of the Act, we treat an NEP as a threatened species when the population is located within a National Wildlife Refuge or unit of the National Park Service (50 CFR 17.83; see 16 U.S.C. 1539(j)(2)(C)(i)). When NEPs are located outside of a National Wildlife Refuge or National Park Service unit, for the purposes of section 7, we treat the population as proposed for listing and only sections 7(a)(1) (50 CFR 17.83) and 7(a)(4) (50 CFR 402.10) of the Act apply (50 CFR 17.83). In these instances, NEPs provide additional flexibility in managing the nonessential population because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(1) requires all Federal agencies to use their authorities to carry out programs for the conservation of listed species. Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. As a result, NEPs provide additional flexibility in managing the nonessential population.

Section 10(j)(2)(C)(ii) of the Act states that critical habitat shall not be designated for any experimental population that is determined to be nonessential. Accordingly, we cannot designate critical habitat in areas where we establish an NEP.

Before authorizing the release as an experimental population of any population (including eggs, propagules, or individuals) of an endangered or threatened species, and before authorizing any necessary transportation to conduct the release, the Service must find by regulation that such release will further the conservation of the species. In making such a finding the Service uses 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 Effects on Wild 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 NEP on Recovery Efforts, below);

(4) The extent to which the introduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area (see Likelihood of Population Establishment and Survival, 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, as set forth at 50 CFR 17.81(c), all regulations designating experimental populations under section 10(j) of the Act must 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 (see Experimental Population and Experimental Population Regulation Requirements, 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 for that population, which may include, but are not limited to, measures to isolate, remove, and/or contain the experimental population designated in the regulations 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 NEP, below).

Under 50 CFR 17.81(e), the Service must consult 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, section 10(j) rules represent an agreement between the Service, the affected State and Federal agencies, Tribal governments, local governments, and persons holding any interest in land or water that may be affected by the establishment of an experimental population.

We are designating this NEP at the request of CPW, to facilitate their planned reintroduction of gray wolves to the State per the requirements of Proposition 114 (now codified as Colorado Revised Statute 33-2-105.8), which directs the CPW Commission to take the steps necessary to reintroduce gray wolves to lands west of the Continental Divide by December 31, 2023.

The NEP area is the entire State of Colorado. This scale is appropriate, given that CPW has proposed a discrete release area (figure 2), and gray wolves have high dispersal ability (Jimenez et al. 2017, p. 582). Furthermore, gray wolves released on the west side of the Continental Divide may move to locations beyond the western portion of the State, including east of the Continental Divide. Within the statewide NEP designation, CPW proposes to release gray wolves obtained from the delisted NRM population (Idaho, Montana, eastern Oregon, eastern Washington, Wyoming) at multiple sites west of the Continental Divide. Individual release sites will be located on private or State lands with high habitat suitability and low wolf-livestock conflict risk based on models developed by Ditmer et al. (2022, entire). All release sites will be located west of the Continental Divide (Colorado Revised Statute 33-2-105.8) (figure 2). CPW proposes to release a total of 10 to 15 wolves at a 50:50 sex ratio each year during winter for 3 to 5 years (CPW 2023b, p. 20), although exact numbers and sex ratios may vary due to factors associated with capture from source populations (CPW 2023b, Appendix B, p. B-34). After initial releases are completed, CPW will monitor the success of reintroduction efforts and document wolf abundance and distribution annually to evaluate progress toward meeting State wolf recovery objectives (CPW 2023b, p. 22).

CPW officials plan to capture wild gray wolves in cooperating States in the Western United States where wolves are federally delisted (Montana, Idaho, Wyoming, the eastern third of Washington and Oregon, and north-central Utah) using a combination of net gunning, helicopter darting, or trapping. Wolf captures will be conducted in accordance with approved protocols specific to each jurisdiction from which donor wolves are to come. Animals will be a mix of sex and age classes, with a sex ratio of 50:50 preferred, and ideally donor animals will be unrelated and of dispersing age (2 years and older). Each wolf selected for transport will be photographed, examined to evaluate condition and to obtain biological measurements and samples, tested for diseases, vaccinated for a wide variety of diseases, and treated for internal and external parasites. Additionally, wolves will be fitted with either a global positioning system (GPS) or a very high frequency (VHF) radio transmitter as well as other markers to assist with individual identification. Captured animals will be transported to Colorado in large, aluminum crates (similar to those used for wolf reintroduction in the NRM) by aircraft, ground transportation, or a mix of techniques, with a goal of releasing captured animals as quickly as possible to minimize time in captivity and capture-related stress. All animals will be “hard released” (released shortly after transport to reintroduction sites with no preconditioning; CPW 2021b, pp. 19-21) during winter (November through March), with no acclimation time between capture, transport, and release. The Final Report on Wolf Restoration Logistics Recommendations developed by the Colorado Wolf Restoration and Management Plan Technical Working Group (CPW 2021b, entire) provides additional details regarding the proposed release procedures.

As noted in Reintroduction Areas and Release Sites and Release Procedures above, the CPW plans to “hard release” gray wolves on State or private lands within a discrete release area (figure 2, above). Given that gray wolves released in this manner are more likely to disperse immediately from the release site rather than remain together at the site (CPW 2021b, entire), CPW does not plan to implement any special management practices at individual release sites. For additional information, please see the State of Colorado's Final Report on Wolf Restoration Logistics Recommendations (CPW 2021b, entire).

Under 50 CFR 17.81(b), before authorizing the release as an experimental population, the Service 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. The preferred donor population for the reintroduction of gray wolves to Colorado is the delisted NRM population. Gray wolves in these States are managed by State fish and wildlife agencies and Tribes. These wolves are an appropriate source for the Colorado reintroduction because they share similarities in habitat and preferred prey; one of the wolves in Colorado dispersed from the NRM population; and the NRM population reached numerical, spatial, and temporal recovery goals by the end of 2002 (Service 2020, p. 15; see Recovery Efforts to Date, above). The NRM wolf population continues to demonstrate stable to slightly increasing demographic trends with an estimated 1,337 wolves in Idaho as of August 2022 and slightly more than 1,800 wolves in Montana, Oregon, Washington, and Wyoming at the end of 2022 (IDFG 2023, unpaginated; ODFW 2023, p. 2; Parks et al. 2023, pp. 9-11; WDFW et al. 2023, pp. 2-3; WGFD et al 2023, p. 3). Further, the NRM population is part of a larger metapopulation of wolves that encompasses all of Western Canada (Service 2020, p. 29). Given the demonstrated resilience and recovery trajectory of the NRM population and limited number of animals that will be captured for translocation, we expect negative impacts to the donor population to be negligible.

In our findings for designation of an NEP, we must consider if the reintroduced population will become established and survive in the foreseeable future. In this portion of the preamble, we address the likelihood that populations introduced into the NEP will become established and survive. In defining the experimental population boundary, we attempted to encompass the area where the population is likely to become established in the foreseeable future. The term “foreseeable future” appears in the Act in the statutory definition of “threatened species.” However, the Act does not define the term “foreseeable future.” Similarly, our implementing regulations governing the establishment of an NEP under section 10(j) of the Act use the term “foreseeable future” (50 CFR 17.81(b)(2)) but do not define the term. However, our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis.

The term foreseeable future extends only so far into the future as we can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. While we use the term “foreseeable future” here in a different context (to determine the likelihood of population establishment and to establish boundaries for identification of the experimental population), we apply a similar conceptual framework. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider 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. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

For the purposes of this rule, we define the foreseeable future for our evaluation of the likelihood of survival and establishment as approximately 13 years, which reflects 3 wolf generations of approximately 4-4.5 years per generation (vonHoldt et al. 2008, p. 257; Mech et al. 2016, pp. 1,6), and the time horizon within which we can reasonably forecast population expansion of gray wolves in Colorado given the results of previous reintroduction efforts of gray wolves in the NRM. This timeframe is also similar to the amount of time it took wolves to begin recolonizing areas outside of the core of the NRM (Idaho, Montana, and Wyoming) in Oregon and Washington (Service 2020, p. 28).

In evaluating the likelihood of establishment and survival of this NEP in the foreseeable future, we considered the extent to which causes of extirpation in the NEP area have been addressed, habitat suitability and prey availability within the NEP area, and existing scientific and technical expertise and experience with reintroduction efforts. As discussed below, we expect that gray wolves will become established during this time span, given the species' adaptability and dispersal ability.

Investigating the causes for the extirpation of gray wolves is necessary to understand whether we are sufficiently addressing threats to the species in the NEP so that reintroduction efforts are likely to be successful. The International Union for the Conservation of Nature's Guidelines for Reintroduction and Other Conservation Translocations (IUCN 2013, p. 4) identifies several criteria to consider prior to undertaking a reintroduction, including “strong evidence that the threat(s) that caused any previous extinction have been correctly identified and removed or sufficiently reduced.” Wolves depend on abundant prey (primarily ungulates) and can successfully colonize and occupy a wide range of habitats as long as human-caused mortality is adequately managed (Mech 2017, pp. 312-315). Historical wolf declines in Colorado resulted from purposeful efforts to eradicate the species by State and Federal authorities, primarily due to conflicts with domestic livestock production (Service 2020, pp. 9-14; see Habitat Use and Causes of Decline and Threats, above, for additional information). In 2004, CPW created a Wolf Management Working Group, largely in response to dispersal of wolves from the NRM population to Colorado and other western States. The working group developed a series of recommendations for wolf management in Colorado, including recognition of the ecological value of wolves and an intent to accept their presence in Colorado (Colorado Wolf Management Working Group 2004, p. 3). The recommendations of the Wolf Management Working Group were formally adopted by the Colorado Wildlife Commission in 2005 and were reaffirmed by the CPW Commission in 2016 (85 FR 69778 at 69837, November 3, 2020).

The State of Colorado currently classifies the gray wolf as an endangered species; this classification regulates take. The State of Colorado expanded its conservation efforts for gray wolves through the passage of Proposition 114 (now codified as Colorado Revised Statute 33-2-105.8), which directs the CPW Commission to take the steps necessary to reintroduce gray wolves to lands west of the Continental Divide by December 31, 2023. Colorado Revised Statute 33-2-105.8 calls for the development and implementation of a Colorado Wolf Restoration and Management Plan, which was finalized and approved by the CPW Commission in May 2023 (CPW 2023b, entire). The plan follows a phased approach whereby the conservation status of gray wolves is linked with numerical and temporal population targets (CPW 2023b, pp. 24-25). Although agency-directed lethal control may be used to mitigate conflicts with specific individual wolves and/or packs that repeatedly depredate livestock, purposeful eradication of wolves in Colorado is no longer a tool used for wolf management. Lethal control may consist of removing wolves that repeatedly depredate on livestock, whereas purposeful eradication likely involves removal of all wolves within the State. Based on the elimination of purposeful eradication, and the fact that gray wolves are protected under State and Federal laws, we do not anticipate the original cause of wolf extirpation from Colorado to be repeated.

Excluding occasional dispersing wolves and two known individual wolves presently in north-central Colorado, large blocks of gray wolf habitat in the central and southern Rocky Mountains are not currently occupied by gray wolves. Models developed to assess habitat suitability and the probability of wolf occupancy indicate that Colorado contains adequate habitat to support a population of gray wolves, although the number of wolves that the State could support varies among the models. One model estimated that the State could support between 407 and 814 wolves based on prey and habitat availability (Bennett 1994, pp. 112, 275-280).

Carroll et al. (2003, entire) examined multiple models to evaluate suitable wolf habitat, occupancy, and the probability of wolf persistence given various landscape changes and potential increases in human density in the southern Rocky Mountains, which includes portions of southeastern Wyoming, Colorado, and northern New Mexico. Using a resource selection function (RSF) model developed for wolves in the Greater Yellowstone Ecosystem and projecting it to Colorado, Carroll et al. (2003, pp. 541-542) identified potential wolf habitat across north-central and northwest Colorado and the southwestern part of the State. RSF model predictions indicate that Colorado could support an estimated 1,305 wolves with nearly 87 percent of wolves occupying public lands in the State. Carroll et al. (2003, entire) also used a dynamic model that incorporated population viability analysis to evaluate occupancy of gray wolves and persistence based on current conditions as well as potential changes resulting from increased road and human densities in the future. The dynamic model based on current conditions predicted similar distribution and wolf population estimates as the RSF model; however, as predicted, as road and human densities increased in Colorado, the availability of suitable habitat and the estimated number of wolves that habitat could support declined (Carroll et al. 2003, pp. 541-543).

An analysis similar to that of Carroll et al. (2003, entire) was conducted for the entirety of the Western United States and indicated that high-quality wolf habitat exists in Colorado and Utah, but that wolves recolonizing Colorado and Oregon would be most vulnerable to landscape changes because these areas lack, and are greater distances from, large core refugia (Carroll et al. 2006, pp. 33-36). The authors proposed that habitat improvements, primarily in the form of road removal or closures, could mitigate these effects (Carroll et al. 2006, p. 36). Switalski et al. (2002, pp. 12-13) and Carroll et al. (2003, p. 545) also cautioned that model predictions may be inaccurate because they did not account for the presence of livestock and the potential use of lethal removal to mitigate conflicts, which could affect the long-term persistence of wolves in some areas (Mech et al. 2019, entire).

Recognizing the limitations of wolf habitat suitability models that do not account for the presence of livestock, Ditmer et al. (2022, entire) used voting records for proposition 114 in Colorado to quantify and map an index of tolerance for wolves and combined it with spatially explicit data on livestock distributions and land ownership to predict wolf conflict risk in Colorado (Ditmer et al. 2022, p. 1). Conflict risk was juxtaposed with estimates of wolf ecological suitability developed using seasonal prey densities along with environmental and anthropogenic features that influence wolf habitat use (Ditmer et al. 2022, p. 1) to predict areas of high habitat suitability and increased conflict risk in summer and winter for gray wolves across Colorado. The models predicted over 58 million acres (23 million hectares) of potential suitable gray wolf habitat occurs on the western slope of Colorado. Approximately 56 percent of this total, or 32.5 million acres (13.2 million hectares) was considered suitable seasonal wolf habitat that contained high ecological suitability and low conflict risk (Ditmer et al. 2022, p. 11). However, approximately 14 percent, or 8.3 million acres (3.4 million hectares), the majority of which occurs in the northern part of the western slope of Colorado, were identified as being potential conflict hotspots where significant overlap between ecological suitability and conflict risk was predicted (Ditmer et al. 2022, pp. 9-11).

Wolves can successfully occupy a wide range of habitats provided adequate prey exists (Mech 2017, pp. 312-315). Wolves in the Western United States rely on habitats containing large prey such as mule deer, elk, and moose (Smith et al. 2010, entire). CPW manages wild ungulate populations, such as moose, elk, bighorn sheep, and mule deer, etc., using herd management plans, which establish population objective minimums and maximums for each ungulate herd in the State (CPW 2020, entire). The herd management plans consider both biological and social factors when setting herd objective ranges (CPW 2020, entire). Like other Western States, mule deer in Colorado have declined due to a multitude of factors since the 1970s to a statewide post-hunt population estimate of 416,430 animals in 2021, which was well below the target statewide population objective of 484,100. In 2021, of 54 mule deer herds in Colorado, 18 were below their population objective minimum with the western part of the State being the most affected. In contrast, elk populations in Colorado are stable with a 2021 post-hunt population estimate of 308,920 elk. Although 34 of 42 elk herds are within or above the population objective range, the ratio of calves per 100 cows (a measure of overall herd fitness) has been on the decline in some southwestern herd units (CPW 2020, p. 7).

Moose are not native to Colorado so, to create hunting and wildlife viewing opportunities, CPW transplanted moose to the State beginning in 1978. Since then, they transplanted moose on four other occasions through 2010. The 2021 post-hunt moose population was estimated at 3,510 animals and continues to increase as moose expand into new areas of Colorado. In summary, while deer and elk numbers are down from their peak populations in some parts of Colorado, they still number in the hundreds of thousands of individuals, and the State is actively managing populations to meet objectives (CPW 2020, entire). Introduced moose provide an additional potential food resource for wolves in some parts of the State. Therefore, wolf habitat and prey are suitable and abundant within the NEP area and would support population establishment and survival.

Conservation efforts to reintroduce gray wolves to the NRM began in 1995, with the reintroduction of wolves to portions of Idaho and Wyoming and the continued natural recolonization of wolves in northwestern Montana. Following their release, wolves rapidly increased in abundance and distribution in the region due to natural reproduction and the availability of high-quality, suitable wolf habitat in the NRM. Between 1995 and 2008, populations of gray wolves in the NRM increased an average of 24 percent annually, reaching 1,655 wolves by the end of 2008 (Service et al. 2016, table 6b), while total mortality averaged approximately 16 percent annually between 1999 and 2008 (Service et al. 2000-2009, entire). Wolf numbers and distribution in Idaho, Montana, and Wyoming stabilized after 2008 as suitable habitat became increasingly saturated (74 FR 15123 at 15160, April 2, 2009).

Between 2009 and 2015, when gray wolves were managed primarily under State authority due to delisting (73 FR 10514, February 27, 2008; 74 FR 15123, April 2, 2009; 76 FR 25590, May 5, 2011; 77 FR 55530, September 10, 2012), Idaho, Montana, and Wyoming began to manage wolves with the objective of reversing or stabilizing population growth while continuing to maintain populations well above Federal recovery targets for the NRM population. During this period, States began to use public harvest as a management tool to achieve State-specific management objectives. As a result, during those years when legal harvest occurred, total wolf mortality in the NRM increased to an average of 29 percent of the minimum known population (Service et al. 2010-2016, entire), while population growth declined to an average of approximately 1 percent annually (Service et al. 2010-2016, entire). Although this mortality rate was significantly higher than mortality rates during the previous decade, the NRM population demonstrated an ability to sustain itself, consistent with scientific information demonstrating that the species' reproductive and dispersal capacity can compensate for a range of mortality rates (Service 2020, pp. 8-9).

As of 2015, the final year of a combined NRM wolf count at the end of federally required post-delisting monitoring in Idaho and Montana, wolves in the NRM remained well above minimum recovery levels with a minimum known population of 1,704 wolves distributed across Idaho, Montana, and Wyoming. An additional 177 wolves were documented in the NRM portions of Oregon and Washington at the end of 2015. Wolves in the NRM continue to remain above minimum recovery levels, demonstrating availability of technical expertise to successfully reintroduce gray wolf populations. For more information regarding the success of reintroduction efforts in the NRM, please see Recovery Efforts to Date, above.

Based on the success of past gray wolf reintroduction efforts in the NRM where biological recovery was achieved within 7 years, the availability of suitable wolf habitat and adequate wild ungulate prey in the NEP (see Habitat suitability/prey availability, above), the demonstrated resiliency of gray wolves in the United States, and the development of a comprehensive Gray Wolf Restoration and Management Plan in Colorado, the best available scientific data indicate that the reintroduction of gray wolves into suitable habitat in Colorado supports the likely success of establishment and survival of the reintroduced population, and the experimental population has a high likelihood of becoming established within the foreseeable future.

We are designating an experimental population of gray wolf in Colorado to support CPW's planned effort to reintroduce gray wolves to the State of Colorado and to further the conservation of the currently listed 44-State entity. CPW developed a Gray Wolf Restoration and Management Plan for the reintroduction and management of gray wolves in the State, with the goal of restoring the species to Colorado in a phased approach to the point where it no longer needs protection under State statute (CPW 2023b, entire). This management plan focuses on the primary threat to gray wolf populations, which is human-caused mortality ( e.g., Fuller et al. 2003, entire; Mech 2017, pp. 311-312; Hill et al. 2022, entire).

As noted in Recovery Efforts to Date, above, populations of gray wolves in the 44-State listed entity number more than 4,300 individuals and occupy portions of California, Michigan, Minnesota, Oregon, Washington, and Wisconsin (CDFW 2022, unpaginated; Erb and Humpal 2022, unpaginated; WI DNR 2022, p. 4; ODFW 2023, p. 2; WDFW et al. 2023, pp. 2-3). Two gray wolves are currently known to be present in Colorado, and they do not currently meet our definition of a gray wolf population, which is two breeding pairs of gray wolves that each successfully raise at least two young to December 31 of their birth year for 2 consecutive years (Service 1994). As explained above in Recovery Efforts to Date, there is no recovery plan that addresses the entire currently listed entity. In the absence of a recovery plan, we evaluate how the experimental population will contribute to the conservation of the species by considering the conservation biology principles of redundancy, resiliency, and representation.

Reintroduction efforts in Colorado will provide additional redundancy and representation for the 44-State listed entity. Redundancy is the ability for the species to withstand catastrophic events, for which adaptation is unlikely, and is associated with the number and distribution of populations. Representation is the ability of a species to adapt to changes in the environment and is associated with its ecological, genetic, behavioral, and morphological diversity. Once established, the reintroduction in the NEP will improve redundancy by increasing the number of populations at the southern extent of the currently occupied range and representation by increasing the ecological diversity of the habitats occupied by the listed entity. For these reasons, reintroduction efforts undertaken by CPW will increase the redundancy and representation, and hence viability, of the currently listed 44-State entity ( e.g., Smith et al. 2018).

Previous NEP designations have conserved and recovered gray wolves in other regions of the United States, particularly in the NRM. Additional management flexibility, relative to the mandatory prohibitions covering nonessential experimental species under the Act, is expected to help address local, State, and Tribal concerns about wolf-related conflicts in Colorado, similar to those experienced in other NRM States. Addressing these concerns proactively may result in greater human acceptance of gray wolves and other species of concern. Based on past modeling efforts, it has been estimated that Colorado could biologically support approximately 400 to 1,200 wolves (Bennett 1994, pp. 112, 275-280; Carroll et al. 2006, p. 33), but due to social constraints that could limit the distribution of wolves in the State (Ditmer et al. 2022, p. 12), the total number of wolves that Colorado could support may be slightly lower. Nonetheless, this action will contribute to the conservation of the listed entity by increasing redundancy and representation.

A large proportion of Colorado is composed of publicly owned Federal lands (approximately 36 percent; Congressional Research Service 2020). Public lands include National Forests, National Parks, National Monuments, and National Wildlife Refuges, which comprise approximately 63 percent of all public lands in Colorado. In addition, the Bureau of Land Management manages approximately 35 percent of public land in Colorado, much of which is located in the western portion of the State where reintroduction efforts for gray wolves will take place (figure 2, above). Although much of this public land is largely unavailable and/or unsuitable for intensive development and contains an abundance of wild ungulates, livestock grazing does occur on public lands in Colorado, which may increase the potential for mortality of gray wolves from lethal control of chronically depredating packs. However, in both Minnesota and the northern Rocky Mountains, lethal control of depredating wolves has had little effect on wolf distribution and abundance (Service 2020, p. 22; 85 FR 69778 at 69842, November 3, 2020).

Humans sparsely inhabit most of the NEP area containing suitable habitat for gray wolves. However, the NEP area contains human infrastructure and activities that pose some risk to success of the NEP. Risks include wolves killed as a result of mistaken identity, accidental capture during animal damage control activities, and high-speed vehicular traffic. Human-caused mortality includes both controllable and uncontrollable sources of mortality. Controllable sources of mortality are discretionary, can be limited by the managing agency, and include permitted take, recreational harvest, and direct agency control. Sources of mortality that will be difficult to limit, or may be uncontrollable, occur regardless of population size and include things such as natural mortalities, illegal take, and accidental deaths ( e.g., vehicle collisions, capture-related mortalities) (85 FR 69778, November 3, 2020). Although the effects of uncontrollable sources of mortality may be greatest for wolf populations that are small in size, which is most likely to occur during the early phases of recovery in Colorado, based on experiences with wolf recovery in the NRM (where uncontrollable sources of mortality were also present) and the availability of suitable habitat in Colorado, we expect that these sources of mortality will have minimal effect on gray wolf population growth and persistence in the State. If population levels and controllable sources of mortality are adequately regulated, the life-history characteristics of wolf populations provide natural resiliency to relatively high levels of human-caused mortality (85 FR 69778, November 3, 2020).

In conjunction with previous reintroduction efforts, implementation of this final rule reflects continuing success in recovering gray wolves through longstanding cooperative and complementary programs by several Federal, State, and Tribal agencies. In particular, the stakeholder engagement process developed by CPW in support of its Gray Wolf Restoration and Management Plan (CPW 2023b, entire) development is broadly based and includes a diverse array of stakeholders in the State, which has helped to address potential adverse effects to gray wolves through Federal, State, or private actions. Therefore, Federal, State, or private actions and activities in Colorado that are ongoing and expected to continue are not likely to have significant adverse effects on gray wolves within the NEP area.

Our regulations at 50 CFR 17.81(c) include a list of what we should provide in regulations designating experimental populations under section 10(j) of the Act. 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 Colorado NEP area encompasses the entire State. As discussed below, we conclude that after initial releases, any gray wolves found in Colorado will, with a high degree of likelihood, have originated from and be members of the NEP. However, we recognize that absent identifying tags or collars, it may be very difficult for members of the public to easily determine the origin of any individual gray wolf. Therefore, we will use geographic location to identify members of the NEP. As such, any gray wolf within the State of Colorado will be considered part of the NEP regardless of its origin. Similarly, any wolf outside of the State will take on the status of that location. For example, a wolf moving from Wyoming into Colorado will take on the NEP status, whereas a wolf moving from Colorado into Wyoming will take on a not-listed status, or endangered status if it moves into any other adjacent State.

By the end of 2022, a minimum count of two wolves were known to occupy Colorado and do not constitute a population (see Historical and Current Range, above). While an adult female wolf dispersed from Wyoming to Colorado in 2019 to form half of the first reproductively active pack in the State in recent history, the origins of her mate are unknown. It is likely the male dispersed from the Greater Yellowstone area (approximately 480 km (300 miles) north and west of their current location), but his exact origin is uncertain (CPW 2021a, entire). The mean dispersal distance of male wolves in the NRM is 98.1 km (60 miles) (Jimenez et al. 2017, p. 585). The nearest known pack in Wyoming is more than 200 km (124 miles) from the Colorado border, which is more than two times the average dispersal distance for gray wolves. In addition, Wyoming manages gray wolves in northwestern Wyoming via a trophy management area, which restricts the number of gray wolves that can be harvested in that area. The southern extent of the trophy management area generally coincides with the southern extent of the gray wolf current range in the NRM (figure 1, above). Outside of the trophy management area, wolves are managed as predators and can be harvested at any time without a license and with no harvest limit. Gray wolf packs are unlikely to persist long term in portions of Wyoming where they are designated as predatory animals (85 FR 69778, November 3, 2020), which further limits the ability for individuals to enter Colorado from Wyoming.

Despite these challenges, it is possible that gray wolves dispersing from the NRM population could successfully enter the NEP. However, these movements would likely be infrequent given the NEP's distance from existing populations, and the normal dispersal distances for gray wolves. Additionally, the small numbers of individuals likely to occupy the NEP following the release and the sizable distances between populations makes any potential interaction between individuals or a merging of populations highly unlikely. Further, even if gray wolves from the NRM or other populations were to disperse into the NEP, the presence of one or a few individual dispersing gray wolves would not constitute a population, as described above. Therefore, gray wolves reintroduced into Colorado will be wholly geographically separate from the delisted portion of the NRM population as well as the remainder of the currently listed 44-State entity. Based on this geographic separation, we conclude that any gray wolves found in Colorado after the initial release will, with a high degree of likelihood, be members of the NEP; therefore, we conclude that geographic location is an appropriate means to identify members of the NEP.

As noted in Release Procedures, above, CPW plans to fit individual animals reintroduced to the Colorado NEP with GPS collars or a mix of GPS and VHF collars, with GPS preferred in the early stages of the reintroduction effort. Reintroduced wolves fitted with radio telemetry collars and other identifiable marks prior to release will enable CPW to determine if animals within Colorado are members of the reintroduced NEP and not extant wolves from other populations ( e.g., the delisted NRM population). However, as reintroduced wolves begin to reproduce and disperse from Colorado packs, wolf abundance and distribution will increase in Colorado and the ability to capture and mark a high proportion of the population will decline. Given the challenges associated with marking a high number of wolves as the population increases and the distance from known packs in Wyoming and other populations of gray wolves, we will consider all gray wolves found in the State of Colorado to be members of the NEP.

When we establish experimental populations under section 10(j) of the Act, we must determine whether or not that population is essential to the continued existence of the species. This determination is based solely on the best scientific and commercial data available. Our regulations (50 CFR 17.80(b)) 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. We are designating the population of gray wolves in Colorado as nonessential for the following reason.

Populations of gray wolves within the 44-state listed entity include the Great Lakes metapopulation and growing populations in California, Oregon, and Washington. Multiple large, growing, or stable metapopulations of gray wolves inhabiting separate and ecologically diverse areas ensure that the survival of the listed species does not rely on any single population. Therefore, the loss of the Colorado NEP would not be likely to appreciably reduce the likelihood of survival of the species in the wild, and we find that the Colorado NEP is not essential to the continued existence of the species.

We have included management measures to address potential conflicts between wolves and humans and wolves and livestock. Management of the nonessential experimental population would allow gray wolves in the NEP to be hazed, killed, or relocated by the Service or our designated agent(s) for livestock depredations. Under special conditions, the public may harass or kill wolves in the act of attacking livestock (defined below). We have also included an exception to allow nonlethal and lethal management of gray wolves that are having an unacceptable impact to ungulate herds or populations on Tribal lands (defined below). This exception requires a science-based proposal that must, at a minimum, include the following information: (1) the basis of ungulate population or herd management objectives; (2) data indicating that the ungulate herd is below management objectives; (3) what data indicate that wolves are a major cause of the ungulate population decline; (4) why wolf removal is a warranted solution to help restore the ungulate herd to management objectives; (5) the level and duration of wolf removal being proposed; (6) how ungulate population response to wolf removal will be measured and control actions adjusted for effectiveness; and (7) demonstration that attempts were and are being made to address other identified major causes of ungulate herd or population declines or of Tribal government commitment to implement possible remedies or conservation measures in addition to wolf removal.

The proposal must be subjected to both public and peer review prior to it being finalized and submitted to the Service for review. At least three independent peer reviewers with relevant expertise in the subject matter that are not staff of the Tribe submitting the proposal must be used to review the proposal. Upon Service review, and before wolf removals can be authorized, the Service will evaluate the information provided by the requesting Tribe and provide a written determination to the requesting Tribal game and fish agency on whether such actions are scientifically based and warranted.

As the lead agency for reintroduction efforts for gray wolves in Colorado, CPW will coordinate with the Service on releases, monitoring, and other tasks as needed to ensure successful reintroduction of the species to the State. Definitions pertaining to special management provisions are listed below:

Depredating wolves —Gray wolves that have been confirmed by the Service or our designated agent as having depredated on livestock at least once within the last 30 days, and are routinely present and present a significant risk to the health and safety of livestock.

Designated agent —An employee of a Federal, State, or Tribal agency that is authorized or directed by the Service to conduct gray wolf management consistent with this rule.

The State of Colorado and Tribes within the State with wolf management plans also may become designated agents by submitting a request to the Service to establish a memorandum of agreement (MOA) under this rule. Once accepted by the Service, the MOA may allow the State of Colorado or Tribes within the State to assume lead authority for wolf conservation and management within their respective jurisdictions and to implement the portion of their State or Tribal wolf management plans that does not exceed the exceptions provided in this rule. The Service oversight (aside from Service law enforcement investigations) under an MOA is limited to monitoring compliance with this rule, issuing written authorizations for wolf take on reservations without wolf management plans, and an annual review of the State or Tribal program to ensure consistency with this rule. Under either a cooperative agreement or an MOA, no management outside the provisions of this rule is allowed unless we solicit additional public comment, and this rule is modified accordingly.

Incidental take— Experimental population rules contain specific prohibitions and exceptions regarding the taking of individual animals under the Act. These rules are compatible with most routine human activities in the NEP area ( e.g., resource monitoring, invasive species management, and research; see How Will the NEP Further the Conservation of the Species? above). Section 3(19) of the Act defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” “Incidental take” is further defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. See table 1 below for additional details on incidental take of gray wolves within the NEP area.

Intentional harassment —The deliberate and pre-planned harassment of wolves, including by less-than-lethal munitions that are designed to cause physical discomfort and temporary physical injury but not death. The term does not apply if there is evidence of unusual attractants or artificial or intentional feeding.

Interagency consultation —For purposes of section 7(a)(2) of the Act, section 10(j) of the Act and our regulations (at 50 CFR 17.83) provide that nonessential experimental populations are treated as species proposed for listing under the Act except on National Park Service and National Wildlife Refuge System lands, where they are treated as threatened species for the purposes of section 7(a)(2) of the Act. Where actions may affect gray wolves within units of the National Wildlife Refuge system or National Park Service in Colorado the Service will coordinate with the National Park Service and National Wildlife Refuge system to address their section 7(a)(2) obligations.

In the act of attacking —The actual biting, wounding, grasping, or killing of livestock or working dogs, or chasing, molesting, or harassing by wolves that would indicate to a reasonable person that such biting, wounding, grasping, or killing of livestock or dogs is likely to occur at any moment. This definition does not apply if there is evidence of unusual attractants or artificial or intentional feeding.

Landowner —An owner or lessee of private land, or their immediate family members, or the owner's employees, contractors, or volunteers who are currently employed to actively work on that private land. In addition, the owners (or their employees or contractors) of livestock that are currently and legally grazed on that private land and other leaseholders on that private land (such as outfitters or guides who lease hunting rights from private landowners), are considered landowners on that private land for the purposes of this regulation. Private land, under this rule, also includes all non-Federal land and land within Tribal reservations. Individuals legally using Tribal lands are considered landowners for the purposes of this rule.

Livestock —Cattle, sheep, pigs, horses, mules, goats, domestic bison, and herding and guarding animals (alpacas, llamas, donkeys, and certain breeds of dogs commonly used for herding or guarding livestock). Livestock excludes dogs that are not being used for livestock guarding or herding.

Livestock producer —A person who is actively engaged in farming/ranching and receives income from the production of livestock.

Non-injurious —Does not cause either temporary or permanent physical damage or death.

Opportunistic harassment —Harassment without the conduct of prior purposeful actions to attract, track, wait for, or search out the wolf. Opportunistic harassment includes scaring wolves with noise ( e.g., yelling or shooting firearms into the air), movement ( e.g., running or driving toward the wolf), or objects ( e.g., throwing a rock at a wolf or releasing bear pepper spray).

Private land —All land other than that under Federal Government ownership and administration and including Tribal reservations.

Public land —Federal land such as that administered by the National Park Service, U.S. Fish and Wildlife Service, Bureau of Land Management, USDA Forest Service, Bureau of Reclamation, Department of Defense, or other agencies with the Federal Government.

Public land permittee —A person or that person's employee who has an active, valid Federal land-use permit to use specific Federal lands to graze livestock or operate as an outfitter or guiding business that uses livestock. This definition does not include private individuals or organizations who have Federal permits for other activities on public land such as collecting firewood, mushrooms, antlers, or Christmas trees, or logging, mining, oil or gas development, or other uses that do not require livestock. In recognition of the special and unique authorities of Tribes and their relationship with the U.S. Government, for the purposes of this rule, the definition includes Tribal members who legally graze their livestock on ceded public lands under recognized Tribal treaty rights.

Relocation —Capture and movement to another location within the NEP.

Remove —Place in captivity or kill.

Research —Scientific studies resulting in data that will lend to enhancement of the survival of gray wolves.

Rule— “This rule” in the regulatory text refers to the NEP regulations.

Tribal land —any lands where title is either held in trust by the United States for the benefit of an Indian Tribe or individual Indian or held by an Indian Tribe or individual Indian subject to restrictions by the United States against alienation ( i.e., sale or transfer).

Unacceptable impact —Tribally determined decline in a wild ungulate population or herd, where wolf predation is a major cause of the population or herd not meeting established Tribal management goals on Tribal land. The Tribal determination must be peer-reviewed and reviewed and commented on by the public prior to a final, written determination by the Service that an unacceptable impact has occurred and that wolf removal will benefit the affected ungulate herd or population.

Working dogs —Guard or herding dogs used in livestock production.

Wounded —Exhibiting scraped or torn hide or flesh, bleeding, or other evidence of physical damage caused by a wolf or wolves.

CPW plans to use ground and aerial monitoring techniques to document wolf reproductive success, abundance, and distribution in Colorado post-release. This information will be summarized in an annual report by CPW that describes wolf conservation and management activities that occurred in Colorado each calendar or biological year to evaluate progress toward achieving the State of Colorado's downlisting and recovery criteria. A copy of the report will be submitted annually to the Service by June 30th and posted on CPW's website. The annual report may include, but not be limited to, post-release wolf movements and behavior; wolf minimum counts or abundance estimates; reproductive success and recruitment; territory use and distribution; cause-specific wolf mortalities; and a summary of wolf conflicts and associated management activities to minimize wolf conflict risk. For additional details, please see CPW 2021b (entire) and Release Procedures, above.

The Service will evaluate Colorado's wolf reintroduction and management program in an annual summary report. Additionally, 5 years after the last reintroductions are completed, the Service will evaluate whether the wolf population is meeting the State's recovery goals and conservation of the species. During this evaluation, we will assess the reintroduction program and coordinate with CPW if it is determined that modifications to reintroduction protocols are necessary. We believe that 5 years after the reintroductions is a reasonable timeline for this evaluation because that timeline would allow for evaluation of the success of the management program and of wolf population growth and abundance in order to assess progress toward achieving the State of Colorado's recovery goals. If modifications to wolf monitoring and management activities are needed, the Service will coordinate closely with CPW to ensure progress toward achieving recovery goals while concurrently minimizing wolf-related conflicts in Colorado.

Above, we considered potential effects of the release on wild populations of the delisted NRM potential donor populations. We also considered potential effects of the release on the Mexican wolf. The number of gray wolves in Colorado could continue to grow and expand, which could increase the likelihood that gray wolves in Colorado disperse far enough south to encounter Mexican wolves. The timing and extent of any potential future contact are uncertain and difficult to project, but if contact were to occur, interbreeding is a concern for the Mexican wolf. If gray wolves come to occupy Mexican wolf recovery areas, these physically larger wolves are likely to dominate smaller Mexican wolves and quickly occupy breeding positions, as will their hybrid offspring. Hybrid population(s) thus derived will not contribute towards recovery of Mexican wolves because they will significantly threaten integrity of the listed entity (Odell et al. 2018, entire). However, potential inbreeding would be unlikely to have significant effects on the gray wolf, given the narrow geographic range in which such contact would likely occur relative to the species' overall range. Additionally, we do not intend to initiate or allow adaptive introgression between gray wolves and Mexican wolves as part of the genetic management of Mexican wolves (87 FR 39357, July 1, 2022). To help minimize interactions and protect Mexican wolf genetic integrity, we have simultaneously issued a section 10(a)(1)(A) permit to be held by the Service, which would authorize our designated agents to assist in the capture and return of wolves originating from the Colorado NEP.

Based on the best scientific and commercial data available (in accordance with 50 CFR 17.81), we find that releasing gray wolves into the State of Colorado with the regulatory provisions in this rulemaking will further the conservation of the species in the currently listed 44-State entity. The NEP status is appropriate for the introduced population; the potential loss of the experimental population would not appreciably reduce the likelihood of the survival of the species in the 44-State listed entity since more than 4,600 wolves are distributed across at least 6 different States in the Western United States and the western Great Lakes.

Executive Order (E.O.) 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 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, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

This rule is modeled after previous NEP designations in Idaho, Montana, and Wyoming that contributed to the recovery of gray wolves while allowing for the control and management of wolves that caused conflicts and economic impacts on livestock producers. The majority of gray wolves in the Western United States are part of the NRM population, which is no longer protected under the Act. Despite increased incidences of human-caused mortality in the NRM population after delisting, this population is stable to increasing.(Service 2020, pp. 14-19; 85 FR 69778, November 3, 2020).

The State of Colorado has recognized the utility of NEP designations in reintroducing gray wolves while addressing the concerns of local, State, and Tribal governments, as well as private entities, and engaged in an extensive stakeholder outreach process to develop a State management plan with broad-based support (CPW 2022). This process, which involved a Stakeholder Advisory Group comprising a diverse array of stakeholders such as agricultural producers, hunting guides, wolf conservation advocates, and other interests and a Technical Working Group comprising gray wolf experts, assisted in the formulation of an impact-based management matrix and the overall Colorado Gray Wolf Management and Restoration Plan.

The reduced restrictions on taking depredating wolves (see definition above under Management Restrictions, Protective Measures, and Other Special Management ) in this rule, relative to endangered species that receive the full protections of sections 7 and 9 of the Act, will make the management of wolves easier and more effective, thus reducing the economic losses that result from depredation of wolves on livestock and guard animals and working dogs. Furthermore, a State program to compensate livestock producers who experience livestock losses caused by wolves is being developed and will be implemented upon CPW Commission approval. As a point of reference, compensation for livestock losses in Montana in 2021 totaled $103,815.95 (Parks et al. 2022, p. 19), and compensation in Wyoming for 2022 totaled $187,382.00 (WGFD et al. 2023, pp. 24). The potential effect on livestock producers in western States is very small, but more flexible wolf management will provide benefits to stakeholders and livestock producers by providing options to protect assets.

During the development of this final rule, we reviewed and evaluated all information submitted during the comment period on the proposed rule (88 FR 10258, February 17, 2023) that may pertain to our consideration of the probably incremental economic impacts of this NEP designation. Based on this information, we affirm our certification that this NEP designation under section 10(j) of the Act will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare statements of energy effects “to the extent permitted by law” when undertaking actions identified as significant energy actions (66 FR 28355, May 22, 2001). E.O. 13211 defines a “significant energy action” as an action that (i) is a significant regulatory action under E.O. 12866 (or any successor order, including most recently E.O. 14094 (88 FR 21879, April 11, 2023)); and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule is not a significant regulatory action under E.O. 12866 or 14094. Therefore, this action is not a significant energy action, and there is no requirement to prepare a statement of energy effects for this action.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we make the following finding:

(1) This rule will not produce a Federal mandate of $100 million or greater in any year ( i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act). This NEP designation for gray wolves in Colorado would not impose any additional management or protection requirements on the States or other entities. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7).

“Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

(2) We do not believe that this rule will significantly or uniquely affect small governments because it would not impose a cost of $100 million or more in any given year on local or State governments or private entities and it would not place additional requirements on any city, county, or other local municipalities. Therefore, a small government agency plan is not required.

In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have determined that this rule will not have significant implications concerning taking of private property by the Federal Government. This rule will substantially advance a legitimate government interest (conservation of a listed species) and will not present a bar to all reasonable and expected beneficial use of private property. Additionally, because of the regulatory flexibility provided by NEP designations under section 10(j) of the Act, the increased flexibility provided by this rule for State or Tribal-led gray wolf management will reduce regulatory restrictions on private lands and will result in minor positive economic effects for a small percentage of livestock producers. Therefore, we conclude that this rulemaking for the gray wolf does not pose significant taking implications.

In accordance with Executive Order 13132, this rule does not have significant federalism effects. This rule will not have substantial direct effects on the States, on the relationship between the States and the Federal Government, or on the distribution of power and responsibilities among the various levels of government. CPW requested that we undertake this rulemaking to support the conservation of wolves in the 44-State entity and in Colorado and to provide increased take authority to resolve gray wolf conflicts, which will assist with conservation of the species. No intrusion on State policy or administration is expected; roles or responsibilities of Federal or State governments will not change; and fiscal capacity will not be substantially affected. This rule operates to maintain the existing relationship between the States and the Federal Government and is being undertaken at the request of CPW. We cooperated with CPW and other State agencies in the preparation of this rule. Therefore, this rule does not have significant federalism effects or implications to warrant the preparation of a federalism assessment pursuant to the provisions of Executive Order 13132.

In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule would not unduly burden the judicial system and would meet the requirements of sections (3)(a) and (3)(b)(2) of the Order. We are designating the NEP in accordance with the provisions of the Act. To assist the public in understanding the NEP, this rule presents the areas of the NEP on a map and the rule provides several options for the interested public to obtain more detailed location information, if desired.

This rule contains existing and new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB previously reviewed the new information collection requirements contained in this rulemaking related to the establishment of an NEP of the gray wolf ( Canis lupus ) in the State of Colorado, under section 10(j) of the ESA and assigned OMB Control Number 1018-0189. OMB has previously approved the information collection requirements associated with permitting requirements associated with native endangered and threatened species, and experimental populations, and assigned OMB Control Number 1018-0094, “Federal Fish and Wildlife Permit Applications and Reports—Native Endangered and Threatened Species; 50 CFR parts 10, 13, and 17” (expires January 31, 2024).

Experimental populations established under section 10(j) of the Act, as amended, require information collection and reporting to the Service. We will collect information on the gray wolf NEP to help further the recovery of the species and to assess the success of the reintroduced populations. There are no forms associated with this information collection. The respondents notify us when an incident occurs, so there is no set frequency for collecting the information. Other Federal agencies provide us with the vast majority of the information on experimental populations under cooperative agreements for the conduct of the recovery programs. However, the public also provides some information to us. The new information collection requirements identified below require approval by OMB:

1. Appointment of designated agent —A designated agent is an employee of a Federal, State, or Tribal agency that is authorized or directed by the Service to conduct gray wolf management. A prospective designated agent submits a letter to the Service requesting designated agent status. The letter includes a proposal for the work to be completed, a list of individuals that may perform the work, and a resume (or similar) demonstrating qualifications of each individual to competently perform the work. The Service will then respond to the requester with a letter authorizing them to complete the work.

2. Request for written take authorization —After receiving confirmation of wolf activity on private land or on a public land grazing allotment, we or the designated agent may issue written take authorization valid for not longer than 1 year, with appropriate conditions, to any landowner or public land permittee to intentionally harass wolves. The harassment must occur in the area and under the conditions as specifically identified in the written take authorization.

3. Request for “depredation” written take authorization —The Service or designated agent may issue a “depredation” written take authorization of limited duration (45 days or fewer) to a landowner or their employees, or to a public land grazing permittee, to take up to a specified (by the Service or our designated agent) number of wolves.

4. Reporting requirements —Except as otherwise specified in this rule or in an authorization, any take of a gray wolf must be reported to the Service, or our designated agent as follows (additional reasonable time will be allowed if access to the site is limited):

a. Lethal take must be reported within 24 hours. We will allow additional reasonable time if access to the site is limited.

b. Opportunistic or intentional harassment must be reported within 7 days.

c. Gray wolves taken into captivity for care or to be euthanized must be reported to the Service within 24 hours, or as soon as reasonably appropriate.

5. Annual report —To evaluate progress toward achieving State downlisting and delisting criteria, CPW will summarize monitoring information in an annual report. The report, due by June 30 of each year, will describe wolf conservation and management activities that occurred in Colorado for as long as the gray wolf is federally listed during any portion of a calendar or biological year. The annual report will include, but not be limited to:

• post-release wolf movements and behavior;

• wolf minimum counts or abundance estimates;

• reproductive success and recruitment;

• territory use and distribution;

• cause-specific wolf mortalities; and

• a summary of wolf conflicts and associated management activities to minimize wolf conflict risk.

6. Recovery or reporting of dead individuals and specimen collection from experimental populations —This type of information is for the purpose of documenting incidental or authorized scientific collection. Specimens are to be retained or disposed of only in accordance with directions from the Service. Most of the contacts with the public deal primarily with the reporting of sightings of experimental population animals, or the inadvertent discovery of an injured or dead individual.

7. Proposal—Take of Gray Wolves on Tribal Lands (NEW in Final Rule) —The exception to allow take of gray wolves that are contributing to unacceptable impacts to wild ungulate population or herds on Tribal land requires Tribes to develop a science-based proposal that must, at a minimum, include the following information:

• The basis of ungulate population or herd management objectives;

• Data indicating that the ungulate herd is below management objectives;

• Data indicating that wolves are a major cause of the ungulate population decline;

• Why wolf removal is a warranted solution to help restore the ungulate herd to management objectives;

• The level and duration of wolf removal being proposed;

• How ungulate population response to wolf removal will be measured and control actions adjusted for effectiveness; and

• Demonstration that attempts were and are being made to address other identified major causes of ungulate herd or population declines or of Tribal government commitment to implement possible remedies or conservation measures in addition to wolf removal. The proposal must be subjected to both public and peer review prior to it being finalized and submitted to the Service for review. At least three independent peer reviewers with relevant expertise in the subject matter that are not staff of the Tribe submitting the proposal must be used to review the proposal. Upon Service review, and before wolf removals can be authorized, the Service will evaluate the information provided by the requesting Tribe and provide a written determination to the requesting Tribal game and fish agency on whether such actions are scientifically based and warranted.

We will use the information described above to assess the effectiveness of control activities and develop means to reduce problems with livestock where depredation is a problem. Service recovery specialists use the information to determine the success of reintroductions in relation to established recovery plan goals for the threatened and endangered species involved.

Title of Collection: Endangered and Threatened Wildlife, Experimental Populations—Colorado Gray Wolf (50 CFR 17.84).

OMB Control Number: 1018-0189.

Form Numbers: None.

Type of Review: New.

Respondents/Affected Public: Individuals; private sector; and State/local/Tribal governments.

Respondent's Obligation: Required to obtain or retain a benefit.

Frequency of Collection: Annually for annual report and on occasion for other requirements.

Total Estimated Annual Non-Hour Burden Cost: None.

As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response.

We will accept and consider all public comments concerning the information collection requirements received in response to this final rule. Send your written comments and suggestions on this information collection to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls Church, VA 22041-3803 (mail); or Info_Coll@fws.gov (email). Please reference “OMB Control Number 1018-BG79” in the subject line of your comments.

We have prepared a final environmental impact statement (FEIS) pursuant to the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq. ) in connection with this rule to designate the Colorado nonessential experimental population of gray wolves. The purpose of the FEIS is to identify and disclose the environmental consequences resulting from the designation of the gray wolf in Colorado. The FEIS is an outgrowth of the public scoping process we conducted from July 21, 2022, to August 22, 2022, and the public and peer review comments we received on the draft environmental impact statement (DEIS) (see 88 FR 10318, February 17, 2023), and our February 17, 2023, proposed rule (88 FR 10258). We used the FEIS, which we announced in the Federal Register on September 19, 2023 (88 FR 64399), to inform our final decision for this rulemaking.

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes on a government-to-government basis. We have considered possible effects of this rule on federally recognized Indian Tribes. In accordance with Secretaries' Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. In July 2022, we sent notification letters to the Native American Tribes within and adjacent to the NEP about this rule, and to determine their interest in participating in Tribal consultation under Secretaries' Order 3206 for this action. We invited the Ute Mountain Ute and the Southern Ute Indian Tribes to serve as cooperating agencies in the development of the environmental impact statement. In October 2022, we provided an informational webinar to the interested Tribes and in January 2023, we participated in government-to-government consultation with the Southern Ute Indian Tribe. In February 2023, we participated in an informational meeting with the Ute Mountain Ute Indian Tribe. If future activities resulting from this rule may affect Tribal resources, the Service will communicate and consult on a government-to-government basis with any affected Native American Tribes in order to find a mutually agreeable solution.

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

The primary authors of this rule are the staff members of the Colorado Ecological Services Field Office.

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

Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ) and the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq. ). The 2006 Consolidated Atlantic HMS Fishery Management Plan (2006 Consolidated HMS FMP) and its amendments are implemented by regulations at 50 CFR part 635. The shark commercial retention limits, quotas, and closure requirements can be found in §§ 635.24(a), 635.27(b), and 635.28(b), respectively.

For the Atlantic shark commercial fisheries, the 2006 Consolidated HMS FMP and its amendments established default commercial shark retention limits, commercial quotas for species and management groups, and adjustment procedures for underharvests and overharvests. Regulations also include provisions allowing flexible opening dates for the fishing year (§ 635.27(b)(3)) and inseason adjustments to shark trip limits (§ 635.24(a)(8)), which provide management flexibility in furtherance of equitable fishing opportunities, to the extent practicable, for commercial shark fishermen in all regions and areas. In addition, § 635.28(b)(4) lists species and management groups with quotas that are linked. If quotas are linked, when the specified quota threshold for one management group or species is reached and that management group or species is closed, the linked management group or species closes at the same time (§ 635.28(b)(3)). Lastly, pursuant to § 635.27(b)(2), any annual or inseason adjustments to the base annual commercial overall, regional, or sub-regional quotas will be published in the Federal Register .

Background information about the need to adjust the quotas and retention limits and establish the opening date for the 2024 and future fishing years for the Atlantic commercial shark fisheries was provided in the proposed rule (88 FR 50822, August 2, 2023) and is not repeated here. The comment period for the proposed rule closed on September 1, 2023. NMFS received two written comments. Summaries of the comments received, and our responses to those comments, are in the Response to Comments section. Similar comments are combined, where appropriate. After reviewing and considering all the public comments received on the proposed rule, NMFS is finalizing the rule as proposed.

After considering the “Opening Commercial Fishing Season Criteria” listed at § 635.27(b)(3), and “Inseason Trip Limit Adjustment Criteria” listed at § 635.24(a)(8), NMFS is opening the 2024 Atlantic commercial shark fishing season for all shark management groups in the northwestern Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea, on January 1, 2024. NMFS is also starting the 2024 commercial shark fishing season with the commercial retention limit of 55 LCS other than sandbar sharks per vessel per trip in both the eastern and western Gulf of Mexico sub-regions as well as in the Atlantic region (Table 1). As needed, NMFS may adjust the retention limit throughout the year to ensure equitable fishing opportunities throughout the region and ensure the quota is not exceeded (see the criteria at § 635.24(a)(8)).

Additionally, NMFS revises the regulations for both the start date for all Atlantic shark fisheries and the default retention limit for Shark Directed permit holders in the LCS fisheries. Specifically regarding the start date, NMFS revises the regulations at § 635.27(b) to have the fishery automatically open on January 1 each year under base quotas and default retention limits. NMFS maintains the flexibility to prevent a regional or sub-regional shark management group from automatically opening on January 1 if the respective quota is overharvested or there are indications that opening on January 1 would result in the quota being overharvested. A change in opening date for a regional or sub-regional shark management group could occur during the respective fishing year or prior to January 1 for the following fishing year. Before changing the opening date from January 1, NMFS would consider the seven “Opening Commercial Fishing Season Criteria” listed at § 635.27(b)(3). Each year, during the fishing year, NMFS would follow the quota adjustment process specified in § 635.27(b)(2) and publish in the Federal Register an adjustment for any quota over- or underharvests based on landings reported from the previous fishing year.

Regarding the default retention limit, NMFS revises the regulations at § 635.24(a) to change the default commercial retention limit to 55 LCS other than sandbar sharks per vessel per trip for Shark Directed limited access permit holders. NMFS does not change the existing regulations that allow for changes to the retention limit during the fishing year. Specifically, NMFS could continue to adjust the retention limit from 0 to 55 LCS other than sandbar sharks per vessel per trip if the respective LCS management group is open under §§ 635.27 and 635.28, and after considering the seven “Inseason Trip Limit Adjustment” criteria at § 635.24(a)(8).

Consistent with existing regulations, all of the regional or sub-regional commercial fisheries for shark management groups would remain open until December 31 each year, or until NMFS determines that the landings for any shark management group are projected to reach 80 percent of the quota given the realized catch rates and are projected to reach 100 percent of the quota before the end of the fishing season, or until a quota-linked species or management group is closed. For the regional or sub-regional Gulf of Mexico blacktip shark management group(s), regulations at § 635.28(b)(5)(i) through (v) authorize NMFS to close the management group(s) before landings have reached, or are projected to reach, 80 percent of the quota after considering the criteria and other relevant factors. NMFS manages each Atlantic shark management group by using a specific commercial annual catch limit, with some linkages among shark management groups whose species are often caught together. The linked and non-linked quotas are shown in Table 1.

If NMFS determines that shark species and/or management group must be closed, then NMFS will publish in the Federal Register a notice of closure for that shark species, management group, region, and/or sub-region. The closure will be effective no fewer than 4 days from the date of filing for public inspection with the Office of the Federal Register. In that event, from the effective date and time of the closure until the start of the following fishing year or until NMFS announces that the season is reopened and additional quota is available (via publication of another notice in the Federal Register ), the fisheries for the shark species and/or management groups will be closed.

In this final rule, NMFS adjusts the quota levels for the various shark stocks and management groups for the 2024 Atlantic shark commercial fishing year ( i.e., January 1 through December 31, 2024) based on underharvests that occurred during the 2023 fishing year, consistent with existing regulations at § 635.27(b). Overharvests and underharvests are accounted for in the same region, sub-region, or fishery in which they occurred the following year, except that large overharvests may be spread over a maximum of 5 fishing years. Unharvested quota may be added to the quota for the next fishing year, but only for shark management groups that have shark stocks that are declared not overfished and not experiencing overfishing. No more than 50 percent of a base annual quota may be carried over from a previous fishing year.

Based on 2023 harvests through September 18, 2023, and after considering catch rates and landings from previous years, NMFS adjusts the 2024 quotas for certain management groups as shown in Table 2. NMFS anticipates that dealer reports received after September 18, 2023 will be used to adjust 2025 quotas, as appropriate, noting that, in some circumstances, NMFS re-adjusts quotas during the subject year. A description of the calculations for each stock and management group is provided in the proposed rule and is not repeated here.

Written comments can be found at http://www.regulations.gov/ by searching “NOAA-NMFS-2023-0018.” Below, NMFS summarizes and responds to the two written comments received on the proposed rule during the comment period. Similar comments are combined, where appropriate.

Comment: NMFS received two comments that requested a prohibition on all shark fishing, expressing concern over the stock status of Atlantic shark species. Specifically, one of the comments stated that commercial harvest of sharks is not sustainable, and commercial shark fishing should be prohibited until shark populations have recovered.

Response: NMFS disagrees with the statement that commercial harvest of sharks is not sustainable. Under the Magnuson-Stevens Act, NMFS is required to foster the long-term biological and economic sustainability of fisheries, including the shark fishery. The majority of sharks harvested in the United States are from stocks with above-target population levels. For shark stocks that are overfished, NMFS has established rebuilding plans based on the best scientific information available. Most of these rebuilding plans include some level of commercial harvest. For those shark stocks that are experiencing overfishing, NMFS has implemented management measures, which may include strict catch limits, to end overfishing. The primary objective of this final rule is to adjust the base quotas and retention limits as necessary and consistent with existing regulations at §§ 635.24(a) and 635.27(b), and to change the default opening date for all Atlantic shark fisheries and the default retention limit measures for LCS fisheries for future fishing years. Prohibiting all shark fishing is contrary to that objective and to the requirements of the Magnuson-Stevens Act.

The NMFS Assistant Administrator has determined that this final rule is consistent with the 2006 Consolidated HMS FMP and its amendments, the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a final regulatory flexibility analysis was not required and none was prepared.

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

For the reasons set out in the preamble, NMFS amends 50 CFR part 635 as follows: